RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02896 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: Her Enlisted Performance Reports (EPR), rendered for the periods 2 Aug 90 through 31 Mar 90 and 1 Apr 90 through 31 Mar 91, be reevaluated and she receive promotion consideration to grade of staff sergeant (E-5). ________________________________________________________________ APPLICANT CONTENDS THAT: She was sexually assaulted while on active duty by a member of her chain of command. She was also subjected to racial discrimination by her rater from 2 Aug 90 through 31 Mar 91. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant commenced her initial period of service in the Regular Air Force on 31 Jul 85. On 4 Mar 95, she was released from active duty with service characterized as honorable and was issued a narrative reason for separation of “Early Release Program – Special Separation Benefit.” She was credited with nine years, seven months, and four days of total active service. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial due to the extensive delay in the submission of this request and no evidence was provided showing the reports in question were inaccurate as written or unjust. The applicant did not file an appeal through the Evaluations Report Appeals Board (ERAB). The contested reports have been a matter of record for over 23 years. The test to be applied is not merely whether the applicant discovered the error within three years, but whether through due diligence, she could or should have discovered the error. The applicant has not provided any reason as for the delay in submitting her claim. Her delay in filing this appeal has caused prejudice to the Air Force as relevant records are no longer available, memories have failed, and witnesses are unavailable, which complicates the ability to determine the merits of the case. In Dec 87, the Deputy Chief of Staff, Personnel, directed a study on 20 year old non-commissioned officer and airman performance reports (APR) system, to identify any problems, and make recommendations as to whether any changes needed to be made. It was determined that the system was administratively burdensome and it had two basic problems; most people did not view the APR as a feedback device, and rating and endorsement inflation had limited the APR's value in making management decisions. As of 1 Oct 89, all Enlisted Performance Reports (EPR) closing on Sergeants/Senior Airmen must be accomplished on the new AF 910, Enlisted Performance Report (AB thru TSGT). The applicant alleges her previous performance reports were exceptional; however, without any evidence to support otherwise, DPSID can only conclude she was accurately rated with the AF 910's in 1990 and 1991. No evidence was provided showing the contested EPRs were inaccurate or unjust. A final review of the contested reports was accomplished by the endorser and subsequent agreement by the commander served as a final "check and balance" to ensure that the reports were given a fair consideration in accordance with the evaluation system in place at that time. Based upon the evidence provided, or lack thereof, the contested reports were accurate and in accordance with any applicable Air Force policies and procedures. The applicant has provided unsupported allegations, personal opinions, and no proof that any of the events occurred as she alleges happened. Unsubstantiated conjecture about the motives of the evaluators, or how/why the report turned out as it did do not contribute to the case. The applicant must provide factual, specific, and substantiated information that is from credible officials and is based on firsthand observation. The ERAB works under the assumption that evaluation reports are accurate and objective. Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual's record. The burden of proof is on the applicant to prove an error or injustice. She has not substantiated that the contested EPRs were not rendered in good faith by all evaluators based on knowledge available at the time. Furthermore, statements from any of the evaluators during the contested period are conspicuously absent. In order to successfully challenge the validity of an evaluation report, it is important to hear from the evaluators-not necessarily for support, but at least for clarification/explanation. The applicant has not provided any documentation from her rating chain. Without benefit of these statements, it must be concluded that the EPRs are accurate as written. Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record. Additionally, it is considered to represent the rating chain's best judgment at the time it is rendered. A complete copy of the AFPC/DPSID evaluation is at Exhibit C. AFPC/JA recommends denial indicating the applicant's request should be denied based on her failure to file a timely application. Even if the time standards were waived and her application was considered on the merits, there was no evidence showing the applicant was the victim of an error or injustice. The applicant received an overall rating of “4” on the contested EPRs. Both EPRs reflect several mark-downs, the most notable is the 31 Mar 91 EPR with a "Meets Air Force standards" under "How Well Does Ratee Comply With Standards?" This called for the rater to consider the applicant’s dress and appearance, weight and fitness. Both EPRs contain the signatures of senior raters in the rank of SMSgt (E-8) who concurred in the ratings, but were not named as part of this request. The applicant noted in her claim to the Department of Veterans Affairs (DVA) that she was a distinguished graduate in leadership school and that her rater told her he expected Airman K. (who was white) to be an honor student, but not the applicant. This is the only specific mention of any possible racial discrimination made by the applicant against her rater. The applicant’s supporting statements appear to be based on information they received from the applicant and deal with the alleged sexual assault by her commanding officer. The applicant further indicated she reported the assault to her rater and he overlooked the complaint. The applicant believes the evaluation she received from her rater combined with the information she provided, explains why she did not make SSgt (E-5). The alleged error or injustice in this case occurred 23 years ago. It is clear the applicant was aware of the challenged behavior in 1990 and 1991. Based on the available evidence, the applicant never raised the alleged error or injustice until 2013. The applicant has not provided an adequate explanation for the delay or any explanation as to why it would be in the interest of justice for the Board to waive the time limit. Instead, she claims that she was devastated and did not know what to do at the time, and just recently been made aware of her rights as an Air Force veteran, and due to the stress and fear she has been mentally incapable for 24 years. If the circumstances in 1990-1991 were really as egregious and devastating as the applicant suggests in the application, it hardly seems reasonable that she would not have complained in some way or sought redress closer in time to the alleged injustices. The applicant has not provided any corroborating evidence that she was discriminated against, such as, Inspector General (IG) complaint or any other independent investigative report. The applicant has failed to show any error with respect to her military record that resulted from the alleged assault or that the Board could correct. The available records do not show a connection between the applicant's allegations against her commanding officer and the disputed EPRs. The commanding officer was not in her rating chain, and she did not identify how he may have influenced her rater or her senior raters in evaluating her performance on two of the four EPRs that were accomplished during his time as commanding officer. The sexual assault allegations seem to be part of a more general claim that the applicant suffered injustice throughout her rating periods and should be given a reassessment based on all the injustices experienced by her before her discharge. While the lifelong trauma applicant states she has suffered may be very real, it does not translate to a basis to remove the questioned EPRs or promote her retroactively to staff sergeant. A complete copy of the AFPC/JA evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 9 May 14 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant contends the contested performance reports were unjust. She alleges she was sexually assaulted by an individual in her chain of command and was subjected to racial discrimination by her rater. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. There was no evidence provided showing the contested reports were not an accurate assessment of her performance during the periods in question, were erroneously prepared, or that the assigned ratings were in error or contrary to the provisions of the governing instruction. Furthermore, we found no evidence to substantiate her allegations of discrimination against her by her rater. We note the applicant’s assertions of being sexually assaulted by her commander during the period in question. We note the commander was not in her rating chain during the period in question, and there is no evidence he influenced her rating chain in evaluating the applicant’s performance. While we do not take allegations of sexual assault lightly, and are sensitive to the applicant’s well-being, neither the evidence of record, nor the documentation provided show a connection between the contested EPRs and the alleged sexual assault. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-02896 in Executive Session on 10 Jun 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-02896 was considered: Exhibit A. DD Form 149, dated 3 Jun 13, w/atchs. Exhibit B. Applicant's Master Personnel Records Exhibit C. Letter, AFPC/DPSID, dated 11 Apr 14. Exhibit D. Letter, AFPC/JA, dated 23 Apr 14 Exhibit E. Letter, SAF/MRBR, dated 9 May 14. 1 2