RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00308 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. The Enlisted Performance Report (EPR) rendered for the period ending 2 Aug 13 be revoked or removed from his records. 2. His Fitness Assessment dated 21 Jun 13 be removed from his records (administratively resolved). APPLICANT CONTENDS THAT: The contested performance report contains comments and errors that are prohibited by AFI 36-2406, Officer and Enlisted Evaluation Systems. His rater included a comment regarding his being convicted in a civilian court and receiving fine. This type of statement is prohibited as it references his punishment and it should have only referred to the underlying conduct or behavior that led to the action. According to the AFI, this type of comment is encouraged but is not mandatory. Per the AFI, his commander can direct a performance report and submit it for discharge. However, he believes the reason for the contested report is not justified as he does not meet any of the rules that fall under a Commander Directed report. The contested report should reflect “Directed by HQ USAF.” Furthermore, the AFI states the report should have closed out one day prior to the written notice of the proposed action. He received written notice on 19 Aug 13 and the contested report closed out on 2 Aug 13. Due to the contested report being directed by the commander, he was not given a midterm feedback as required by the AFI to show what areas he needed to improve. Since the report closed out before the projected close out and he did not receive the midterm feedback, it should have been documented that the feedback was not accomplished. He believes the “does not meet” standards rating he received for not maintaining fitness standards is unjust. Had the contested report closed out as required by the AFI, he would have been able to meet his originally scheduled fitness assessment and would have passed the assessment and received a rating of meets standards. Lastly, there was information missing that he provided to his rater to be included in the contested report. He appealed to the Evaluation Reports Appeal Board (ERAB) to remove or revoke the contested report. The ERAB denied his request indicating he did not provide sufficient evidence to support his allegations for removal of the contested report. He further believes since his records have been amended to remove the unsatisfactory fitness assessment and a Letter of Reprimand (LOR), the contested report should be removed. With the removal of the unsatisfactory assessment there is no basis for the mark down for failing fitness standards. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 3 Dec 93, the applicant commenced his enlistment in the Regular Air Force. On 21 Jun 13, the applicant participated in a FA, attaining an overall composite score of 72.78, which constituted an “unsatisfactory” assessment. A composite score of 75.00 is required for a “satisfactory” assessment. On 2 Aug 13, the contested EPR was referred upon the applicant for unsatisfactory ratings and comments regarding the applicant’s FA failure and conviction by a civilian court with a fine. The applicant filed an appeal through the ERAB. However, the applicant’s case was closed due him failing to provide additional supporting documentation. On 24 Mar 14, AFPC/DPSIM notified the applicant that the 21 Jun 13 fitness assessment had been removed from the Air Force Fitness Management Systems (AFFMS). On 12 Apr 14, the Letter of Reprimand related to his FA failure, dated 2 Jul 13, and his placement on the control roster was removed from his Unfavorable Information File by direction of the commander. On 30 May 14, the applicant was furnished an under other than honorable conditions discharge, with a narrative reason for separation of “Misconduct (Civil Conviction)” and was credited with 20 years, 5 months, and 28 days of active service. AIR FORCE EVALUATION: AFPC/DPSID recommends denial indicating there is no evidence of an error or an injustice. The applicant believes the comment on the contested EPR relating to his civil conviction and fine are prohibited by the AFI and should have only related to conduct or behavior that resulted in the punishment. He notes paragraph 1.12.7.3 states “punishment received as a result of administrative or judicial action is prohibited. Restrict comments to the conduct/behavior that resulted in the punishment and the type of administrative or judicial action taken (i.e., Article 15, LOR, LOC, etc.).” The applicant has misinterpreted this paragraph because it relates only to administrative or judicial punishment. The governing AFI makes no mention of a civilian conviction being prohibited. The applicant further contends mentioning his behavior is not mandatory, but only encouraged on evaluation reports. Actually evaluators are obliged to consider such incidents, their significance, and the frequency with which the incidents occurred in assessing performance and potential. In fact, the AFI encourages the use of comments relating to the individual being found guilty, pled guilty or no contest, of a reportable civilian offense. The applicant was found guilty in a civilian court. He has made no attempts to justify his actions or provide any evidence showing the comments on contested report were inaccurate or unjust. The inclusion of the referral comment on the contested report was appropriate and within the rater’s authority to document the incident. Moreover, a final review of the contested report was accomplished by the additional rater and subsequent agreement by the reviewer served as a final “check and balance” in order to ensure the report was given fair consideration in accordance with all applicable Air Force policies and procedures. The applicant further alleges he did not receive midterm feedback and that he was not advised on the areas he needed improvement. While current Air Force policy requires performance feedback for personnel, a direct correlation between information provided during feedback sessions and the assessments on evaluation reports does not necessarily exist. For example, if after a positive feedback session, an evaluator discovers serious problems, the evaluator must record the problems in the evaluation report even when it disagrees with the previous feedback. There may be occasions when feedback was not provided during a reporting period. Lack of counseling or feedback, by itself, is not sufficient to challenge the accuracy or justness of a report. Evaluators must confirm they did not provide counseling or feedback, and that this directly resulted in an unfair evaluation. Specific information must be provided about the unfair evaluation so the Board can make a reasoned judgment on the appeal. Finally, every airman knows the existing standards for indebtedness, weight, fitness, etc. Lack of counseling in these areas provides no valid basis for voiding a report. The applicant also alleged that while signing the report, he was not able to check “no” indicating he did not receive feedback. According to the governing AFI the ratee’s signature in the acknowledgment block does not constitute concurrence or nonconcurrence of the content or rating on the evaluation, it is an acknowledgement of receipt. The applicant believes the contested report unfair and not an accurate assessment of his performance. However, the applicant has failed to provide any evidence to substantiate the contested report was rendered unfairly or unjustly. Other than his own assertions, he has not provided any evidence to substantiate his allegations. The Board works under the assumption that evaluation reports are accurate and objective. When a report is accepted for file, only strong evidence to the contrary will warrant removal from a service member’s record. Furthermore, it is important to hear from the rating chain, not necessarily for support, but for clarification/explanation. The applicant has not provided any information or support from his rating chain regarding the contested reports. Without documentation from the rating chain, it must be concluded that the report is accurate as written. Air Force policy is an evaluation report is considered to represent the rating chain’s best judgment at the time it is rendered. Furthermore, 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 and he has not provided any evidence to show the contested report was unjust or inaccurate. The applicant further requested to have the mark down rating for failing his fitness assessment removed based on the memorandum from his wing commander removing the contested fitness failure. AFPC/DPSIM provided notification stating the contested fitness assessment was removed from the AFFMS, therefore, the mention of it on the contested report is inappropriate and should be amended to reflect “meets” as his previous fitness assessment was satisfactory. A complete copy of the AFPC/DPSID evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant refutes virtually every point made by the OPR and argues while the ERAB notes the AFI was referencing administrative or judicial punishment, it makes no mention of a civilian conviction. The reference is vague and leaves the door open to interpretation. A conviction in a civilian court of law is a judicial action. The AFI reference does not indicate whether it has to be military or civilian judicial action. Also, the AFI makes no reference about civilian convictions being prohibited. He was not stating the conviction was prohibited, but rather the underlying punishment stated in the comment was prohibited. The rater's comment is in error and needs to be voided. The Texas State First Court of Appeals has ruled the penal code he received his civilian conviction for is unconstitutional. He is appealing his civilian conviction and once it is finalized, he will seek additional action to further correct his military records. He contested that he did not receive a midterm feedback and that he could not check "no" in Section IX, Ratee's Acknowledgement on the contested report. The "yes" block was prefilled in by the reporting officials when he received the report for his signature. Therefore, since it was prefilled and he was unable to check “no” this should be considered as he did not receive all required feedback. He has provided factual evidence to the ERAB and has been accused of using his own opinion when he submitted his application. The ERAB is using its opinion in stating he did not provide any substantiating documents or evidence to contest the report in question. They also used their opinions in their interpretation of the AFIs. He has provided documentation showing the information on the contested report is not accurate. One of the Air Force core values is integrity and within integrity is honesty. Having this contested report with false information in his records without being corrected is not being honest and therefore not following the core values that the Air Force is must abide by. The applicant’s complete response is attached at Exhibit E. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant partial relief. While the applicant makes a variety of arguments in support of his request that the contested enlisted performance report (EPR) be declared void and removed from his records, we do not find the applicant’s arguments and evidence presented sufficient for us to recommend granting complete relief. The applicant’s principal argument seems to be that the EPR should be removed because it contains a prohibited comment regarding the punishment he received as a result of his civil court conviction. We note the governing AFI allows for comments on performance reports relating to an individual being found guilty, plead guilty or no contest, but does not allow the comments to reflect the type of punished received as a result of an administrative or judicial action. While the office of primary responsibility indicates that the prohibition against these comments do not relate to a civil court conviction, our review of the AFI reveals that it is silent on whether or not comments related to the punishment received from a civilian court conviction are permissible. While we believe it was appropriate for the rater to comment on the applicant’s civil conviction on the contested report, given the fact that the AFI does not indicate that different rules apply when the matter pertains to a civilian judicial action, we believe the contested comment about the punishment received was not in compliance with the noted provisions of the AFI. Therefore, while the applicant would argue that it would be appropriate to declare the report void and remove it from his records, we believe that it would be more appropriate to amend the contested comment to remove any mention of the punishment that was the result of the civilian conviction. In our view, this constitutes full and fitting relief. As for his request related to the referral rating and comments regarding the failed fitness assessment (FA), we note that since AFPC/DPSIM has administratively removed the contested FA from the Air Force Fitness Management System (AFFMS), there is no longer a basis for the referral comments or rating regarding the now removed FA. Accordingly, rather than remove the report, we conclude that it would be appropriate to amend the EPR to remove the comment and change the rating in this section to “Meets” standards as recommended by the Air Force OPR. Finally, as for the applicant’s argument that the EPR should be declared void because he was not provided midterm feedback and that he was not able to check “no” in ratee’s acknowledgement, we note according to Air Force policy, the lack of counseling or feedback, by itself, is not sufficient to challenge the accuracy, validity or justness of a report and that the ratee’s signature does not constitute concurrence or nonconcurrence of the content or rating on the report, it only acknowledges receipt. Accordingly, we recommend the applicant’s records be corrected to the extent indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show the Enlisted Performance Report, AF Form 910, rendered for the period 1 March 2013 through 2 August 2013, be amended in Section III, Performance Assessment as follows: a. Block 2. Standards, Conduct, Character & Military Bearing, by amending the comment “Convicted in civilian court of law for online solicitation of a minor—received 10 years’ probation & 10K fine,” to “Convicted in civilian court of law for online solicitation of a minor” b. Block 3. Fitness, be changed to reflect “Meets,” rather than “Does Not Meet” and the comment “member failed Air Force Physical Fitness Test composite score” be removed. The following members of the Board considered AFBCMR Docket Number BC-2014-00308 in Executive Session on 27 Jan 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence pertaining AFBCMR Docket Number BC- 2014-00308 was considered: Exhibit A. DD Form 149, dated 17 Jan 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSID, dated 11 Apr 14. Exhibit D. Letter, SAF/MRBR, dated 28 Jul 14. Exhibit E. Letter, Applicant, dated 28 Nov 14. 7