RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: 

	COUNSEL:  

	HEARING:   YES

APPLICANT REQUESTS THAT:

His Article 15 be removed from his Officer Selection Record (OSR).   

His referral officer performance report (OPR) be removed his record.  

He receive special selection board (SSB) consideration for promotion to major.  

APPLICANT CONTENDS THAT:   

The Article 15 should have been removed from his OSR.  The error resulted in his nonselection for promotion to major and discharge from the Air Force Reserve.    The referral OPR should also be removed as a result of the removal of the Article 15.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a former captain in the Regular Air Force and Air Force Reserve.  

He entered the Regular Air Force on 13 Jun 04.  

On 8 Mar 12 he received an Article 15 for an inappropriate unprofessional relationship with a female enlisted member.  Punishment included a reprimand and forfeiture of pay for two months.  

He received a referral OPR for the reporting period ending 16 Apr 12 for an unprofessional relationship for which he received the Article 15.  On 28 Mar 12, the 5 AF/CC determined the Article 15 would be filed in his OSR.  

On 20 Oct 14, he was honorably discharged from active duty and transferred to the Air Force Reserve on 21 Oct 14.  

On 28 Jan 16, the 5 AF/CC approved the removal of his Article 15 from his OSR in accordance with AFI 36-2608, Military Personnel Records System, which states an Article 15 may be removed from an OSR after the officer has been afforded an in the promotion zone (IPZ) or above the promotion zone (APZ) promotion consideration.   

On 1 Oct 16, he was discharged from the Air Force Reserve.   

Per AFI 36-2406, Officer and Enlisted Evaluation Programs, paragraph 10.1.4, Retired or separated personnel are not eligible to apply for correction through the Evaluation Reports Appeals Board (ERAB) and must submit a DD Form 149, Application for Correction of Military Records, to the AFBCMR  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and D.

AIR FORCE EVALUATION:

ARPC/PB recommends approval for SSB consideration.  The Article 15 was removed from his OSR on 28 Jan 16 prior to the convening of the V0416A board; however, ARPC pulled his OSR to meet the board which convened in Feb 16 with the Article 15 still in his record.   

ARPC/PB recommends denial of the request for removal of the referral OPR as he did not exhaust the available administrative remedy of applying to the ERAB prior to submitting his application to the AFBCMR.  The applicant also provided no documentation to demonstrate the referral OPR was unjustly given.  The complete advisory is at Exhibit C.

AFLOA/JAJM recommends denial for removal of the Article 15.  The applicant received non-judicial punishment (NJP) for fraternization with a staff sergeant.  The 5 AF/CC determined the NJP would be filed in his OSR.   The exercise of discretion by the commander should generally not be reversed or otherwise changed on appeal by the Board absent good cause.  The complete advisory is at Exhibit D.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 22 Feb 18 for comment (Exhibit E), but has received no response.  

THE BOARD CONCLUDES THAT:

1. The application was timely filed.  

2. The applicant exhausted all available avenues of non-judicial relief before applying to the Board.  

3. After thoroughly reviewing all Exhibits, the Board finds insufficient evidence for removal of his referral OPR. ARPC/PB recommends denial based on his failure to exhaust the available administrative remedy by applying to the ERAB prior to submitting his application to the AFBCMR.  However, given he was discharged from the Air Force Reserve on 1 Oct 16 and is no longer eligible to apply to the ERAB, his application is ripe for adjudication by this Board.  The applicant asserts the referral OPR should be removed from his record based on the removal of the Article 15 from his OSR; however, we disagree.  The decision to remove the Article 15 from his OSR is not based on any evidence the Article 15 was improper or that he did not commit the offenses for which he received nonjudicial punishment.  Moreover, the applicant has not provided any evidence to indicate the OPR was unjust or inaccurate as written.  Therefore, the Board finds that a preponderance of the evidence does not substantiate the applicant’s contentions.

4. Notwithstanding the above, the Board finds the applicant is the victim of an error or injustice to warrant partial relief.  Due to an administrative error, the applicant’s Article 15 was not removed from his OSR prior to the convening of the promotion board.  Therefore, the Board concurs with ARPC/PB and finds that a preponderance of the evidence substantiates approval for SSB consideration.  The Board recommends the applicant’s records be corrected to the extent indicated below.  

5.  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 issues involved.

THE BOARD RECOMMENDS THAT: 

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that he be considered by an SSB for the CY16 Participating Line and Nonline Major Promotion Selection Board.

The application was adjudicated without a personal appearance.  

CERTIFICATION: 

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered AFBCMR Docket Number BC-2017-00421 in Executive Session on 27 Mar 18:

All members voted to correct the record.  The panel considered the following:

Exhibit A: Applicant’s application, DD Form 149, dated 7 Feb 17, w/atchs.
Exhibit B: Documentary evidence, including excerpts from official records.
Exhibit C: Advisory opinion, ARPC/PB, dated 1 Nov 17.
Exhibit D. Advisory opinion, AFLOA/JAJM, dated 20 Feb 18.
Exhibit D: Notification of Advisory, SAF/MRBC to applicant, dated 22 Feb 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.