RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-04347

XXXXXXXXXXXXXXXXXXX	COUNSEL:  XXXXXXXXXXX
	
	HEARING:  YES

APPLICANT REQUESTS THAT:

His referral Enlisted Performance Report (EPR), with close out date of 31 Jan 16, be reconsidered or removed based upon good cause.

APPLICANT CONTENDS THAT:

The EPR was based upon a civilian conviction for an incident that occurred 20 years before the rating period and 8 years prior to his enlistment.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a currently serving Air Force Staff Sergeant.  

On 4 Nov 15, an Air Force Administrative Discharge Board found a punitive discharge would not be authorized for the same or closely related offense under the Manual for Courts-Martial, there was no basis for discharge based on a civilian conviction, and recommended the applicant be retained in the service.

On 20 Jun 17, the Evaluation Reports Appeal Board disapproved the applicant’s request to remove the EPR, with close out date of 31 Jan 16, from his military record.  

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:

AFPC/DP3SP recommends granting the application.  Additionally, the applicant should be awarded a “Must Promote” recommendation for the time period, given the statements from the rating chain, past and current.  The applicant provided substantial evidence to support a waiver of documenting this conviction, to include an excerpt of the civilian court transcript wherein the presiding judge questions the appropriateness of the law under which the applicant was convicted.  While Air Force Instruction (AFI) 36-2406, Officer and Enlisted Evaluation Systems, requires EPR comments regarding the applicant’s conviction, the applicant was denied due process via a waiver to the appropriate authority, based upon extraordinary circumstances.  The complete advisory is at Exhibit C.

AFPC/JA recommends denying the application.  While an EPR rater may request a waiver, in accordance with AFI 36-2406, there is no requirement that they do so.  There is no evidence of error in the record; however, the Board may determine whether an injustice occurred based upon the information provided by the applicant.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 12 Jun 18 for comment (Exhibit E), and the applicant replied on 9 Jul 18.  In his response, counsel, on behalf of the applicant, contended he was charged for an incident that occurred when the applicant was a juvenile, and eight years before he joined the Air Force.  The offense reported could not have been prosecuted by the military, and due to the applicant’s juvenile status, would not have precluded his joining the Air Force.  Additionally, the waiver of mandatory reporting afforded by AFI 36-2406 should have been exercised due to the extraordinary circumstances.  The applicant’s complete response is at Exhibit F.

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, it is the Board’s opinion the applicant is the victim of an injustice.  While the Board notes the comments of AFPC/JA indicating relief should be denied based upon the lack of error in the record, the Board concurs with the rationale and recommendation of AFPC/DP3SP and believes a preponderance of the evidence substantiates the applicant’s contentions.  The Board found the excerpt from the civilian court transcript, provided by the applicant, particularly compelling.  The incident for which the applicant was convicted occurred while he was a juvenile and well before he enlisted in the Air Force.  Additionally, a review of his previous and current EPRs, supporting character statements to include one from the Wing Chaplain and his Commander attesting to his character, solid work ethic and consistent track record of performance, we find the applicant’s conduct and performance since his enlistment above reproach and meets the extraordinary circumstances which warrants removal of the referral EPR.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

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 the Board’s 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 his Enlisted Performance Report for the period 1 February 2015 through 31 January 2016, be voided and replaced with an Air Force Form 77, Letter of Evaluation, stating “Evaluation was removed by order of the Secretary of the Air Force and a promotion recommendation of “Must Promote” be awarded.”

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 Docket Number BC-2017-04347 in Executive Session on 13 Aug 18:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 29 Nov 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP3SP, dated 27 Apr 18.
Exhibit D:	Advisory opinion, AFPC/JA, dated 6 Jun 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 12 Jun 18.
Exhibit F:	Applicant’s Response, w/atchs, dated 9 Jul 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.