RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-05006

 	COUNSEL: NONE

	HEARING: YES

APPLICANT REQUESTS THAT:

His enlisted performance report (EPR) for the period ending 4 Aug 14 be removed from his record based on substantiated allegation of abuse of authority pursuant to DODD 7050.06, Military Whistleblower Protection, and 10 U.S.C. § 1034.  

APPLICANT CONTENDS THAT:

The contested EPR is erroneous and unjust.  He received positive feedback and his immediate rater validated the comments regarding his performance were not true.  There were six versions of the EPR.  AFPC returned the fifth version indicating the comments were too vague.  The final report similarly violates AFI 36-2406, Officer and Enlisted Evaluations, which requires specific comments when an additional rater non-concurs with a rater.    

He filed an inspector general (IG) complaint against his commander for presenting the EPR as a referral.  The 51st Fighter Wing Commander (51 FW/CC) ordered a commander directed investigation (CDI).  The CDI substantiated his complaint that he had been “unlawfully targeted.”  Evidence supports the intention of the EPR was to harm his ability to continue with a prosperous career.

The EPR was not finalized until Feb 16.  He appealed to the evaluation report appeals board (ERAB) on 28 Mar 17 and is not satisfied with their decision.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a master sergeant in the Air Force.

He received an overall rating of “4-Above Average” for the EPR ending 4 Aug 14 (not a referral).  His immediate rater marked the EPR as “5-Truly, Among the Best;” however, the additional rater non-concurred and stated “Member consistently displayed an above average overall level of performance during the reporting period.”  

The applicant provides letters dated 2 Dec 14 and 29 Jan 15 from his commander referring the EPR to him and draft versions of the EPR.   

On 5 Dec 14, the applicant filed an IG complaint alleging he was presented with an illegally altered and unsubstantiated EPR.  In his affidavit, he states he was singled out because of his religion.  

On 18 Mar 15, the 51 FW/CC ordered a CDI to investigate the applicant’s allegations whether any individual in his rating chain abused their authority during the drafting or issuance of the contested EPR and whether there was a hostile work environment in the squadron.  

The applicant provides a copy of a redacted CDI report of investigation (ROI) dated 13 May 15.  The ROI does not indicate whether the allegation his rating chain abused their authority was substantiated or unsubstantiated.  The allegation of a hostile work environment due to discrimination was unsubstantiated.   A memorandum for record (MFR) dated 15 Jun 15 shows the 51 FW/CC disapproved the IO’s conclusion the applicant’s rating chain abused their authority during the drafting or issuance of the EPR.  

The applicant provides e-mail thread from AFPC/DPSIDEP to his force support squadron (FSS) dated 6 May 17 stating that since the EPR did not specifically state he failed to meet expectations, the commander had the option to not refer the EPR.  AFPC also apologized for the delay and confusion on whether the EPR should have been a referral.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DP3SP recommends denial.  The additional rater’s comments document why he non-concurred with the rater’s assessment in accordance with AFI 36-2406.  The applicant has not provided proof the EPR was completed inaccurately or unjustly.  He filed an application to the ERAB but was denied relief.  The ERAB concluded the additional rater’s comment was not vague but documented his non-concurrence.

It cannot be definitively determined why the report was changed.  The version which included the comment “unable to adapt to pace” was returned due to the referral comments being vague.  The revised EPR, which then included the comment “missed suspenses/drove lag in focus areas” gave the applicant the right to appeal and as a result, was returned.  The EPR was again revised with the final version not constituting a referral report.  

There is reason to believe the IG substantiated the allegation the applicant’s rating chain abused their authority during the drafting or issuance of the EPR based on the memorandum from the 51 FW which states he disapproves the IO’s conclusion the rating chain abused their authority.  While there were procedural irregularities, the 51 FW/CC ultimately determined the additional rater and commander did not abuse their authority and unlawfully target the applicant during the evaluation or the documentation of his performance.  The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 19 Jun 18 for comment (Exhibit D).  In a memorandum dated 20 Jun 18, he states it is true the 51 FW/CC unsubstantiated the allegation.  He does not know why but it does not change the facts supported by the investigation.  The EPR that made it into his record is not a referral, which supports his case.  His commander abused his authority and singled him out.  His motives were to harm his career.  He is asking for only a bit of restitution.  The integrity of his 4 Aug 14 EPR is questionable at best.  Removing it will give him resolution.  He is willing to give up any rights to a supplemental promotion review to show how important this is to him.  He requests the Board remove the EPR because it is the right thing to do.  The applicant’s complete response is at Exhibit E.    

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.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  While the applicant contends he was reprised against and singled out, we find no evidence this to be the case.  The allegations of reprisal were investigated under 10 U.S.C. § 1034 and while it appears the IO indicated members of the applicant’s rating chain may have abused their authority; the 51 FW/CC upon review of the CDI and IG complaint unsubstantiated the allegation.  Moreover, it appears the numerous draft versions of the EPR and the delays in processing were the result of administrative errors and questions on comments requiring the report to be referred.  It appears the final version was reviewed by AFPC and determined not to be a referral EPR prior to it being made a matter of record.  In view of the above, the Board concurs with the rationale and recommendation of AFPC/DP3SP and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.   Therefore, the Board recommends against correcting the applicant’s records.

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 applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the 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 Docket Number BC-2017-05006 in Executive Session on 24 Jul 18:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 16 Nov 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP3SP, dated 27 Apr 18.  
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 19 Jun 18.  
Exhibit E.  Applicant’s response, dated 20 Jun 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.