RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-03395

XXXXXXXXXXXXXX	COUNSEL:  NONE

HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.	His referral Enlisted Performance Report (EPR) for the period 1 Apr 17 to 31 Mar 18, be voided and removed from his records.

2.	He be promoted to the grade of senior airman (SrA/E-4) and receive back pay and allowances commensurate with his grade from 5 Oct 17 to 20 Feb 19.

APPLICANT’S CONTENTIONS

His referral EPR was unjust. Specifically, the LOR that formed the basis for his referral EPR was never placed in an Unfavorable Information File (UIF) and was subsequently destroyed after he was discharged from active duty.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force airman first class (A1C/E-3). He was credited with 3 years, 10 months and 7 days of active duty service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C - E.

AIR FORCE EVALUATION

AFPC/DP2SSM, recommends partially granting the application. However, there is not action required to remove the letter of reprimand as it was removed from the applicant’s military record prior to his discharge.

The complete advisory opinion is at Exhibit C.
AFPC/DP3SP recommends denying the application. Based on the analysis of the facts and documentation provided, as well as the law requirements, the applicant has provided insufficient evidence to substantiate an error or injustice in regards to the contested EPR. In addition, the applicant did not file an Evaluation Review Appeal Board (ERAB) application.

The applicant received a referral EPR with the following comment, “Received LOR from SFS/CC for Article 120 (Abusive Sexual Conduct).” By the applicant’s own admission, the LOR was placed in his personnel information file (PIF) and destroyed after the discharge board. However, AFI 36-2406, Officer and Enlisted Evaluations Systems, paragraph 10.2.4.10.1. states, “Removal does not mean the action did not take place. If the corrective action existed on or before the close- out date of the evaluation, the evaluation is still valid.”

Furthermore, the 2014 National Defense Authorization Act (NDAA) mandates the documentation of sex related offenses to be documented in a service member’s next performance report. This includes LORs, non-punitive LORs and counseling statements. This was in order to provide increased visibility to commanders and to identify and prevent trends of unacceptable behavior at an early stage.

AFI 36-2907, Unfavorable Information File (UIF), paragraph 4.4., states, “Commanders may elect to file a LOR in an UIF. Based on the information provided, the applicant’s commander elected to file the LOR in his PIF versus UIF. However, this does not negate the fact the applicant received a LOR during the reporting period. The commander considered the applicant’s rebuttal to the referral EPR, but chose to uphold the referral. The applicant states he was found not guilty by the discharge board; however, he did not provide any documentation from the discharge board determination. While the discharge board may have retained the applicant, this decision does not negate the requirement to document the offense of Article 120, which appears the applicant was found to have violated.

The complete advisory opinion is at Exhibit D.

AFPC/DP2SPP makes no recommendation, indicating SrA/E-4s are not selected for promotion. They become eligible for promotion based on time-in-grade (TIG)/time-in-service (TIS), and the recommendation of their commander.

Based on the applicant’s date of rank (DOR) to A1C (5 Jun 15), he was eligible for promotion to SrA on 5 Oct 17. However, his upcoming promotion was placed in a withhold status (under investigation) in Jun 17. Subsequently, he received a referral EPR for the period closing 31 May 18; therefore, rendering him ineligible for promotion until he received a non-referral report.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 13 Nov 19 for comment (Exhibit F), but has received no response.

FINDINGS AND CONCLUSION

1.	The application was timely filed.

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

3.	After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice. While the Board notes AFPC/DP2SSM partial relief recommendation, the Board also notes that the LOR is not part of the applicant’s military record and was removed prior to the applicant’s discharge; therefore, no action on this portion of the request is required. Therefore, the Board concurs with the rationale and recommendation of AFPC/DP3SP and AFPC/DP2SPP and finds a preponderance of the evidence does not substantiate the applicant’s contentions. Therefore, the Board recommends against correcting the applicant’s record.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2019-03395 in Executive Session on 25 Feb 20:

, Panel Chair
, Panel Member
, Panel Member
All members voted against correcting the record. The panel considered the following: Exhibit A: Application, DD Form 149, w/atchs, dated 2 Jul 19.
Exhibit B: Documentary evidence, including relevant excerpts from official records. Exhibit C: Advisory opinion, AFPC/DP2SSM, dated 6 Sep 19.
Exhibit D. Advisory opinion, AFPC/DP3SP, dated 12 Oct 19. Exhibit E: Advisory opinion, AFPC/DP2SPP, dated 5 Nov 19.
Exhibit F. Notification of advisory, SAF/MRBC to applicant, dated 13 Nov 19.
Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.