RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00232

XXXXXXXX		COUNSEL: XXXXXXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  Removal of his Letter of Reprimand (LOR) dated 18 Oct 18. 
2.  Removal of his Referral Officer Performance Report (OPR) for the period 2 Jul 18 to 1 Dec 18.

APPLICANT’S CONTENTIONS

The LOR and Referral OPR are not supported by evidence.  Charges referenced for the events of 14 Aug 18, were ultimately dismissed by the Criminal District Attorney on 13 Jun 19.  At the time of the receipt of the LOR (18 Oct 18) and subsequent referral OPR (4 Apr 19), the case was still pending litigation with no final disposition decision having been made.  Since that time the case has been dismissed with no criminal action taken.  Application to the Evaluation Reports Appeal Board (ERAB) for removal of the Referral OPR was denied.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is currently serving as a captain (O-3) in the Regular Air Force.

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

APPLICABLE AUTHORITY

Air Force Instruction (AFI) 36-2907, Unfavorable Information File (UIF) Program: 

Paragraph 4.1. Who Can Use Counseling, Admonitions, and Reprimands.  Commanders, supervisors, and other persons in authority can issue administrative counseling, admonitions, and reprimands.  These actions are intended to improve, correct, and instruct subordinates who depart from standards of performance, conduct, bearing, and integrity, on or off duty, and whose actions degrade the individual and unit's mission.  This includes issuing administrative counseling, admonitions, and reprimands to reservists who commit an offense while in civilian status.
4.1.3. Standard of Proof.  While no specific standard of proof applies to administrative action proceedings, commanders should utilize the “preponderance of the evidence” standard when evaluating the evidence and every element of the offenses committed.  A preponderance of the evidence means simply the greater weight of credible evidence.  Whether such proof is available should be considered before initiating the administrative action.  If such proof is lacking, administrative action is susceptible to being found to be legally unsupportable and, as a result, could be set aside.  There is no requirement to prove any allegation beyond a reasonable doubt.

Paragraph 4.4. LORs.  A reprimand is more severe than a counseling or admonition and indicates a stronger degree of official censure.  Commanders may elect to file a LOR in an UIF for enlisted personnel.  LORs are mandatory for file in the UIF for officer personnel.  
4.4.1. For officer personnel only: If a person other than the unit commander issues a LOR, send it to the unit commander for acknowledgment and endorsement via AF Form 1058, Unfavorable Information File Actions, and establish/file in an UIF.  Include the member’s written acknowledgment and any documents submitted by the member.  
4.4.2. The AF Form 1058 does not need to be referred to the officer since the rebuttal opportunity is offered at the time the LOR is administered.  The AF Form 1058 is used only to obtain the commander’s acknowledgment of the action (for LORs administered by personnel other than the commander) and to refer the LOR for file in the UIF.

AFI 36-2406, Officer and Enlisted Evaluation Systems:

Paragraph 1.10.1. Purpose.  Referral procedures are established to allow the ratee due process by giving the ratee an opportunity to respond and/or rebut any negative ratings or comments before it becomes a matter of record.  Additionally, it allows evaluators to consider all the facts, some they may not have been aware of, prior to the evaluation becoming a matter of record.

Paragraph 1.11. Mandatory Comments.  Specific comments or entries mandated by this AFI are identified by the instruction to “enter” or “include the statement,” followed by the specific comment placed within quotation marks and should be entered on the evaluation exactly as shown.  Acceptability of comments that deviate slightly from the AFI will be handled on a case-by-case basis.  Entries deviating greatly are not acceptable.

Paragraph 1.12. Prohibited Evaluator Considerations and Comments.  Certain items are prohibited for consideration in the performance evaluation process and will not be commented upon on any Officer Evaluation System/Enlisted Evaluation System (OES/EES) form.  Except as authorized in the following paragraphs, do not consider, refer to, or include comments regarding:
1.12.4. Sensitive Information.
1.12.4.3. Appeal Agencies Outside Rating Chain.  Actions taken by an individual outside the normal chain of command that represent guaranteed rights of appeal. Example: Inspector General, Air Force Board for Correction of Military Records, Equal Opportunity and Treatment/Military Equal Opportunity (EOT/MEO) complaints, Congressional Inquiries, etc.
1.12.6. Performance Outside the Reporting Period.
1.12.6.4. Events That Occur After the Close-Out Date (Officer Only). 
1.12.6.4.1. If an incident or event occurs, that reflects a departure from standards and are derogatory in nature, between the time an annual or initial evaluation closes-out and the time it becomes a matter of record that is of such serious significance that inclusion in that evaluation is warranted, an extension of the close-out date may be requested by the unit commander.  
1.12.6.4.2. This includes completion of an investigation begun prior to the close-out date or confirmation of behavior that was only alleged as of the close-out date.
1.12.7. Derogatory Information and Disciplinary Actions.
1.12.7.1. Conduct Based on Unreliable Information.
1.12.7.1.3. Raters should be particularly cautious about referring to charges preferred, investigations, or boards of inquiry (such as accident investigation boards), or using information obtained from those sources, or any similar actions related to a member, that are not complete as of the close-out date of the evaluation. 
1.12.7.1.4. When it is determined that such conduct is appropriate for comment, refer to the underlying performance, behavior or misconduct itself and not merely to the fact that the conduct may have resulted in a punitive or administrative action taken against the member, such as a letter of reprimand, Article 15, court-martial conviction, etc.
1.12.7.2. Acquittals or Similar Results. 
1.12.7.2.1. Any action against an individual that resulted in acquittal or a failure to successfully implement an intended personnel action is prohibited.  For example, an evaluator cannot say: “SSgt Johnson was acquitted of assault charges,” or “SrA Smith’s involuntary separation action was unsuccessful.” 
1.12.7.2.2. This does not mean, however, that evaluators cannot mention the underlying conduct that formed the basis for the action.

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denying the applicant’s request to remove his LOR.  On 14 Aug 18, the applicant got into an argument and called 911 for assistance.  After experiencing initial embarrassment, he went to his chain of command and was open and honest with them about his personal situation.  Following the incident, the alleged victim signed and filed Affidavits of Non-prosecution on 28 Sep 18.  She also wrote a memorandum relating to the events of 14 Aug 18.  Additionally, in the memo, she explains why she was living with the applicant while he was still married.  On 18 Oct 18, the applicant’s commander issued him a LOR for being arrested (not charged) on 14 Aug 18.  The applicant subsequently received a referral OPR.

Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice. The commander and supervisor has authority to issue a LOR in accordance with (IAW) AFI 36-2907, paragraph 4.1.  Furthermore, IAW AFI 36-2907, paragraph 4.1.3 there is no requirement to prove any allegation beyond a reasonable doubt.

The complete advisory opinion is at Exhibit C.

AFPC/DP3SP, recommends denying the applicants request to remove his Referral OPR.  The applicant did file an ERAB application; however, based on the documentation provided, the ERAB was not convinced of an error or injustice.  The dismissal of the charges does not negate the actions of the applicant at the time the report was rendered.  As such, the applicant’s request to void the OPR was denied.  The applicant received a referral OPR with the following comment: “Arrested for domestic dispute, causing failure to show for duty as ldr of sq while CC TDY—received LOR/UIF.”  The applicant provided a rebuttal apologizing for his actions and alleging the actions were in self-defense.  The applicant provided a statement from the alleged victim expressing her desire not to press charges on the applicant and stating that the incident was just a misunderstanding.  However, she did not go into specific detail of what transpired; therefore, it cannot be determined whether the applicant acted in self-defense or that the behavior did not occur. 

The applicant has also provided court documentation of the state’s motion to dismiss the charges against the applicant.  However, based on what is indicated on this documentation, it appears the charges were dismissed due to an agreement for the applicant to complete community service or reasons other innocence.  Based on the analysis of the facts and documentation provided, the applicant has provided insufficient evidence to substantiate an error or injustice in regards to the contested OPR as the reason for the referral still exists.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 3 Aug 20 for comment (Exhibit D), and applicant’s counsel replied on 12 Jul 19.  In her response, counsel takes exception to the AFPC advisory opinions; specifically, Paragraph C of the AFPC/DP3SP opinion, which states, “The applicant also provided court documentation of the state’s motion to dismiss the charges against the applicant.  However, based upon what is indicated on this documentation, it appears the charges were dismissed due to an agreement for the applicant to complete community service or reasons other than innocence.”  This is patently false.  The applicant’s attorney indicated the case was dismissed entirely due to lack of evidence with no requirement for community service, which would imply some finding of culpability.  To be clear, there has been no such finding in this case.  The Air Force’s decision to document an unsubstantiated and unproven criminal allegation, which was dismissed by prosecutors who are experts in this area of the law, defies the applicant’s rights to due process and presumption of innocence.  It is wholly inappropriate to use an LOR to “punish” a service member for an allegation that was considered and then rejected by actual experts in the field.  The complete response is at Exhibit F.

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.  The Board concurs with the rationale and recommendations of AFPC/DP2SSM and AFPC/DP3SP, and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Applicant’s counsel contends the case has been dismissed with no criminal action taken and therefore the LOR is legally insufficient and should be removed along with the referral OPR.  However, the Board disagrees.  The dismissal of the charges does not negate the actions of the applicant at the time the LOR and OPR were rendered.  As such, absent evidence the applicant was denied rights to which he was entitled, appropriate regulations were not followed, the evaluators abused their discretionary authority, or appropriate standards were not applied, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2020-00232 in Executive Session on 15 Sep 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 15 Dec 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSM, dated 21 Feb 20.
Exhibit D:	Advisory opinion, AFPC/DP3SP, dated 26 Jul 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 3 Aug 20.
Exhibit F:	Counsel’s response, dated 12 Jul 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.