RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2020-03005

XXXXXXXXXXXX	COUNSEL:  NONE

 	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

1.  His Unfavorable Information File (UIF)/all derogatory information be removed from his record.

2.  His referral AF Form 911, Enlisted Performance Report (MSgt thru CMSgt), rendered for the period 25 May 11 thru 5 Feb 12, be declared void and removed from his record.

3.  He be retroactively promoted to the grade of senior master sergeant (E-8).

APPLICANT’S CONTENTIONS

After volunteering to serve as a First Sergeant, he was accused of being absent without leave (AWOL) based on an administrative error associated with leave in conjunction with a permanent change of station, with a temporary duty enroute.  He learned from the Area Defense Counsel that his unit recommended he be court-martialed; however, the recommendation lacked support.  The next recommendation was for administrative demotion to technical sergeant (E-6), which was denied.  Ultimately, he was removed from the First Sergeant career field, given a Letter of Reprimand (LOR), a UIF, and a referral enlisted performance report (EPR).  The actions taken against him effectively ended his Air Force career.  He struggles with what happened to this very day and has not been able to get past it.  It haunts him; so much so, he was diagnosed with post-traumatic stress anxiety.  He has not been the same person and doubts he will be again.

The best defense he has in the fight to live a normal life is to do his best to avoid triggers.  The current events happening in our nation with racial injustice, coupled with a new report detailing the Air Force’s longstanding racial differences in its military justice system, has been a trigger he simply could not avoid.  As an African American male, he has had to deal with more than his fair share of biases and blatant racism.  Even with that, he volunteered to serve this nation because he wanted to make a difference.  He volunteered to become a First Sergeant because he wanted to make a difference.  He was on the path of doing just that, but the opportunity was snatched from him and essentially destroyed his career and damaged his faith in being treated fairly.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force master sergeant (E-7).

On 26 Jan 94, the applicant enlisted in the Regular Air Force.

On 23 Aug 95, the applicant received nonjudicial punishment for on or about 3 Jun 95 through      7 Jun 95 and 26 Jun 95 through 14 Jul 95, with intent to defraud, falsely pretend to take leave that he was not charged for, wrongfully obtain services totaling in value of about $1,279.20, to wit:  24 days of chargeable leave.  He was sentenced to a suspended reduction to the grade of airman (E-2), forfeiture of $150 pay, and 30 days extra duty.  On 25 Aug 95, the action was found legally sufficient.
On 10 Jan 12, the commander denied the applicant the Air Force Good Conduct Medal for behavior exhibited from 16 Aug 11 to 6 Sep 11 that did not meet Air Force regulations.

On 14 Feb 12, the applicant’s EPR was referred to him due to the comments and ratings relative to his LOR for being AWOL and removal from his First Sergeant special duty position based on his commander’s loss of confidence.  He acknowledged receipt and elected to submit comments.

On 31 Jan 13, the AFBCMR reviewed the applicant’s request to remove his referral EPR for the period ending 5 Feb 12 and referred the request to the Air Force Personnel Center (AFPC) (BC-2013-00137 at Exhibit B).

	On 12 Mar 13, AFPC/DPSIDE responded to the applicant’s request indicating that he failed to exhaust administrative relief through the Evaluation Reports Appeal Board (ERAB).  They noted in accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems, the ERAB works under the assumption that evaluation reports are accurate and objective and that the applicant must provide strong evidence to overcome the report’s presumed validity.  In addition, when documenting appeals, applicants must provide convincing documentation; offer clear evidence that the original evaluation was unjust or wrong; and quality, not quantity of documentation is the issue.  The most effective evidence consists of statements from the original evaluators who signed the report or from other individuals in the rating chain when the report was signed.  As an alternative, applicants may use support statements from other credible sources or reviewing agencies (such as the Inspector General, Equal Opportunity and Treatment, Commander Directed Investigation, etc.) that have firsthand knowledge of the allegations and can validate or confirm any perceived error or injustice.  They invited the applicant to submit an application with all required supporting documentation to the ERAB for consideration. 

On 31 Jan 15, the applicant was separated from the Air Force for the purpose of retirement, effective 1 Feb 15.  He was credited with 21 years and 6 days of active service.

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

APPLICABLE AUTHORITY

AFI 36-2907, Unfavorable Information File. Commanders, supervisors, and other persons in positions of 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.  Raters must consider making comments on performance reports when the ratee receives any of these adverse actions.

Commanders at all levels have authority to establish, remove, or destroy UIFs on enlisted members assigned or attached to their units.  Commanders maintain the UIF and its documents until the final disposition date unless early removal of the documents is clearly warranted.  Policy states that once the UIF expires, or the member separates or retires, the UIF is destroyed.  In accordance with disposition instructions, the applicant’s LOR and UIF expired prior to his retirement and are not filed in his official military record.

The Inspector General (IG) Department of the Air Force, Report of Inquiry, Independent Racial Disparity Review, dated Dec 20.  The Independent Review confirmed racial disparity exists for Black service members in law enforcement apprehensions, criminal investigations, military justice, administrative separations, placement into occupational career fields, certain promotion rates, professional military educational development and leadership opportunities.  While the data shows racial disparity, it did not indicate causality.  Unlike Articles 15 and courts-martial, there is no requirement for supervisors, first sergeants or commanders to consult with the base legal office on administrative disciplinary actions.  There is no tracking of whether supervisors and commanders issue LORs, letters of admonishment, and letters of counseling in a similar manner, magnitude and frequency to enlisted members, regardless of race gender or ethnicity.

AIR FORCE EVALUATION

AFPC/DP3SP recommends denying the applicant’s request to void and remove the referral EPR.  Based on a review of the applicant’s military personnel record and analysis of the facts, there does not appear to be evidence of an error or injustice with the unsatisfactory documented performance by the rating chain.  In accordance with AFI 36-2406, “Raters must ensure that information relied upon to document performance, especially derogatory information relating to the unsatisfactory behavior or misconduct, is reliable and supported by substantial evidence.”  

The applicant received a referral EPR based on comments and ratings relating to his LOR for being AWOL and removal from his First Sergeant position due the commander’s loss of confidence.  In May 13, the applicant filed an application with the ERAB; however, the request was returned without action for non-compliance.  More specifically, he requested supplemental promotion consideration and commander’s input was absent.  The applicant took no further action and on    19 Jun 13, the case was closed. 

The applicant contends the issue of AWOL was an “honest mistake;” however, a review of his military personnel record revealed a similar incident in Jun 95, resulting in nonjudicial punishment.  In addition, he now contends there was racial and/or biased action taken; however, there is no documentation or evidence to support this contention.  Based on the comments within the EPR, the applicant’s opportunity to provide rebuttal comments coupled with the additional evaluator’s “concurring” with the rater, it appears the comments were supported by reliable and substantial evidence.  Absent any Equal Opportunity and Treatment complaint or Inspector General investigation, there appears to be insufficient documentation or evidence there was any bias or discrimination in the preparation or completion of the EPR.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 7 Jun 21 for comment (Exhibit D), but has received no response.

ADDITIONAL AIR FORCE EVALUATION

AFPC/DP2SSP recommends denying the applicant’s request for promotion to E-8.  Based on a review of the documentation provided and analysis of the facts, there is no evidence of an error or injustice relating to the lack of promotion progression.  In accordance with AFI 36-2502, Enlisted Airman Promotion/Demotion Programs, individuals compete for promotion selection to E-8 and E-9 through a two-phase process consisting of weighted factors and a central evaluation board.  Retroactive promotion is not authorized in this case because the applicant was never selected for promotion to E-8.  On 24 Aug 11, he was reported AWOL which resulted in an LOR and a referral EPR, subsequently rendering him ineligible for promotion consideration during cycle 13E8.  On 12 Feb 14, the applicant signed a declination statement for promotion consideration during cycle 14E8, and he was ineligible for promotion consideration during cycle 15E8 due to his projected retirement.

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 18 Jun 21 for comment (Exhibit F), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not 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 recommendation of AFPC/DP3SP and AFPC/DP2SPP and finds a preponderance of the evidence does not substantiate the applicant’s contentions or warrant the requested relief.  The applicant contends he did not understand the personnel system and made an administrative error when he received an LOR for being AWOL and was subsequently removed from his First Sergeant position due to the commander’s loss of confidence.  The applicant also cites the Air Force IG Report on racial disparity as proof he was discriminated against.  Based on the Air Force IG Report, it is reasonable to conclude that individual acts of racism have occurred in the Air Force.  However, the applicant has not provided sufficient evidence that his disciplinary action, referral EPR, or lack of promotion progression was the result of racial disparity.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2020-03005 in Executive Session on 11 Aug 21:

Chair, AFBCMR 
, 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 7 Aug 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP3SP, dated 4 Jun 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 7 Jun 21.
Exhibit E:  Advisory Opinion, AFPC/DP2SPP, dated 4 Jun 21.
Exhibit F:  Notification of Advisory, SAF/MRBC to applicant, dated 18 Jun 21

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.