RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02127

XXXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.   Remove his Enlisted Performance Report (EPR), dated 2 Sep 14, and associated documents from his official military records.

2.  Remove the Security Forces Investigation, dated 18 Apr 14, and associated documents from his official military records.  

APPLICANT’S CONTENTIONS

None of the allegations leading to the aforementioned referral report were ever substantiated.  He was not fully aware of the allegation (inappropriate comments during an interview) until he recently reviewed a copy of his records.  The “inappropriate comments” were jokes, and he was never informed what was considered inappropriate.    

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force staff sergeant (E-5).

On 16 Dec 03, the applicant entered the Regular Air Force.

On 18 Apr 14, according to a Security Forces Report of Investigation, an individual reported the applicant conducted an indecent act, during his job interview.  The Security Forces Investigations Section closed the case in their office, released the applicant to his First Sergeant and forwarded the matter to the appropriate office for dissemination.  

On 2 Sep 14, the applicant’s Rater advised him that he was referring the applicant’s EPR for the period 2 Sep 13 thru 1 Sep 14.  Specifically, the rating in Section III, Item 2 of “Does Not Meet,” with comments “Failure to pay rent on-time, to attend mandatory mtg & inappropriate hiring practice at unapproved off-duty job” and “SSgt U’s lack of ethics & unprofessional conduct resulted in a LOR & loss of trust in leadership abilities” caused the evaluation to be referred. 

On 5 Sep 14, the applicant submitted a response to the referral EPR.  He provided his perspective on each issue cited in the referral EPR, opining that he had never received an EPR rating less than 5, and had never been in any trouble like this in the Air Force.  He felt he was under scrutiny by his leadership instead of being supported, which led him to attempting suicide on 21 Apr 14.  

On 8 Sep 14, the Additional Rater, after carefully considering the applicant’s response to the 2 Sep 14 referral document, concurred with the Rater’s evaluation by signing Section VI. Additional Rater’s Comments, of the referral EPR.

On 27 Sep 15, the applicant was relieved from active duty, and permanently disability retired in the grade of E-5, per AFI 36-3212, Physical Evaluation For Retention, Retirement And Separation,
with compensable percentage for physical disability of 50 percent.  

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 denying the applicant’s request to remove his referral EPR from his official military record.  The applicant received a referral EPR for the period 2 Sep 13 thru 1 Sep 14 for “failure to pay rent on-time, to attend mandatory meeting & inappropriate hiring practice at an unapproved off-duty job.”  While the applicant contends the comments from the referring evaluator (rater) are inaccurate and relied on unsubstantiated information, the rating chain at the time of the matter in question, afforded the applicant due process in giving him an opportunity to respond and/or rebut the negative ratings or comments before the EPR became a matter of record.  Additionally, the applicant has not provided credible evidence that the rating chain used faulty information when commenting on his performance during the referral EPR rating period.  

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 10 Feb 22 for comment (Exhibit D), 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 finds a preponderance of the evidence does not substantiate the applicant’s contentions.  While the AFPC/DP3SP advisory specifically addresses removal of the referral EPR, dated 2 Sep 14, from the applicant’s official military record; the Board notes the applicant has not provided any credible evidence warranting removal of Security Forces Investigation, dated 18 Apr 14, and associated documents from his official military records.  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.

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 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-2021-02127 in Executive Session on 15 Mar 22:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, dated 23 May 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP3SP, signed 7 Feb 22.
Exhibit D:	Notification of Advisory Opinion, SAF/MRBC to Applicant, dated 10 Feb 22.

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.