RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00034

XXXX X. XXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His Officer Performance Report (OPR) from 16 Dec 18 through 15 Dec 19 be removed from his record.

APPLICANT’S CONTENTIONS

He requests the removal of the OPR from his record due to its false statement in section IV line 6, and the letters provided from the two alleged victims.  A third party reported an incident of alleged sexual assault, which then drove a mandatory Office of Special Investigations (OSI) investigation and notification to the Numbered Air Force Commander (NAF/CC).  The two individuals who were allegedly offended did not report the incident nor wished to have it reported.  The wing commander decided to issue a Letter of Reprimand (LOR).  The LOR drove a mandatory referral OPR, which his group commander non-concurred with.  Both of the alleged victims wrote letters on his behalf in response to the LOR.  The LOR falsely indicates the OSI report stated that he inappropriately touched a female.  The report does not validate this offense, and the false statement from the LOR was summarized and placed in his OPR.  He is appealing this OPR outside of his chain of command in hopes the Board will look at the entire situation objectively.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

According to the documentation provided by the applicant and analysis of the facts the following information is provided:  

The applicant is an active duty Air Force major (O-4).

On 17 Sep 19, he received an LOR from the wing commander for unlawfully touching XXXX twice, without her permission and unlawfully grabbing XXXX, without his permission.

On 8 Nov 19, the applicant was notified his request for redress, under Article 138, Uniform Code of Military Justice, was denied.

On 18 Dec 19, the applicant received a referral OPR.  The rater noted the “member touched two individuals multiple times without consent,” and noted he “Does Not Meet Standards” of his performance factors.  The additional rater “non-concurred” noting “I have carefully considered the comments to the 23 Dec 19 referral doc; I non-concur w/Section IV/line 6 and Prof Qual rating, Section IX.  Victims stated they wouldn’t rpt/wanted to handle matter w/conversations; mbr meets stds.”  On 5 Feb 20, the reviewer “non-concurred” with the additional rater and noted “I non-concur with the additional rater & the report remains a referral.  The applicant committed the conduct in Section IV/line 6 and he does not meet standards for Section IX/line 3, therefore he does not meet standards in Section III.”  

On 16 Sep 20, the Evaluation Reports Appeal Board application was returned without action noting the board works under the assumption that evaluation reports are accurate and objective and therefore, applicants must provide strong evidence to overcome the evaluation reports presumed validity. 

APPLICABLE AUTHORITY

AFI 36-2907, Adverse Administrative Actions. Adverse administrative actions are intended to improve, correct and instruct subordinates who violate established Air Force standards whether on or off duty.  Raters should consider making comments on performance reports when the ratee receives an LOR.  Commanders and other members of the operational chain of command can issue administrative action.  The standard of proof for adverse administrative actions is the “preponderance of the evidence.”  A preponderance of the evidence exists when it is more likely than not events have occurred as alleged.  Preponderance of the evidence is not determined by the number of witnesses or exhibits, but by all the evidence and evaluating factors such as witness behavior, opportunity for knowledge, information possessed, ability to recall, as well as related events and relationship to the matter being considered.  There is no requirement to prove any allegation beyond a reasonable doubt.  For officers, LORs must be filed in the Unfavorable Information File.

AFI 36-2406, Officer and Enlisted Evaluation Systems. Referral procedures are established to allow airmen due process by giving them an opportunity to respond and/or rebut any negative ratings or comments before it becomes a matter of record.  Evaluations must be referred when comments, regardless of the ratings, are derogatory in nature, imply or refer to behavior incompatible with or not meeting Air Force standards, and/or refer to disciplinary actions.  When considering the airman’s ability to meet standards, consider unacceptable performance as actions that are incompatible with, and/or airmen who have routinely (a repeated inability to meet standards that would render the aggregated performance assessment over the entire reporting period as below Air Force standards and expectations) and/or significantly (a single instance where failure to meet standards is either egregious in nature or so far short of a standard that it impacts overall aggregated performance assessment) failed to adhere to established Air Force standards and expectations.  Evaluations that have become a matter of record are presumed to be accurate and objective, any appeals must provide evidence that clearly demonstrates an error or injustice was made.  

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 took notice of the applicant’s complete submission in judging the merits of the case, and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  In accordance with AFI 36-2907, commanders and other members of the operational chain of command can issue administrative actions in an effort to improve, correct, and instruct subordinates who depart from standards of performance, or whose actions degrade the individual and unit’s mission.   It further states, that “commanders should utilize the ‘preponderance of the evidence’ standard when evaluating the evidence. There is no requirement to prove any allegation beyond a reasonable doubt.”  In this regard, the Board finds the applicant has provided insufficient evidence to prove that the reasons for the LOR are unsubstantiated.  In addition, the AFI states that “raters must consider making comments on performance reports when the ratee receives any of these adverse actions” (i.e. Counseling, Admonitions and Reprimands).  Therefore, since the referral evaluation was a result of the LOR, and the evidence does not support removal of the LOR, then the reason for the evaluation still stands.  While the Board recognizes, that the applicant’s group commander non-concurred with the referral OPR, the wing commander also non-concurred with the group commander, retained the report as a referral and stated that the applicant committed the offenses and did not meet standards.  Finally, the Board finds that the actions taken by the applicant’s commander and wing commander were within their authority and finds no evidence that would justify overturning their decision to issue the LOR and subsequent referral evaluation.  Therefore, the Board recommends against correcting the applicant’s records.

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-2021-00034 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 5 Nov 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: AFOSI Report of Investigation, dated 9 May 19 – WITHDRAWN.

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.