RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00388

XXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1. His promotion to senior master sergeant (SMSgt)/E-8 be restored and that he receive back pay and allowances.

2. The Enlisted Performance Report (EPR) rendered for the period 1 October 2019 thru 30 September 2020 be reaccomplished to reflect his rank of SMSgt and remove the negative rating.

3.  By amendment, the LOR issued 10 February 2020, be removed from his records.

APPLICANT’S CONTENTIONS

He successfully served for more than 21 years in the Air Force and has never received disciplinary paperwork.  The Letter of Reprimand (LOR) he received on 10 February 2020, for acts of harassment and sexual harassment, was the first negative paperwork he received in his career.  His promotion to SMSgt was redlined as a direct result of the unjust LOR, which, since being issued, has been removed from his Personnel Information File and discarded.  It was never his squadron commander’s intent to see his career suffer as a result of these allegations.  He has made insensitive comments under the guise of what he considered an obvious joke. He never harassed or sexually harassed anyone.  Throughout his 21 years of service, he has always outpaced his peers in duty performance, and he has received recognition consistently for his good deeds.   He has had the pleasure of working for some great supervisors who trust his leadership abilities and later thanked him for making their job easier and ultimately being promoted. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

The applicant’s promotion cycle is as follows:

Grade:	Rank:	Effective:	
E-5	SSgt	01 Nov 2004	
E-6	TSgt	01 Feb 2011	
E-7	MSgt	01 Nov 2015	

The applicant provided the following information: 

	On 10 Feb 20, the applicant was issued a Letter of Reprimand due to an investigation disclosing that between 1 July 2019 and 2 December 2019, he committed acts of harassment and sexual harassment to wit, he made deliberate or repeated unwelcomed comment(s) some of which were sexual in nature, creating an offensive work environment.    

	According to AF Form 1058, Unfavorable Information File Action, dated 13 May 20, the commander removed the LOR, dated 10 February 2020, from the applicant’s UIF.  
 
 	According to the 3rd AF/CC Memorandum, dated 7 July 2020, the applicant was non-recommended for promotion to SMSgt.  His inappropriate verbal interactions with an airman did not adhere to standards established for a SMSgt and showed a lack of ability to perform in the next higher grade.  

According to AF Form 911, Enlisted Performance Report (MSgt thru SMSgt), rendered for the period 1 October 2019 thru 30 September 2020, Section III. Performance in Leadership/Primary Duties/Followership/Training reflects, “Met some but not all expectations.”  Also, in Section V. Overall Performance Assessment, reflects, “Met some but not all expectations.”

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

AIR FORCE EVALUATION

AFPC/DP2SPP recommends granting his promotion to senior master sergeant be reinstated.    Based on the documentation provided by the applicant and analysis of the facts, there is evidence of an error or injustice for promotion withheld.  The commander’s letter, dated 20 March 2020, states he found the Command Directed Report of Investigation, “INCOMPLETE” and further stated he did not fully support all aspects of the investigation.  The applicant’s promotion information for cycle 2020E8 reflects a line number of 336, a DOR and effective date of 1 July 2020 and rank/grade SMSgt.

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 19 April 2021 for comment (Exhibit D).  The applicant’s former squadron commander provided a statement, with attachments, dated 7 May 2021, indicating he requests the applicant’s promotion be reinstated.  

The former squadron commander’s complete response is at Exhibit E.

AIR FORCE EVALUATION

AFPC/DP2S concurs with the recommendation from AFPC/DP2SPP to grant the applicant’s request that his promotion to SMSgt be reinstated. 
 
The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 22 June 2021 for comment (Exhibit G).  The applicant provided a letter from counsel, indicating the LOR should be withdrawn because the LOR is based on an incomplete and insufficient investigation.  The LOR incorrectly accuses the applicant from violating Article 92, UCMJ.  A commander’s investigation concluded that the applicant made inappropriate comments to multiple members of the unit.  The IO stated that the substantiated finding was based on the accuracy of the witness’s timeline of events.  The LOR must be supported by a greater weight of credible evidence.  The allegations against him have not been proven by a preponderance of the evidence.  In the interest of fairness and justice, the letter of reprimand must be withdrawn.

The complete response is at Exhibit H.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant did not exhaust all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SPP and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  In this respect, the Board finds that based on the fact the applicant’s commander found the Command Directed Report of Investigation, “INCOMPLETE” and did not fully support all aspects of the investigation and subsequently removed the LOR dated 10 February 2020 from his UIF, the Board finds sufficient evidence to restore the applicant’s promotion to SMSgt with a date of rank (DOR) and effective date of 1 July 2020.  While the Board notes the commander removed the LOR from the applicant’s UIF, in order to ensure the LOR is completely removed from his record, the Board recommends further correction to the applicant’s record as indicated below.  However, for the remainder of the applicant’s request, to have his EPR for the period 1 October 2019 thru 30 September 2020 be reaccomplished to reflect his rank of SMSgt and remove the negative rating, the applicant has not provided evidence he exhausted the available administrative relief by submitting his request to the ERAB prior to submitting his application to the BCMR.  In view of this, his request for correction of his EPR is not ripe for adjudication by the Board at this time.  As such, the Board will reconsider the application only upon receipt of documentary evidence that such relief has been exhausted.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

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 pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

	a.  He was promoted to the grade of senior master sergeant (E-8) effective and with a date of rank of 1 July 2020.

	b.  His letter of reprimand (LOR) dated 10 February 2020, be void and removed from his record.

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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-2021-00388 in Executive Session on 28 September 2021:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 24 January 2021.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SPP, dated 17 March 2021.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 19 April 2021.
Exhibit E: Additional evidence from Squadron Commander, w/atchs, dated 7 May 2021.
Exhibit F: Advisory opinion, AFPC/DP2SPP, dated 16 June 2021.
Exhibit G: Notification of advisory, SAF/MRBC to applicant, dated 22 June 2021.
Exhibit H: Applicant’s Response, w/atchs, dated 16 July 2021.

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.