RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02314

XXXX X XXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His referral Officer Performance Report (OPR), for period 10 Jan 10 thru 9 Jan 11, be declared void and removed from his military record.

APPLICANT’S CONTENTIONS

His senior rater advised him during a counseling session that the OPR was likely unjust.  After his senior rater consulted with the Staff Judge Advocate (SJA), he signed a memorandum that supports the OPR removal with the basis that the report is unjust.  His request has been denied by the Evaluation Reports Appeal Board (ERAB) for the following reason: "The request was not submitted within the time limit established by AFI 36-2406 and there is no 'unusual circumstances' presented which would have prevent filing an appeal in a timely manner."  He did not request removal of the OPR within 3 years, because while he believed there was an injustice, he was young, simply followed the referral OPR process, and did not want to further highlight himself.  He believes no apparent consideration was given to the merit of his claim and requests it be considered by the AFBCMR regardless of the time limit imposed by AFI.

In support of his application, the applicant provided: a memorandum signed by his senior rater, referral OPR with his response memorandum, and an Application for Correction/Removal of Evaluation Report.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a currently serving Air Force major (O-4).

On 15 Feb 11, according to the OPR for rating period 10 Jan 10 through 9 Jan 11, the evaluation was referred due to block III, Performance Factors, marked “Does Not Meet Standards”, and  block IV, Rater Overall Assessment, with comment “received LOR for lapse of judgement while TDY”.

According to AFPC/DP3SP, the Evaluation Report Appeals Board (ERAB) denied the applicant’s request to remove his OPR, as the request was not submitted within the three year time limit established by AFI 36-2406, Officer and Enlisted Evaluation Systems, and no justification was presented on why the time limit should be waive.

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

AIR FORCE EVALUATIONS

AFPC/DP2SSM recommends denying the application.  Although the applicant received a referral OPR there is not a LOR in his record.  Moreover, the OPR does not specify the applicant’s substandard performance.  AFI 36-2907, Adverse Administrative Actions, table 2.1, Rule 5, a Letter of Reprimand (LOR) will be filled in the Unfavorable Information File (UIF) for 2 years and in Rule 6 a Letter of Counseling (LOC) will be filled in the UIF for 1 year.  Although there is a restriction on how long documents will be filed in the UIF, there is no restriction on the Personal Information File (PIF).  It appears, if there was administrative action taken on the applicant, documentation was not filed properly to maintain a matter for record.

The complete advisory opinion is at Exhibit C.

AFPC/DP3SP recommends denying the application.  While the applicant contends the comments from the referring evaluator are vague, the rating chain at the time afforded the applicant due process by giving him an opportunity to respond and/or rebut the negative ratings or comments before the OPR became a matter of record.  In addition, AFI 36-2406 establishes “time limit waivers”.  Accordingly, the applicant could have requested a waiver of the 3-year time limit by citing unusual circumstances that prevented filing the appeal in a timely manner.  However, ratees are responsible for reviewing their records at least annually for accuracy and the board (ERAB) can consider the due diligence of the applicant to apply for correction.  Applications that do not include a waiver will be returned without action.  Grounds for a waiver do not include:

- Failing to understand the appeals process.
- Being discouraged from appealing by superiors, peers, or counselors.
- Failing to understand the career impact in later years.

Therefore, based on the analysis of the facts and documentation provided, the applicant provided insufficient evidence to substantiate there was an error or injustice as the OPR was accomplished according to regulatory/instruction guidance and the applicant filed an appeal with the Evaluation Appeals board 10 years after the subject OPR was a matter of record.

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 Feb 22 for comment        (Exhibit E), but has received no response.

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 recommendation of AFPC/DP2SSM and AFPC/DP3SP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Furthermore, while the applicant contends the comment from the referring evaluator are vague, the rating chain at the time afforded him due process and provided an opportunity to respond and/or rebut the negative ratings or comments before the OPR became a matter of record.  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-2021-02314 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, w/atchs, dated 7 Jul 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSM, dated 25 Oct 21.
Exhibit D:	Advisory Opinion, AFPC/DP3SP, dated 3 Feb 22.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 3 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.