RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01468 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: His enlisted performance report (EPR) rendered for the period 26 Mar 2007 through 25 Mar 2008 be upgraded to the rating of a “5” or be voided and he be awarded two decorations, one in conjunction with his permanent change of assignment (PCA) and the other in conjunction with his permanent change of station (PCS). ________________________________________________________________ THE APPLICANT CONTENDS THAT: His EPR should be upgraded or voided because being accused of a crime and being guilty of a crime are completely different. He states, if he was charged with a crime and was offered an Article 15 or court-martial, he would have had an opportunity to prove his innocence. However, due to the fact that he received a Letter of Reprimand (LOR) he was not afforded that opportunity. His medals were denied due to the rating on the contested report. In support of his appeal, the applicant provides a personal statement; a copy of counsel’s brief submitted to the Evaluation Reports Appeals Board (ERAB), with attachments; a copy of the LOR, dated 29 Aug 06; associated email correspondence, along with additional documentation. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant, while serving as a staff sergeant (E-5/SSgt), received a LOR, based on information disclosed in an Air Force Office of Special Investigation (AFOSI) report, that on or about 29 Jan 06, the applicant was involved in a domestic disturbance with his spouse at their residence. During the disturbance, the applicant allegedly pointed a gun at his spouse and threatened her. The applicant’s military spouse also indicated that the physical abuse dated back to Nov 2004, which included punching, slapping, and choking her with a bag. The applicant’s EPR profile follows: PERIOD ENDING OVERALL RATING 25 Mar 02 5 25 Mar 03 5 25 Mar 04 5 25 Mar 05 5 25 Mar 06 5 #25 Mar 07 3 31 Dec 07 5 31 Dec 08 5 10 Jul 09 5 # Contested Report ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSID recommends denial. The applicant filed an appeal through the ERAB; however, the ERAB was not convinced the contested report was inaccurate or unjust and denied relief. The applicant was under investigation for an alleged domestic disturbance incident at his home of residence. The local police took no action because of conflicting stories. They also indicated that there was no evidence at the time of the incident of a family violence occurrence. The AFOSI conducted another investigation, by having the applicant’s spouse wear a wire and tape a conversation to prove her accusations of abuse and the applicant pulling a gun on her. The discussion between the applicant and his spouse failed to provide the evidence the OSI investigator was looking for. The applicant denied pulling a gun on his spouse. The applicant’s spouse later withdrew her request for the investigation; however, the interviews with the spouse’s family, friends and co-workers corroborated her accounts of what had occurred. After the investigation, the commander issued the applicant an LOR for his actions taken against his spouse. In the applicant’s 25 Mar 07 EPR, he received a rating of “3.” Based on the emails, the applicant’s rating chain wanted to make the report a referral based on the actions by the applicant that eventually led to the issuance of the LOR. However, it appears through discussion among the rating chain it was decided to make the EPR a non-referral report to allow the applicant an opportunity to test for technical sergeant (E-6/TSgt). An evaluation report is considered to represent that rating chain’s best judgment at the time it is rendered. Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record. The burden of proof is on the applicant and he has not substantiated the contested report was not rendered in good faith by all evaluators based on knowledge available at the time. The complete AFPC/DPSID evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: In his response, the applicant notes that AFPC stated that either the local police or the OSI had any evidence of family violence. The interview of the alleged offense was based on the interviews of his spouse, her family, friends, and co-workers, who were not in the house, the day of the alleged incident and are in no position to corroborate any accounts of what happened, rendering their information as only hearsay. Since AFPC agrees there is no evidence to support a LOR and the Unfavorable Information File (UIF) he received, how can it be justified? He believes a LOR should be supported by evidence and written based on factual information, therefore his request for relief should be granted. The applicant’s complete response, with attachment, is at Exhibit F. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant's complete submission and the evidence of record in judging the merits of the case. The applicant asserts that it is his belief that he was not found guilty of a crime and would have been able to prove his innocence, had his commander preferred non-judicial punishment. However, in our view, the Air Force office of primary responsibility (OPR) has adequately addressed the issues presented by the applicant and we are in agreement with its opinion and recommendation. We found no evidence the applicant was not afforded due process or that the commander abused his discretionary authority. Therefore, based on preponderance of evidence, we found no evidence that the applicant has been the victim of an error or injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-01468 in Executive Session on 2 December 2010, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 30 Apr 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. AFOSI Report, dated 6 Jul 06 (withdrawn). Exhibit D. Letter, AFPC/DPSID, dated 19 Jul 10. Exhibit E. Letter, SAF/MRBR, dated 17 Sep 10. Exhibit F. Letter, Applicant, undated, w/atch. Panel Chair