RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01308 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Enlisted Performance Report (EPR) rendered for the period 19 Nov 96 through 9 Sep 97 be removed from his records. APPLICANT CONTENDS THAT: The report in question should be removed based on his 31 May 97 acquittal for driving under the influence (DUI). In 1998 he applied to have the contested report removed from his records but was unsuccessful. The applicant’s complete submission, with attachment, is at Exhibit A. STATEMENT OF FACTS: On 1 Nov 83, the applicant commenced his enlistment in the Regular Air Force. The applicant’s EPR profile as a TSgt is listed below: Period Ending Overall Evaluation 15 Jan 96 5 18 Nov 96 5 * 9 Sep 97 4 9 Sep 98 5 9 Sep 99 5 *Contested Report According to documentation provided by the applicant on 8 Aug 97, he received a Judgment of Dismissal from the 26th Judicial District Court of Bossier Parish, Louisiana for his 31 May 97 DUI. On 1 Nov 11, the applicant was honorably retired and was credited with 28 years of active service. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: AFPC/DPSID recommends denial indicating there is no evidence of an error or an injustice. The applicant’s request was not submitted in a timely matter. The applicant did not file an appeal through the Evaluation Report Appeals Board (ERAB). The report in question has been a matter of record for over 17 years. The test to be applied is not merely whether the applicant discovered the error within three years, but whether through due diligence, he could or should have discovered the error. The applicant waited 17 years to file this appeal and offered no justification for the extensive delay. As a result of this very long delay, the Air Force no longer has documents on file (i.e. Base Personnel Information File, Unfavorable Information File, control roster, letter of reprimand, etc.), memories have either faded or are not available, and these factors seriously complicate any ability to determine the merits of the applicant's request. In short, the Air Force asserts that the applicant's unreasonable delay regarding a matter dating back 17 years has greatly complicated its ability to determine the factual merits of the applicant's position. According to 36-2406, Officer and Enlisted Evaluation System, paragraph A2.4., Time Limit Waivers, The applicant can request 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 should 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 how serious an impact an evaluation could have on your career in later years; not reviewing your records during the intervening years. The applicant has not provided a convincing circumstance that would have prevented him from submitting the application in a timely manner and although the AFBCMR is not governed by AFI-36-2406, we would recommend the denial based on timeliness alone and urge the AFBCMR to come to the same conclusion. The applicant contends that the contested EPR is unjust based on the dismissal of a 31 May 1997 DUI charge and therefore the EPR should be removed. Upon reviewing the contested EPR, there is no mention of a DUI by his evaluators, but rather mention an "incident resulting in revocation of base driving privileges, member worked hard to correct the behavior and remain an asset to the organization." Although the applicant provided court documents, this document states "the defendant pled guilty to this misdemeanor… which validates the comment on the evaluation. It appears the applicant pled guilty to the DUI offense and was placed on a probationary period. The applicant successfully completed the probationary period and the court "set aside" the conviction; however, this does not mean the "revocation of base privileges" did not occur during the reporting period and therefore affected the applicant's duty performance. The applicant has not provided any substantial evidence which indicates the evaluators of the contested reports wrote an unfair or impartial EPR and only presented his personal view of events. Furthermore, a final review of the contested evaluation was accomplished by the endorser and a subsequent agreement by the commander served as a final "check and balance" in order to ensure that the report was given a fair consideration in accordance with the established intent of the current Officer and Enlisted Evaluation System in place. Based upon the evidence provided, DPSID concludes that the contested EPR is accurate and was completed in accordance with all applicable Air Force policies and procedures. Lastly, the applicant has not provided sufficient documentation or evidence to substantiate his assertions that the contested report was rendered unfairly or unjustly, and has merely offered his view of events in the light that is most beneficial to him. Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record. Additionally, it is considered to represent the rating chain's best judgment at the time it is rendered. To effectively challenge an evaluation, it is necessary to hear from all the members of the rating chain-not only for support, but also for clarification/explanation. The applicant has failed to provide any information from all the rating officials on the contested report. It is determined that the report was accomplished in direct accordance with all applicable Air Force policies and procedures. 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. The applicant has not substantiated that the contested report was not rendered accurately and in good faith by all evaluators based on knowledge available at the time. A complete copy of the AFPC/DPSID evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 15 May 15, for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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-2014-01308 in Executive Session on 16 Jun 15, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-01308 was considered: Exhibit A. DD Form 149, dated 27 Mar 14, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSID, dated 16 Mar 15. Exhibit D. Letter, SAF/MRBR, dated 13 May 15.