AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

FEB 2.2 3999 

IN THE MATTER OF: 

DOCKET NUMBER:  97- 00997 
COUNSEL:  None 

HEARING DESIRED:  Yes 

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APPLICANT REQUESTS THAT: 
1.  The Letter of Reprimand  ( L O R ) ,   dated 25 Jul  96,  be  removed 
from his records. 
2.  An  Unfavorable  Information  File  ( U I F )   established  as  a 
result of receiving the LOR be removed from his records. 

3.  The  Enlisted  Performance  Report  (EPR)  rendered  for  the 
period  2 Feb  96  through  1 Feb  97  be  declared  void  and  removed 
from his records. 
4.  Any  Air  Force  Office  of  Special  Investigations  (AFOSI) 
indexes listing his name be deleted. 

5.  His  command  Apologize  to  his  wife  for  the  anguish  and 
isolation she has endured. 

~ 

~~ 

APPLICANT CONTENDS THAT: 
He  followed a11 trained procedures and AFOSI written  guidelines 
when performing three apprehensions on the same day but because 
of  false  allegations  by  a  confessed  criminal  pending  a  bad 
conduct  discharge  ( B C D ) ,   he  was  sanctioned.  The  justification 
involved  a  "feeling" of  wrongdoing  by  his  command  versus  the 
comparison of the act to an objective standard.  Quite simply, he 
did  nothing  wrong  but  now  has  to prove  his  innocence.  He  has 
undertaken  this  backwards  burden  by  passing  two  polygraph 
examinations  which  directly  demonstrate  his  innocence. 
His 
command has yet to acknowledge the tests or even interview him. 
In  support  of  his  appeal,  the  applicant  provided  a  five-page 
statement,  letters  and  certificates  for  training  and  awards, 
previous  APRs/EPRs,  and  other  documentation  relating  to  his 
appeal. 
Applicant's  complete submission is attached at Exhibit A. 

AFBCMR 97-00997 

STATEMENT OF FACTS: 

The  applicant's  Total  Federal  Active  Military  Service  Date 
(TAFMSD) was 13 Aug 84. 
Applicant's  APR/EPR profile follows: 

PERIOD ENDING 

OVERALL EVALUATION 

12 Aug 85 
12 Aug 86 
12 Aug 87 
12 Aug 88 
12 Aug 89 
31 Mar 90 
31 Mar 91 
31 Mar 92 
31 Mar  93 
31 Mar 94 
31 Mar 95 
1 Feb 96 
*  1 Feb 97 
*  Contested report- 

9 
9 
9 
9 
9 
5  (New rating system) 
5 
5 
5 
5 
5 
5 
3 

On  13 May  96, while  performing  duties  as  a  Special  Agent  (SA) 
assigned  to  the  AFOSI  at  Little  Rock  AFB,  the  applicant 
apprehended  a  senior  airman  in  the  course  of  a  drug 
investigation.  The airman  later  compLained that  the  applicant 
had used excessive force in apprehending him by placing handcuffs 
on too tight. 
On 25 Jul  96, the applicant received a  LOR  for use of excessive 
force while apprehending another Air Force member.  The applicant 
provided  a  rebuttal  statement,  dated  2 Aug  96.  However,  the 
commander still elected to file the LOR  in an UIF. 
The  applicant  provided  a  copy  of  a  polygraph  examination 
administered to him  by  the Arkansas  Bureau  of  Investigation on 
18 Mar  97.  The results  of the test indicated the applicant was 
truthful on  the  polygraph  examination.  There  is  no  copy  of  a 
Federal  Bureau  of  Investigation  ( F B I )   polygraph  report  in 
applicant's  records or in his application. 

Computer printouts reflect the applicant had a date of separation 
of  9 Mar  98.  After  checking  with  officials  at  the  Air  Force 
Personnel Center,  it  appears  that  applicant was  separated  from 
the  Air  Force; however,  there  is  no  indication why  or  when  he 
separated. 

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AFBCMR 97-00997 

Commander's 

AIR FORCE  EVALUATION: 
The  NCOIC,  Quality  Force  & 
Programs  Office, 
AFPC/DPSFC3, reviewed this application and indicated that the use 
of  the  LOR  by  commanders  and  supervisors  is  an  exercise  of 
supervisory  authority  and  responsibility.  The  LOR  is  used  to 
reprove,  correct  and  instruct  subordinates  who  depart  from 
acceptable  norms  of  conduct  or  behavior,  on  or  off  duty,  and 
helps  maintain  established  Air  Force  standards  of  conduct  or 
behavior.  Commanders have the option of filing LORs  in an UIF. 
UIFs may be used by commanders to form the basis for a variety of 
adverse actions as they relate to the member's  conduct, bearing, 
behavior, integrity, and so  forth  (on or off duty), or less than 
acceptable  duty  performance. 
Commanders  may  also  remove  an 
enlisted member's  UIF prior  to  the disposition/expiration date, 
if they feel the UIF has served its purpose.  A commander refers 
the  documents  to  the  member  for  presentation  of  possible 
mitigating  facts via  AF  Form 1058  (Unfavorable Information File 
Action) before deciding whether the documents should be placed in 
the UIF.  Establishment of a UIF on a member assigned to his unit 
is  within  a  commander's  inherent  authority  to  command. 
The 
applicant's  LOR  was  filed  in  a  UIF. 
Once  the  UIF  expires, 
normally one year  after the document's  effective date  (unless new 
documentation is added  to the UIF),  the entire UIF is destroyed 
and  the  LOR  would  be  destroyed  as  part  of  the  UIF. 
New 
documentation added to the UIF would extend the disposition date 
of the UIF to reflect the date of the new document plus -one to 
two years  (based on the document) .  The LOR  would then remain in 
the  UIF  until  the  new  disposition/expiration  date. 
The 
applicant's  currrent U I F   expiration date is 25 Jul 97.  Again, the 
applicant's  commander had the option to remove the LOR/UIF at any 
time  prior  to  it's  expiration.  DPSFC3  feels  that  denial  is 
appropriate. 
The  applicant  had  an  opportunity  to  provide 
rebuttal  to  the  LOR.  Commanders  have  no  obligation  to  remove 
LORs  unless 
they feel information provided in rebuttals warrants 
removal. 
A  complete 
Exhibit C .  
The  Chief, 
InquiriedAFBCMR  Section, AFPC/DPPPWB,  reviewed  this 
application 
and  indicated  that  the  first  time  the  contested 
report will 
be considered in the promotion process is cycle 98E6 
to  technical  sergeant  (promotions effective  Aug  98 -  Jul  99). 
Should the  Board  void  the  contested report in its entirety, or 
upgrade the overall rating, providing he  is otherwise eligible, 
the  applicant  will  be  entitled  to  supplemental  promotion 
consideration  beginning  with  cycle  98E6  providing  he  is  not 
selected during the initial 98E6 cycle.  However, if the EPR  is 
voided  and  the  favorable  results  received  by  15 May  98,  no 
supplemental consideration would  be  required  as  there  would  be 
sufficient time to update the promotion file.  Initial selections 
will  be  released on  4 Jun  98  with  sklections approximately two 
weeks earlier. 

copy  of  the  Air  Force  evaluation  is  attached  at 

3 

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AFBCMR 97-00997 

A complete copy of their evaluation is attached at Exhibit D. 

The  Inquiries  &  Complaints  Branch,  AFOSI/IGQ,  reviewed  this 
application and  indicated that  a  review  of  the  Defense Central 
Index  of  Investigations  (DCII) disclosed  no  AFOSI  indexes with 
the  exception  of  the  basic  index  of  a11 AFOSI  personnel.  The 
DCII is a computerized index maintained by  Defense Investigative 
Services  and  it  identifies  records  held  by  any  Department  of 
Defense  (DOD) component . 
A complete copy of their evaluation is attached at Exhibit E. 
The Chief, BCMR Appeals &  SSB Section, AFPC/DPPPAB, reviewed this 
application  and  indicated  that  Air  Force  policy  is  that  an 
evaluation report is accurate as written when it becomes a matter 
of  record and  it takes  substantial evidence to  the  contrary  to 
have  a  report  changed  or  voided,  To  effectively  challenge an 
EPR,  it  is  important to  hear  from all  the  evaluators  from the 
report-not  only  for  support  but  for  clarification/explanation. 
The  applicant  has  not  provided  any  information  from  the 
evaluators on  the contested report.  In the absence of  evidence 
from  the  evaluators,  official  documentation  substantiating 
injustice  from the Inspector General -(IG) or  Social Actions  is 
appropriate. 
While  the  applicant  includes  results  from  a 
polygraph test supporting his claim in relation to the LOR, the 
contested EPR does not specifically state the incident mentioned 
in  the  LOR  is  tied  to  the  assigned  ratings  and  no  official 
evidence  has  been  provided  proving  the  EPR  is  invalid  in  this 
case.  The report appears to have been accomplished in accordance 
with Air Force policy in effect at the time it was rendered.  In 
the absence of error or injustice, they  recommend denial of the 
applicant's  request to void the 1 Feb 97 EPR. 
A complete copy of their evaluation is attached at Exhibit F. 

The  Senior  Attorney-Advisor,  AFPC/JA,  also  reviewed  this 
application  and  indicated  that,  as  provided  in  AFI  36-2907, 
Chapter 3, the standard for issuing an LOR is whether sufficient 
evidence  exists  for the  commander to conclude that  the  alleged 
offense occurred.  Applicant apparently believes the findings of 
truthfulness  made  as  a  result  of  his  polygraph  examinations 
somehow  fully  rebut  the  evidence  the  commander  relied  on  in 
imposing the LOR. 
In  regard  to  the  EPR  issue,  procedures  for  appealing  EPRs  are 
contained in AFI 36-2401.  The applicant did not submit an appeal 
or  information  from  any  of  the  evaluators  on  the  contested 
report.  In  fact,  neither  the  applicant nor  the  contested  EPR 
ever directly  states that the ratings and/or narrative comments 
specifically pertained to the incident involving use of excessive 
force but  for purposes  of  JA's  discussion, they assume  that  is 
the  case.  The  applicant  clearly has  the burden  of  proving  by 
cogent  and  clearly  convincing  evidence  that  his  EPR  contains 

4 

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AFBCMR 97-00997 

material errors or injustices.  The level of evidence required is 
high  because  the  applicant  "must  overcome  the  strong,  but 
rebuttable, presumption that administrators of the military, like 
other  public  officers,  discharge  their  duties  correctly, 
lawfully, and  in  good  faith."  Applicant  has  failed to present 
any  convincing  evidence  to  support  his  conclusion  that  he  is 
"factually  innocent" of  any  wrongdoing  in  the  excessive  force 
incident. 

The  decisive  factor  in  applicant's  view  is  his  "passing" a 
privately  administered  polygraph  examination.  As  an  aside,  he 
complains that AFOSI  did not offer him an opportunity to take a 
polygraph examination before he was sanctioned.  Since no statute 
or  regulation  provides  for  a  "right" to  a  polygraph  test,  the 
applicant  has  not  been  denied  any  legal  entitlement.  OpJAGAF 
1986/113  (18 Sep  86)  comments  that  results  of  polygraph  tests 
\\never have,  nor  should  they  be,  dispositive of  administrative 
actions  in  the  military." 
In  fact,  in  administrative 
proceedings, such results are only admissible if the government, 
respondent, and legal advisor agree.  While the Court of Military 
Appeals  has  held  that  polygraph  results  are  not  per  se 
inadmissible in  judicial proceedings,  that  same court held that 
such results are not p e r   se  admissible: 

[ W J e   have never held that  [the Uniform Code of Military 
Justice]  or  any  constitutional  considerations  give  an 
accused  the  right  to  compel  the  Government  to  movide 
him a polygraph or any other examination which pbrports 
to test for "truthfulness ."  [Emphasis added. ] 

* 

The  rationale  for  this  circumspect  consideration  of  the 
admissibility of polygraph  results in judicial or administrative 
proceedings  is  w e l l   founded. 
In  the  Employee  Polygraph 
Protection  Act  of  1988,  Congress  severely  limited  the  use  of 
polygraphs  in  private  sector  employment  decisions. 
In  the 
legislative history of the Act, Congress noted that the American 
Medical Association had concluded "that the polygraph can provide 
evidence of  deception or honesty in a  percentage  of people that 
is statistically only somewhat better than chance.''  Further, the 
Senate report reflects that: 

Despite the popular perception that the  (polygraph) 
machine is a " l i e  detector," most experts agree it is 
not.  In addition to the charted responses, most 
examiners base their conclusions on the conduct of the 
examinee, the natural inclinations of the examiner, and 
on statements made during the examination. 

Applicant's  reliance on his polygraph  test  results is a  classic 
example  why  consideration  of  these  tests  in  judicial  or 
administrative proceedings  is  so disfavored.  In  JA's  opinion, 
his belief that the test results are exonerating demonstrates the 
ever  present  danger  of  confusion presented  by  such  tests.  The 
lack of precision in the questions propounded by  the applicant's 

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AFBCMR 97-00997 

polygrapher  completely  undermines  the  relevance  of  this 
examination. 
In  applicant's  case,  JA  believes  the  examiner's 
questions  are  so  amorphous  that  the  responses  are,  at  best, 
meaningless. 
Thus,  however,  well  intentioned,  applicant's 
submission  of  the  polygraph  results  does  not  assist  him  in 
meeting  his burden of  establishing an error or injustice in his 
records requiring action by  the Board.  While the applicant has 
submitted significant portions of his military record, including 
certificates, EPRs,  letters of appreciation, and the like, these 
materials  have  no  bearing  on  the  specific  misconduct  which 
resulted in the administrative actions against the applicant. 
JA indicated that, it is an axiomatic principle of administrative 
law  that  federal  officials  charged  with  official  duties  are 
presumed  to  carry  out  those  responsibilities according  to  law, 
L e . ,  a presumption of regularity, in the absence of  proof  to the 
contrary.  The applicant has  offered  no proof  that the LOR  was 
imposed contrary to any law or regulation, nor has he established 
that the writers of  the EPR  acted illegally.  Consequently, the 
LOR,  attendant  UIF  entry,  and  EPR  should  remain  i n   the  record 
since the applicant has not proved any illegality. 
JA further indicated that, to obtain relief, the applicant must 
show by  a preponderance of evidence that there exists some error 
or  injustice  warranting  corrective  action  by  the  Board. 
The 
effect of this burden of proof requires the applicant to present 
sufficient evidence to convince the Board it is more likely than 
not that relief is warranted.  In JA's  opinion, he has failed to 
meet  this  burden  and  his  application  should  be  denied  in  its 
entirety,  They note that the t h r u s t   of applicant's  argument is 
directed  toward  disproving  the  allegation  of  excessive  force, 
rather than criticizing the administrative actions taken against 
him  (assuming the validity of  the accusation). 
A complete copy of  their evaluation is attached at Exhibit G. 

. 

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APPLICANT'S REVIEW  OF AIR FORCE EVALUATION: 
Copies of  the Air  Force evaluations were  forwarded to applicant 
As  of  this  date,  no 
on  7 Jul  97  for  review  and  response. 
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 timely filed. 

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AFBCMR 97-00997 

Sufficient  relevant  evidence  has  'been  presented  to 
3 .  
demonstrate  the  existence  of  probable  error  or  injustice 
warranting removal of the contested report and any AFOSI indexes 
listing  his  name.  After  reviewing  the  evidence  of  record, we 
believe  that the punishment applicant received was excessive in 
view  of  the  circumstances  surrounding  the  incident.  While  we 
normally  would  not  substitute  our  judgment  for  that  of  the 
commander, we feel that the issuance of the contested UIF appears 
to be harsh.  The punishment the applicant received, based on the 
offense and his overall excellent record of performance, appears 
T h e   evidence  presented  substantiates  to  our 
to  be  severe. 
satisfaction  that  the  applicant  has  been  the  victim  of  an 
injustice.  While  the  applicant provided  no  documentation  from 
the rating chain regarding the contested EPR,  we believe that the 
rating on the EPR  was based on receiving the LOR. 
Therefore, in 
order to offset any  possibility of an injustice, we recommend the 
contested report be declared void and removed from his records. 

4.  In  regard  to  applicant's  request  that  any  AFOSI  indexes 
listing his name be deleted, AFOSI/IGQ has advised there are no 
indexes  listing  the  applicant, with  the  exception of  the basic 
index of  all AFOSI personnel.  It appears that the DCII is the 
sole  method  by  which  AFOSI  indexes  and  retrieves  reports  of 
investigation.  The  basic  index  of  &ll  AFOSI  personnel  was  a 
personnel listing not an index of investigations.  In view of the 
foregoing,  we  find  no  basis  upon  which  to  recommend any  AFOSI 
indexes listing h i s   name be declared void  and expunged  from his 
record . 
5.  With  respect to the applicant's  request that the LOR, dated 
25 J u l   96, and the UIF established as a  result of receiving the 
LOR  be  removed  from  his  records,  we  note  that  the  UIF  is 
destroyed  within  one  year  after  the  effective  date  and  the 
expiration  date  was  25 Jul  97.  Therefore,  the  UIF  should  no 
longer  be  in  applicant's  records. 
Although  the  applicant 
requests an apology to his wife for the anguish and isolation she 
has endured, this request is not within the Board's  purview. 

~~ 

~- 

~ 

THE BOARD RECOMMENDS THAT: 
The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be corrected to show that the EPR,  AF Form 
910,  rendered  for  the  period  2 Feb  96  through  1 Feb  97  be 
declared void and removed from his records. 

The following members of the Board considered this application in 
Executive  Session  on  29 January  and  5  November  1998, under  the 
provisions of Air Force Instruction 36-2603: 

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AFBCMR 97-00997 

The follo ing d 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G . 
Exhibit H . 

Mr.  David C .   Van  Gasbeck, Panel Chair 
Mr. Gregory H.  Petkoff, Member 
Mr.  Steven A.  Shaw, Member 
M r s .   Joyce Earley, Examiner  (without vote) 
cumentary evidence was considered: 
DD Form 149, dated 24 Mar 97, w/atchs. 
Applicant's Master Personnel Records. 
Letter, AFPC/DPSFC3, dated 16 Apr 97. 
Letter, AFPC/DPPPWB, dated 21 Apr 97. 
Letter, AFOSI/IGQ, dated 28 Apr 97. 
Letter, AFPC/DPPPAB, dated 18 May 97. 
Letter, AFPC/JA, dated 23  J u n   97. 

Letter, AFBCMR, dated 7 Jul 97. - 

C.  VAN  GRSBECK 

Panel Chair 

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DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

.-. 

FEB 1 2  1999 

Office of the Assistant Secretary 
AFBCMR 97-00997 

MEMORANDUM FOR THE CHIEF OF STAFF 

Having received and considered the recommendation of the Air Force Board for Correction 
of Military Records and under the authority of Section 1552, Title 10,  United States Code (70A 
Stat 116), it is directed that: 

Form 910, rendered for the'pc 
declared void and removed from his records. 

ords of the Department of the Air Force relating t- 
 AF 
be  corrected  to  show that  the  Enlisted  Performance  Report, 
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eriod 2 February  1996 through 1 February 1997, be, and hereby is, 

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V 

Air Force Review Boards Agency