RECORD 
AIR FORCE BOARD FOR 

OF PROCEEDINGS 
CORRECTION OF MILITARY RECORDS 

IN THE MATTER OF: 

DOCKET NUMBER:  97-02718 

COUNSEL:  NONE 
HEARING DESIRED:  NO 

JUL  2  0 '998 

APPLICANT REOUESTS THAT: 

1.  The  Enlisted  Performance  Report  (EPR), rendered  for  the 
period 1 February 1992 through 31 January 1993, be declared void 
and removed from his records. 

2.  He  be  reconsidered  for 'promotion to  the  grade  of  staff 
sergeant  ( E - 5 )   with all back pay. 

APPLICANT CONTENDS THAT: 

The indorser of the contested report was not in his  (applicant's) 
rating chain, nor had knowledge of him and his duty performance. 
The  cor-rect  indorser  was  available  and  did  not  indorse  as 
directed by Air Force Instructions.  The ratings which were given 
were completely unfounded. 

In support of his appeal, applicant submits a statement from the 
rater  of  the  EPR  in  question. 
The  rater  stated  that  he 
originally rated the applicant an overall  " 5 "   rating.  However, 
he  allowed himself  to be  coerced by  the commander into changing 
the rating to a 'l4."  The indorser of the EPR  in question states 
that  the  ratings he  and  the  rater  assigned were  driven by  the 
Group Commander's policy at the time, L e . ,  an Article 15 for an 
intimate relationship with a trainee by a permanent party member 
leads to a r l l l l  or "2" rating on the EPR. 
Applicant's complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

Applicant  is currently in the Air  Force Reserve  in an inactive 
duty status. 

On 5 February 1993, while serving in the Regular Air Force in the 
grade of  senior airman, applicant's commander considered whether 
to recommend, under the Uniform Code of Military Justice  (UCMJ), 
nonjudicial punishment  for the  following misconduct:  Applicant 

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did, on or about 6 January 1993, at or near 
violate  a  lawful  general  regulation  by  kissing, making  sexual 
advances toward, and developing a personal relationship with an 
airman basic, a  trainee, at  a time when  he was  a staff member 
within  the  same training organization.  Applicant  indicated he 
had  consulted  a  lawyer, waived  his  right  to  demand  trial  by 
court-martial  and  accept  nonjudicial  punishment,  requested  a 
personal  appearance  and  attached  a  written  presentation.  On 
16 February  1993 the commander considered the matters presented 
and found that applicant did commit one or more of the offenses 
alleged.  Applicant  appealed  the  commander's decision  and  the 
appeal was denied.  Punishment consisted of 30 days correctional 
custody, reduction to the grade of  airman but, that portion  of 
the  punishment  that  exceeds  reduction  to  the  grade  of  airman 
first class, is suspended until 16 August 1993, after which time 
it will be remitted without further action unless sooner vacated. 
Applicant's  new  date  of  rank  to  airman  first  class  was 
16 February 1993. 
Applicant's EPR profile is as follows: 

PERIOD ENDING 

OVERALL EVALUATION 

31 Jan 92 
*  31 Jan 93 
31 Jan 94 
31 Jan 95 
22 Oct 95 
22 Oct 96 
30 Mar 97 

*  Contested report 

5 
2 (Referral Report) 
5 
5 
5 
5 
5 

AIR FORCE EVALUATION: 
The Chief ,  Inquiries/AFBCMR Section, Airman Promotion Branch, HQ 
AFPC/DPPPWB, states that based  on applicant's date  of  rank  for 
senior airman, the first time the contested report was considered 
in  the  promotion  process  was  cycle  9535  to  staff  sergeant. 
Should the Board void  the report or upgrade the overall rating, 
provided  he  is  otherwise  eligible,  he  will  be  entitled  to 
supplemental promotion  consideration beginning with  cycle  9535. 
However,  he  will  not  become  a  selectee  during  cycles  9535  or 
9635, but  would become a selectee for the  9735 cycle pending  a 
favorable  data  verification  and  the  recommendation  of  the 
commander.  Applicant  has  a High Year  Tenure  date  of  December 
1997. 

A copy of the Air Force evaluation is attached at Exhibit C. 

The Associate  Chief, Military  Justice Division, Air  Force Legal 
Services Agency, AFLSA/JAJM, states that the applicant does not 

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specifically seek  relief with  regard to the Article  15 action. 
However, he  does  state that  his  decision  to  accept Article  15 
proceedings was the result of unlawful command influence in that 
his commander gave him the option "to accept a court-martial or 
taking the Article 15.'' 
Nonjudicial proceedings are permitted under Article 15, UCMJ, and 
offer  commanders  the  opportunity  to  dispose  of  less  serious 
The 
offenses  without  resorting  to  trial  by  court-martial. 
decision  to  offer  the  accused  the  opportunity  to  resolve  the 
matter  in  the  Article  15  forum  rests  with  the  commander. 
Accordingly, the applicant's suggestion that being offered such a 
choice by his commander in this case amounted to unlawful command 
influence is without merit.  Such a choice is a necessary legal 
prerequisite  to  any  action  under  Article  15  UCMJ,  and  the 
commander,  therefore,  was  only  properly  fulfilling  the 
requirements of due process by presenting such an option to the 
applicant. 
Since  the  applicant,  after  consulting  with  his 
attorney, made  his own admission the choice most  advantageous" 
to  him  and  his  family, to  accept Article  15 action, he  cannot 
successfully challenge  the  process  simply because  he  disagrees 
with  the  result. 
In  conclusion, the  applicant's nonjudicial 
punishment  action  was  properly  accomplished  and  legally 
sufficient.  He was afforded all  rights granted by  statute and 
regulation. 
There  are  no  legal  errors  requiring  corrective 
action and they recommend the applicant's request be denied.  - 
A copy of the Air Force evaluation is attached at Exhibit D. 
The Chief ,  Evaluation Procedures Section, HQ AFPC/DPPPEP, states 
that  while  the  first  sergeant's and  rater's letters  state  the 
rater  worked  directly  for  the  commander  at  that  time,  the 
indorser does not make the same claim, nor did applicant obtain a 
letter  from  the  commander  stating  he,  the  commander, was  the 
rater's rater.  Further, applicant  failed  to  submit  any  other 
documentation  in  support  of  his  claim,  such  as  an  official 
document on his rater  ( L e .  an appraisal, award  recommendation, 
etc.) covering the close-out of the contested report and signed 
by  the  commander  in  a  supervisory  capacity,  or  any  type  of 
document  from  civilian  personnel  (i. e.  a  supervisory  roster) 
reflecting the rater's rater as of 31 January 1993. 
Although  the  rater  states  he  was  the  applicant's  immediate 
supervisor  from  December  1990  to  January  1995,  a  check  of 
applicant's record shows that he was not the rater reflected on 
applicant's EPR closing out  in January 1992.  Further, a review 
of the EPRs immediately preceding and following the contested EPR 
shows the applicant's rating chain appears to fluctuate as far as 
the  position  of  each  indorser  is  concerned. 
Therefore, 
AFPC/DPPPEP finds it impossible to conclude without a doubt that 
the  indorser  on  the  contested  report  is  incorrect. 
After 
receiving  the  referral  letter  (to  the  EPR  in  question)  and 
becoming aware of the overall final rating, AFPC/DPPPEP finds it 
surprising  applicant  never  discussed  the  EPR  with  his  rater, 

u 

3 

which may have identified the alleged error.  Applicant's failure 
to fulfill his own responsibilities clearly contributed to this 
situation  if,  indeed,  an  error  was  made. 
A  review  of  the 
documents provided does not support applicant's allegation of an 
erroneous  evaluator. 
They  recommend  applicant's  request  be 
denied. 
A copy of the Air Force evaluation is attached at Exhibit E. 

The Chief, BCMR and SSB Section, HQ AFPC/DPPPAB, states that HQ 
AFPC/DPPPEP  provided  a  technical  advisory  and  HQ  AFPC/DPPPAB 
agrees with their assessment and have no additional comments. 
A copy of the Air Force evaluation is attached at Exhibit F. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

A  summary  of  the  copy  of  the  applicant's  response,  dated 
21 October 1997, with attachment, follows.  When he addressed the 
Article  15,  it  was  merely  to  show  that  the  individual  who 
indorsed his EPR had not even read or seen the Office of Special 
Investigation  (OSI) report  and  therefore  rendered  it  virtually 
impossible for him to justify the rating which he had given.  At 
the time of this contested report, his rater's rater had recently 
been assigned and had not yet assumed those duties.  Therefore, 
his  rater's rater  would  still  have  been  the  commander.  The 
indorser has attested to the fact that he never reviewed the OS1 
report which was the basis for the rating which he gave. 

A copy of the applicant's response is attached at Exhibit H. 

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 probable error or injustice.  After 
a  thorough  review  of  the  evidence  of  record  and  applicant's 
submission, we are not persuaded that the EPR, closing 31 January 
1993, should be declared void or, that he should be reconsidered 
for promotion to the grade of  staff sergeant with all back pay. 
His  contentions are duly  noted; however, we  do not  find  these 
assertions,  in  and  by  themselves,  sufficiently  persuasive  to 
override the rationale provided by  the Air Force.  We therefore 
agree with  the  recommendations of  the Air  Force and  adopt  the 
rationale  expressed  as  the  basis  for  our  decision  that  the 

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applicant has failed to sustain his burden that he has suffered 
either  an  error  or  an  injustice. 
Therefore,  we  find  no 
compelling basis to recommend granting the relief sought. 

THE BOARD DETERMINES THAT: 

The  applicant  be  notified  that  the  evidence presented  did  not 
demonstrate  the  existence  of  probable  material  error  or 
injustice;  that  the  application was  denied  without  a  personal 
appearance; and  that  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 this application in 
Executive Session on 2  June 1 9 9 8 ,   under the provisions of AFI 3 6 -  
2 6 0 3 .  

Mr. LeRoy T. Baseman, Panel Chair 
Mr. Joseph G .   Diamond, Member 
Ms. Peggy E. Gordon, Member 

The following documentary evidence was considered: 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G.  Letter, AFBCMR, dated 20 Oct 9 7 .  
Exhibit H.  Applicant's Letter, 

DD Form 149, dated 11 Sep 9 7 ,   w/atchs. 
Applicant's Master Personnel Records. 
Letter, HQ AFPC/DPPPWB, dated 18 Sep 9 7 .  
Letter, AFLSA/JAJM, dated 1 9   Sep 9 7 .  
Letter, HQ AFPC/DPPPEP, dated 2 6   Sep 9 7 .  
Letter, HQ AFPC/DPPPAB, dated 2 9   Sep 9 7 .  

LEROY T. BASEMAN 
Panel Chair