AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

JUL  2  11596 

IN THE MATTER OF: 

DOCKET NUMBER:  97-03137 

COUNSEL:  NONE 

HEARING DESIRED:  NO 

APPLICANT REOUESTS THAT: 
1.  The  Enlisted  Performance  Reports  (EPRs) rendered  for  the 
periods  14  October  1987  through  8  March  1988  and  9  March  1988 
through 20 April 1989 be declared void. 
2.  The punishment  imposed upon  him  under  Article  15, Uniform 
Code  of  Military  Justice  (UCMJ), dated  23  August  1989,  be  set 
aside and removed from his record. 

3.  His former grade of sergeant (E-4) be reinstated. 
4 .   His discharge be upgraded to honorable. 

APPLICANT CONTENDS THAT: 

1.  Two different supervisors were out to ruin his reputation and 
get  rid of  him.  He  alleges he  turned in one of  his  indorsers 
from  the  1988  EPR  who  purportedly had  a drug problem.  He  was 
subsequently moved to another work area.  He identified a problem 
within the work  area and allegedly confronted supervisors about 
falsifying  SAC  forms. 
As  a  result,  he  was  rendered  two 
devastating EPRs, which he believes were written in retaliation 
against him. 

2.  The incident whereby he failed to establish procedures on or 
about 27 May 1987 and drained hydraulic fluid while pressure was 
still  on  the  fluid, happened  more  than  one  year prior  to  the 
discharge package being initiated, and therefore, should not have 
been  included  in  the  discharge  package.  He  also  states  that 
there was no basis for the adverse actions taken. 

In support of the appeal, applicant submits a personal statement 
and several other documents. 

Applicant's complete submission is attached at Exhibit A. 

97-03 137 

STATEMENT OF FACTS : 
On  24  July 1989,  the  applicant was notified of  his  commander's 
intent to impose nonjudicial punishment upon him for: (1) failing 
to go to his appointed place of duty, the LOX service plant, and 
(2) for being  derelict  in  the performance  of  his  duties  on  15 
July 1989, by failing to service the LOX carts. 
On 8 August 1989, after consulting with counsel, applicant waived 
his  right  to  a  trial  by  court-martial,  requested  a  personal 
!  appearance and submitted a written presentation. 
On  9  August  1989,  the  commander  determined  the  applicant  had 
committed  one  or  more  of  the  offenses  cited  and  imposed  the 
following punishment:  reduction  to  the  grade  of  airman  first 
class. 

Applicant did appeal the punishment; and on 21 August  1989, the 
appeal was denied.  The Article  15 was filed in his Unfavorable 
Information File  (UIF) . 
On  25  August  1989,  the applicant was notified by  his  commander 
that involuntary discharge action had been initiated against him 
for misconduct, minor  disciplinary  infractions.  The  applicant 
was also advised that he had a right to consult legal counsel and 
to  submit written  statements  in  his  own behalf.  He  offered  a 
waiver  of  his  rights  to  an  administrative  discharge  board 
conditioned upon his receipt of no less than a general discharge. 
On 7 November 1989, the discharge authority reviewed the case and 
approved the discharge for misconduct, directing the applicant be 
issued a general discharge without probation and rehabilitation. 

The applicant, while serving in the grade of airman first class, 
was discharged from the Air Force on 14 November 1989 under the 
provisions of AFR 39-10  (Misconduct-Pattern of Minor Disciplinary 
Infractions)  with  a  general  (under  honorable  conditions) 
discharge.  He served 4 years 7 months and 26  days total active 
service. 

m 

The  applicant  previously  submitted  an  application  to  the  Air 
Force  Board  for  Correction  of  Military  Records  (AFBCMR) 
requesting his Airman Performance Report  (APR) ,  closing 8 March 
1988, be removed from his records.  His application was denied by 
the Board on 26 November 1991.  On 29 January 1992, applicant was 
advised of the Board's  decision.  A complete copy of the Record 
of Proceeding is attached at Exhibit C. 

APR/EPR profile since 1984 reflects the following: 

PERIOD EN DING 

EVALUATION OF POTENTIAL 

3 Apr 84 
3 Apr 85 
16 Feb 86 

8 
9 
9 

2 

97-03137 

13 Oct 8 6  
13 Oct 8 7  
* 8   Mar 8 8  
*20 Apr 8 9  

*Contested reports. 

AIR FORC E EVALUATION: 

The  Associate  Chief,  Military  Justice  Division,  AFLSA/JAJM, 
reviewed this application and states that although the applicant 
endeavored in good  faith to rectify the problem  created by  his 
having  fallen  asleep,  he  was  nonetheless  responsible  for 
returning  to  his  duty  station at  1500 hours  to  attend  to  the 
remaining carts.  As a result of his failure to do so, the KC-135 
Production Supervisor wound up being behind schedule by 2 %  hours 
on  1 6   June  1 9 8 9 .  
They  state  that,  based  on  the  information 
available,  the  applicant's  nonjudicial  punishment  action  was 
properly  accomplished.  Based  on  the  evidence  provided,  they 
recommend denial of applicant's request. 

A complete copy of the evaluation is attached at Exhibit C. 

The  Chief, Inquiries/AFBCMR Section, AFPC/DPPPWB, reviewed this 
application and  states  that  the  applicant  was  administered  an 
Article 15 on 9  Aug  8 9 .   His punishment consisted of a reduction 
from the grade  of  sergeant  to airman  first class  (AlC) with  a 
date of  rank and effective date of  9  Aug  8 9 .  
They also state 
that removal of the two APRs would have no impact on any previous 
promotion  consideration as  the  applicant was  discharged  14 Nov 
8 9 .   Therefore, they defer to the recommendation of AFLSA/JAJM. 
A complete copy of their evaluation is attached at Exhibit D. 

The  Chief,  BCMR  and  SSB  Section,  AFPC/DPPPAB,  reviewed  the 
application and  states that  although the  applicant  contends he 
did not discover the error in the report closing 8  Mar 88,  until 
11 Aug  95,  they do not agree.  They note the applicant appealed 
to the AFBCMR  for removal of the contested report in 1 9 9 1   which 
was subsequently denied by AFBCMR.  In regards to the contested 
report  closing  20  Apr  8 9 ,   they  state  that  the  applicant  has 
failed  to  provide  any  information  or  support  from  the  rating 
chain.  Also,  in  the  absence  of  information  from  evaluators, 
official substantiation of error or injustice from the Inspector 
General  (IG) or Social Actions  is  appropriate.  The  contested 
EPRs were rendered to the applicant as a result of substantiated 
unacceptable  duty  performance,  established  by  two  different 
evaluators  in  two  separate  work  centers. 
They  state  that 
apparently, the applicant made excuses for his behavior then, and 
is still convinced he did nothing wrong during either contested 
reporting period.  They state that, although the applicant claims 
they  (the evaluators) were out to ruin his reputation, they have 

3 

97-03 137 

no  evidence  (such as  a  social  actions  investigation  or  an  IG 
complaint) of  a  personality  conflict.  It  appears both  of  his 
supervisors were unable to trust him to complete any task without 
supervision.  They  mention  that, had  the  EPR  rendered  to  the 
applicant in 1 9 8 8   had itls desired effect, perhaps the applicant 
wouldn't  have  overslept  and  caused  the  tanker  mission  to  be 
delayed  two  and  one-half  hours. 
His  supervisors  obviously 
considered  him  incapable  of  accepting  future  challenges,  and 
rendered  the  1 9 8 9   report  to  accurately  reflect  his  slothful 
attitude and character.  They therefore contend the applicant's 
;refusal  to  elevate  his  performance  to  an  acceptable  level 
ultimately resulted in his administrative discharge from the Air 
Force.  Therefore, they recommend denial of applicant's request. 

I 

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

The  Military  Personnel  Management  Specialist,  AFPC/DPPRS, 
reviewed the application and states that there are no errors or 
irregularities  causing  an  injustice  to  the  applicant. 
The 
discharge complies with directives in effect at the time of his 
discharge.  They state, the incident the applicant claims should 
not  have  been  considered  because  the  incident  happened  over  a 
year before  the case was initiated was appropriately considered 
in the discharge case.  The records indicate applicant's military 
service  was  reviewed  and  appropriate  action  was  taken. 
Therefore, they recommend denial of applicant's request. 

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Copies of the Air Force evaluations were  forwarded to applicant 
on 9  Feb 9 8   for review and response within 30 days.  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  probable  error or  injustice.  After 
reviewing  the  evidence  of  record, we  are  not  persuaded  that  the 
applicant's  records are  either  in error  or that  he  has been  the 
victim of  an injustice.  Applicant's  contentions, in our opinion, 
have  been  adequately  addressed  by  the  appropriate  Air  Force 
offices.  In the  absence  of  evidence to  the  contrary, we  are  in 

4 

agreement  with  the  opinions and  recommendations of  the  Air  Force 
and adopt their rationale as the basis for our conclusion.  In view 
of  the  above  determination,  we  find  no  basis  upon  which  to 
recommend favorable action on this application. 

97-03 137 

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  10  June  1998,  under  the  provisions  of  AFI 
36-2603: 

Ms. Martha Maust, Panel Chair 
Mr. Michael P. Higgins, Member 
Mr. Gregory H. Petkoff, Member 
Ms. Phyllis L. Spence, Examiner (without vote) 

The following documentary evidence was considered: 

Exhibit A. DD Form 149, dated 13 Oct 97, w/atchs. 
Exhibit B. Applicant's Master Personnel Records. 
Exhibit C. Letter, AFLSA/JAJM, dated 26 Nov 97. 
Exhibit D. Letter, AFPC/DPPPWB, dated 16 Dec 97. 
Exhibit E. Letter, AFPC/DPPPAB, dated 14 Jan 98. 
Exhibit F. Letter, AFPC/DPPRS, dated 27 Jan 98. 
Exhibit G. Letter, AFBCMR, dated 9 Feb 98. 

MARTHA MAUST' 
Panel Chair 

5 ,  

DEPARTMENT OF THE AIR  FORCE 
A I R   FORCE  LEGAL SERVICES AGENCY  ( A F L S A )  

MEMORANDUM FOR AFBCMR 
FROM: AFLSNJAJM (Major Petrow) 
112 Luke Avenue, Room 343 
Bolling Air Force Base, DC 20332-8000 

SUBJECT: 

Applicant’s request: In an application dated 13 Oct 1997, the applicant requests 

that nonjudicial punishment, which he received in August 1989, be set aside.  The 
application was not submitted within the three-year limitation provided by 10 U.S.C. 
1552(b).  Although the applicant indicates a date of discovery of 1 1 Aug 95, he does not 
explain the late discovery nor does he offer a reason for the untimely filing. 

Facts of military justice action:  On 24 Jul89, the applicant (then Sergwt) was 
notified of his commander’s intent to impose nonjudicial punishment upon him for: (1) 
failing to go to his appointed place of duty, i.e., the LOX service plant,  at the time 
prescribed, on 15 3ul89, in violation of Article 86, UCMJ; and, (2) for being derelict in 
the performance of his duties on 15 Jul89, by failing to service the LOX carts.  On 8 Aug 
89, the applicant acknowledged that he understood his rights concerning nonjudicial 
punishment proceedings, that he had consulted a lawyer, that he waived his right to be 
tried by court-martial, and that he desired to make a personal and witten presentation to 
the commander.  On 9 Aug 89, the applicant’s commander determined that the applicant 
had committed one or more of the offenses cited and imposed punishment consisting of a 
reduction to Airman First Class. The applicant appealed, and his appeal was denied on 
21 Aug 89. 

Applicant’s contentions: The applicant asserts that on Friday, 14 June 1989, he 
made arrangements to get LOX carts serviced the following morning at 0800 hours.  The 
next day, he attended to two of the carts as scheduled.  Nothing else needed to be serviced 
at that time.  He informed his supervisor that he was going home for lunch and would 
return at 1500 hours to continue servicing the carts which he had scheduled for 1600 
hours.  After arriving at home, he fell asleep, waking up too late to make the 1600 hours 
servicing appointment.  He decided to attend to the servicing early on Sunday morning. 
The following day, he arrived early and had the carts prepared for servicing by 0800 
hours.  However, he was then informed that the service station would not be open until 
1000 hours and was unable to get the carts serviced until then. 

. 

Discussion:  Although the applicant endeavored in good faith to rectify the 

problem created by his having fallen asleep, he was nonetheless responsible for returning 
s.  As a result of his filure 
to his duty station at 1500 hours to attend t 
to do so, the RC-135 Production Supervis 
nd up being behind 
schedule by 2 1/2 hours on 16 Jun 89.  Acc 
e information available, 
the applicant’s nonjudicial punishment action was properly accomplished and he was 
afforded all the rights granted by statute. 

Recommendation:  After a review of the available records, I conclude there are 

no legal errors requiring corrective action regarding the nonjudicial punishment and 
administrative relief by this office is not possible.  I recommend that Board deny the 
applicant’s request on either its being untimely or, in the alternative, on its merits. 

i‘  iOREN S. PERlLSTEIN 

Associate Chief, Military Justice Division 
Air Force Legal Services Agency 

DEPARTMENT O F  THE  A I R   FORCE 

HEADQUARTERS AIR  FORCE  PERSONNEL CENTER 

RANDOLPH  AIR  FORCE  EASE T E X A S  

7 8  DEC 1997 

MEMORANDUM FOR AFPC/DPPPAB 

AFBCMR 
INTURN 

FROM:  HQ AFPClDPPPWB 

550 C Street West,  Ste 09 
Randolph AFB TX 78 150-471 1 

SUBJECT:  Application for Correction of Military Records 

Requested Action.  The applicant is requesting the AFBCMR void his Enlisted 

Performance Reports (EPRs) closing 8 Mar 88 and 20 Apr 89 and bis former grade of sergeant 
(E-4) be reinstated.  He was demoted as a result of An Article 15 UCMJ received 9 Aug 89. 

Reason for Request.  Applicant claims there was no basis for the adverse actions taken. 

Facts.  See Hq AFPCLDPPPAB Memorandum and AFLSNJAJM Memo, 26 Nov 97. 

Discussion. 

a.  The applicant was administered an Article 15 on 9 Aug 89.  His punishment consisted 
of a reduction from the grade of sergeant to AlC with a date of rank and effective date of 9 Aug 
89.  AFLSNJAJM has reviewed this case and determined that there are no legal errors requiring 
corrective action and has recommended denial of the applicant’s request.  We defer to their 
recommendation.  However, should the AFBCMR grant the applicant’s request his DOR and 
effective date to sergeant prior to the reduction was 4 Oct 85. 

b.  As a matter of information, removal of the two Airman Performance Reports (APRs) 
would have no impact on my previous promotion consideration as the applicant was discharged 
14 Nov 89. 

Recommendation.  We defer to the recommendations of Hq AFPCDPPPAF3 and 

AFLSNJAJM . 

Chief, InquiriedAFBCMR Section 
Enlisted Promotion Branch 

. 

.

 

-

\

 

I

I 

MEMORANDUMFOR AFBCMR 

FROM:  HQ AFPC/DPPP#U3 

550 C Street West, Suite 8 
Randolph AFB TX 78 1 SO-47M) 

SUBJECT: 

Reqyested Action.  Applicant requests voidance of the enlisted performance reports (EPRs) 
that closed out 8 Mar 88 and 20 Apr 89; removal of two alcohol related incidents; and 
withdrawal of the Article 15 dated 9 Aug 89 fiom his service records.  We Will address only the 
EPRs. 

Basis for Request.  The applicant contends two different supervisors were out to ruin his 
reputation and get rid of him. He alleges he turned in one of his indorsers fiom the 1988 EPR 
who purportedly had a drug problem.  He was subsequently moved to another work area. He 
identified a problem within the work area and allegedly confronted supervisors about "falsifying 
SAC Form." As a result, he was rendered two devastating EPRs, which he believes were 
written in retaliation against him. 

' 

Recommendation.  Time bar.  If the AFBCMR considers, we recommend denial due to 

lack of merit. The applicant separated from active duty 14 Nov 84. 

Facts and Comments. 

a.  Application is not timely.  Although he lists a date of discovery, 11 Aug 95, he 
does not give an explanation for the late discovery or explain why he was unable to file within 
the three years allowed. 

b.  The governing directive is AFR 39-62, Noncommissioned Officer and Airman 

Performance Reports, 28 Oct 83, and Enlisted Evaluation System, I  M a y  89, editions. 

c.  In support of his appeal, the applicant submits a personal brief and extraneous 

material. 

d.  We concur with the advisory opinions fiom HQ AFPClDPPPWB, 16 Dec 97, and 

HQ AFLSMJAJM, 26 Nov 97. 

e.  We will discuss the EPR rendered to the applicant 8 Mar 88 first. Although the 
applicant contends he did not discover the error until 1 1 Aug 95, we do not agree.  We note the 

9 7 0  3/37 

applicant appealed to the F B C M R  for removal of the contested report in 199lwhich was 
subsequently denied by AFBCMR, docket #91-0 1226. No new evidence has been presented to 
warrant reconsideration of this issue. 

‘ 

f. Regding the 20 Apr 89 EPR, Air Force policy is that an evaluation report is 

accurate as written when it becomes a matter of  record.  As mentioned above, in order to 
effectively challenge an EPR, it is necessary to hear from all the members of the rating chain- 
not only for support, but for clarifkation/explanation. The applicant has failed to provide any 
informatiodsupport fiom the rating chain on the 20 Apr 89 EPR. In the absence of information 
fiom evaluators, official substantiation of error or injustice fiom the Inspector General (IC) or 
Social Actions is appropriate,  but not provided in this case.  It appears the report was 
accomplished in direct accordance with applicable regulations. 

g.  The contested EPRs were rendered to the applicant as a result of substantiated 
unacceptable duty performance, established by two different evaluators in two separate work 
centers.  Apparently, the applicant made excuses for his behavior then, and is still convinced he 
did nothing wrong during either contested reporting period.  Although the applicant claims they 
were out to ruin his reputation, we have no evidence of a personality conflict,  such as a social 
actions investigation, or IG complaint.  We have only his unsubstantiated word.  It appears both 
of his supervisok were unable to trust him to complete any task without supervision.  Had the 
EPR rendered to the applicant in 1988 had it’s desired effect, perhaps the applicant wouldn’t 
have “overslept” and caused the tanker mission to be delayed two and one-half hours.  His 
supervisors obvioudy considered him incapable of accepting future challenges, and rendered the 
1989 report to accurately reflect his slothful attitude and character.  We therefore contend the 
applicant’s refusal to elevate his performance to an acceptable level ultimately resulted in his 
administrative discharge fiom the Air Force.  It is obvious the contested EPRs had their desired 
effect on the individual’s subsequent work performance, as evidenced by the fhvorable comments 
from his civilian employers. 

. i.  The burden of proof is on the applicant.  He has fkiled to substantiate his 
contention the contested reports were not rendered in good faith by all of the evaluators. 

Summary.  Based on evidence provided, our recommendation of denial is appropriate. 

, 

Chief, BCMR and SSB Section 
Directorate of Pers Program Mgt 

DEPARTMENT O F  THE A I R   FORCE 

HEADQUARTERS  AIR  FORCE  PERSONNEL CENTER 

RANDOLPH AIR  FORCE EASE TEXAS 

MEMORANDUM FOR AFBCMR 
FROM:  HQ AFPC/DPPRS 

550 C Street West Ste 11 
Randolph AFB TX 78 150-47 13 

The applicant, while serving in the grade of airman first class, was discharged from the Air 

Force 14 Nov 89 under the provisions of AFR 39-10 (Misconduct-Pattern of Minor Disciplinary 
Infractions) with a general (under honorable conditions) discharge.  He served 04 years 07 
months and 26 days total active sentice. 

Requested Action.  The applicant is requesting an upgrade of his discharge to honorable.  His 

case was reviewed by the AFDRB and denied in Oct 96 and we concur with the finding and 
recommendations of the board. 

Basis for Request.  Applicant claims the incident whereby he failed to establish procedures on 
or about: 27 May 87 and drained hydraulic fluid while pressure was still on the fluid, happened 
more thh one year prior to the discharge package being initiated, and therefore, should not have 
been in  uded in the discharge package. 

t 

! 

Facts' 

On 25 Aug 89, applicant was notified by his commander that involuntary discharge 
been initiated against him for misconduct, minor disciplinary infractions.  The 
indicated his reasons for his action were that the applicant had infractions whereby 
he had r% failure to go, failure to accomplish assigned task on 21 , 23, and 24 Mar 89, failed to 
follow jskiblished procedures before ioading aircraft equipment, failed to demonstrate the skills 
associatfd with his position as an NCO, by not communicating effectively with his subordinates, 
and fidly, failed to follow established procedures on 27 May 87 when he drained hydraulic 
fluid wqle air pressure was still on the fluid.  The applicant was advised that he had a right to 
consult legal counsel and to submit written statements in his own behalf.  Applicant offered a 
waiver Bf  his rights to an administrative discharge board conditioned upon his receipt of no less 
than a gbneral discharge.  On 7 Nov 89, the discharge authority reviewed the case and approved 
the discharge for misconduct, directing the applicant be issued a general discharge without 
probatih and rehabilitation. 

DiscAsion.  This case has been reviewed for separation processing and there are no errors or 

irregularities causing an injustice to the applicant. The discharge complies with directives in 
effect at the time of his discharge.  The incident the applicant claims should not have been 
considered because the incident happened over a year before the case was initiated y
 
appropriately considered in the discharge case.  The records indicate member's military service 
was reviewed and appropriate action was taken. 

s

Recommendation.  Applicant did not identify any specific errors in the discharge processing 

nor provide facts which warrant an upgrade of the discharge he received.  Accordingly, we 
recommend applicant's request be denied.  He has not filed a timely request. 

4 2 & / 6 z s  8 

I 

OHN C. WOOTEN, GS-9 
Military Personnel Mgmt Spec 
Separations Branch 
Dir of Personnel Program Management 

!