AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  98-00266 

COUNSEL:  None 

HEARING DESIRED:  NO 

APPLICANT REOUESTS THAT: 

The Enlisted Performance Reports (EPRs), closing 21 July 1989 and 
18 November 1989,  reflecting an overall promotion recommendation 
of  “4“  be removed from his records, and the EPRs, closing 21 July 
1989  and  18  November  1989  reflecting  an  overall  promotion 
recommendation  of  “5”  which  he  has  provided,  be  filed  in  his 
records in their proper sequence. 

APPLICANT CONTENDS THAT: 

The  rater  and  indorser  of  the  contested  EPRs  have  provided 
statements indicating that if it had not been for a local policy 
of no  “ 5 ”   EPRs for airmen, he would have received a  ‘ 5 “   on both 
EPRs. 

Applicant’s complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

The relevant facts pertaining to this application, extracted from 
the  applicant’s military  records, are  contained  in the  letters 
prepared  by  the  appropriate  offices  of  the  Air  Force. 
Accordingly,  there  is  no  need  to  recite  these  facts  in  this 
Record of Proceedings. 

AIR FORCE EVALUATION: 

The  Chief,  BCMR  and  SSB  Section,  AFPC/DPPPA,  reviewed  this 
application  and  states  that  both  reaccomplished  EPRs  not  only 
have a change in the overall promotion recommendations from a “ 3 ”  
to a ” 5 ” ,   but also upgrades in several of the performance factors 
in Section I11 as well.  However, the rater has not explained why 
he has upgraded these performance  factors.  Further, neither of 
the  evaluators  have  dated  their  signatures  on  either 
reaccomplished  EPRs,  and  there  is  no  commander’s  review  and 

signature on either report.  Therefore, they recommend denial of 
applicant's request. 

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

The  Chief  Inquiries/AFBCMR  Section, AFPC/DPPPWB, reviewed  this 
application and states that the first time the two EPRs impacted 
applicant's promotion consideration was cycle 94A5. 

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

The applicant reviewed the Air  Force evaluation and provided  a 
response which is attached at Exhibit F. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
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 .   Sufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  a  probable  error  or  injustice  to 
warrant  removing  the  contested  reports  from  the  applicant's 
records.  The  applicant  contends  that  based  on  a  local 
Consolidated Base Personnel Office  (CBPO) policy as a result of a 
misunderstanding of the new Enlisted Evaluation System  (EES), no 
airmen were assigned overall promotion recommendations of  '5"  on 
their  EPRs.  In  support of  this  contention, the  applicant has 
provided reaccomplished reports and statements from the rater and 
indorser of the contested EPRs indicating that if it had not been 
for the local CBPO policy, the applicant would have received an 
overall  recommendation  of 
on  the  contested  reports. 
However, the reaccomplished reports are not dated by the rating 
and  indorsing officials, and the  commander's review section has 
not  been  completed.  Furthermore,  although  the  reaccomplished 
reports contain upgrades in several of the performance factors in 
Section 111, there  is no explanation provided by  the rater for 
these upgraded performance factors. Should the applicant provide 
a statement from the commander at the time the contested reports 
were  rendered,  the  Board  would  entertain  his  request  for 
reconsideration.  Based  on  the  statements  from  the  reporting 
officials, it  appears  the  contested reports were  influenced by 
the local CBPO policy and are not an accurate assessment of  the 

'5" 

2 

applicant's performance during the contested periods.  In view of 
the statements from the rating officials and since the applicant 
has indicated that if the contested reports are not replaced with 
the  reaccomplished  reports,  they  be  voided,  we  believe  the 
contested reports should be removed from the applicant's records. 
In addition, we  recommend he  be provided  supplemental promotion 
consideration  for  all  appropriate  cycles  beginning  with  cycle 
94A5.  Therefore, we  recommend his  records be  corrected to  the 
extent indicated below. 

THE BOARD RECOMMENDS THAT: 

The pertinent military records of the Department of the Air Force 
relating  to  APPLICANT, be  corrected  to  show  that  the  Enlisted 
Performance Reports, AF  Forms  910, rendered  for the  periods  2 2  
July  1988  through  2 1   July  1989  and  2 2   July  1989  through 
18 November 1989, be declared void and removed from his records. 

It is further recommended that he be  provided supplemental 
promotion  consideration to  the  grade  of  staff  sergeant  for all 
appropriate cycles beginning with cycle 94195. 

If AFPC discovers any adverse factors during or subsequent 
to  supplemental consideration that  are  separate and  apart, and 
unrelated to the issues involved in this application, that would 
have  rendered  the  applicant  ineligible for the  promotion, such 
information will be documented and presented to the board  for a 
final  determination  on  the  individual's qualification  for  the 
promotion. 

If  supplemental  promotion  consideration  results  in  the 
selection  for promotion  to  the  higher  grade, immediately after 
such promotion the records shall be corrected to show that he was 
promoted to the higher grade on the date of  rank established by 
the  supplemental promotion  and  that he  is entitled to all pay, 
allowances, and benefits of such grade as of that date. 

The following members of the Board considered this application in 
Executive Session on 7 April  1998, under  the provisions of AFI 
3 6 - 2 6 0 2 :  

Mr. Vaughn E. Schlunz, Panel Chair 
Mr. Robert Zook, Member 
Mr. Michael P. Higgins, Member 
Mr. Phillip E. Horton, Examiner  (without vote) 

All  members  voted  to correct the  records, as recommended.  The 
following documentary evidence was considered: 

Exhibit A.  DD Form 149, dated 28 an 98, w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, AFPC/DPPPA, dated 5 Feb 98, w/atchs. 
Exhibit D.  Letter, AFPC/DPPPWB, dated 30 Jan 98. 
Exhibit E.  Letter, AFBCMR, dated 11 Feb 98. 
Exhibit F.  Letter, Applicant, dated 23 Feb 98, w/atchs. 

Pane< Chair 

4 

DEPARTMENT OF THE  A I R   FORCE 

HEADQUARTERS AIR  FORCE P E R S O N N E L  C E N T E R  

RANDOLPH AIR  FORCE E A S E  TEXAS 

5 FEB 98 

MEMORANDUM FOR  AFBCMR 
FROM: HQ AFPCDPPPA 

550 C Street West, Suite 8 
Randolph AFB TX 78150-4710 

SUBJECT: AFI 36-2603 Application-Staff Sergeant 

Requested Action.  The applicant requests removal and replacement of the 2 1 Jul89 and 

18 Nov 89 enlisted performance reports (EPRs). 

Basis for Request.  The applicant contends the two EPRS were written based on a 

consolidated base personnel oflice (CBPO) policy as a result of the misunderstanding of the new 
enlisted evaluation system (EES).  The “policy” was that airmen wouId not receive a “5” EPR. 

Recommendation. Time-bar.  If, however, the AFBCMR considers, then we recommend 

denial. 

Facts and Comments. 

a.  The application is not timely filed.  The application may also be dismissed under 

the equitable doctrine of laches, which denies relief to one who has unreasonably and 
inexcusably delayed in asserting a claim.  Laches consists of two elements:  inexcusable delay 
and prejudice to the Air Force resulting therefrom.  In the applicant’s case, he has waited over 
eight years to file and took no action on the claim before that.  The applicant claims the reason he 
did not file sooner was because he did not want to give the impression that he was trying to “beat 
the system” since he is a personnelist.  This is in spite of the fact that the applicant has letters of 
support from his rater and indorser-both dated in 199 1.  The applicant has inexcusably delayed 
his appeal (providing no explanation) and, as a result, the Air Force no longer has documents on 
file, memories fade, and this complicates the ability to determine the merits of his position.  In 
addition, the test to be applied is not whether the applicant discovered the error within three 
years, but whether, through due diligence, it was discoverable (see OpJAGAF 1988/56,28  Sep 
88, and the cases cited therein).  Clearly, the alleged error(s) upon which he relies hashave been 
discoverable since the alleged error@) occurred.  In short, the Air Force asserts that the 
applicant’s unreasonable delay regarding a matter now dating back eight years has greatly 
complicated its ability to determine the merits of the applicant’s position. 

b. If the AFBCMR considers, then we recommend denial due to lack of merit.  By 

law, a claim must be filed within three years of the date of discovery of the alleged error or 
injustice (10 U.S.C. 1552[b]).  It is obvious that the errors claimed here were discoverable at the 

time they occurred.  The applicant has not offered a concrete explanation for filing late.  While 
we would normally recommend the application be denied as untimely, we are aware that the 
AFBCMR has determined it must adhere to the decision in the case of Dehveifer v. Pena, 
38F.3d591 (D.C. Cir 1994)--which prevents application of the statute’s time bar if the applicant 
has filed within three years of separation or retirement. 

c.  No similar application was submitted under AFI 36-2401, Correcting Oflicer and 
Enlisted Evaluation Reports.  We did not return the application since the contested reports are 
more than three years old. 

d.  The governing directive is AFR 39-62, Enlisted Evaluation System (EES) , 

1 Mar 89, 

e.  The applicant contends that when the two contested EPRs were written, they were 

written based on a CBPO policy as a result of a misunderstanding of the EES which was 
implemented on 1 May 89.  The policy was “airmen would not receive a ‘5’ EPR.” The 
applicant states that had these EPRs been “5s” “as they should haye been,” he would have been 
promoted to staffsergeant in an earlier cycle which would have given him 10 months more time- 
in-grade.  In addition, he stated he would have received an additional five weighted points.  He 
states, “The lack of these five points may very well jeopardize my chance for promotion to TSgt 
in hture cycles.” 

f.  As support, the applicant provides statements, dated 3 1 Jan 9 1 and 13 May 9 1, 
fiom both his rater and indorser, respectively.  Both of these individuals state the applicant far 
exceeded expectations and was deserving of a “5”  rating.  However, due to a “misinterpretation” 
of the new EES, the applicant was given an overall promotion recommendation of  “4.”  Both 
individuals mentioned either a CBPO or squadron policy, but neither individual nor the applicant 
has provided a copy of this policy to support this claim. 

g.  The applicant included a copy of the Air Force Chief of Staffs 14 Dec 89 letter 

addressed to all EES senior raters in which he discusses distribution of ratings and levels of 
indorsement.  The Chief of Staff clearly explains that a middle block of “3” reports satisfactory 
performance.  In the applicant’s case, only 25% of airmen first class (A 1 C) were expected to 
receive “5” ratings.  The Chief of Staff also explains that this percentage is not a quota.  He 
states, “They are to provide raters with an understanding of general expectations.  And, it is 
important to note that with over 42,000 A1C EPRs processed since the changes to EES, the 
rating distribution for that group matches our expectation.” AIG 8 106 message, dated  1 Nov 91 
(attached), states that expectations are still in effect; however, raters at all levels are reminded 
that they are just a guide, and each individual should receive the rating they have earned and 
deserve. 

h.  In reviewing both reaccomplished EPRs, we noted not only a change in the overall 
promotion recommendations fiom “3” to “5,”  but upgrades in several of the performance factors 
in section 111 as well.  The rater has not explained why he has upgraded these performance 
factors.  Further, neither of the evaluators have dated their signatures on either reaccomplished 

EPR, and there is no commander’s review and signature on either report.  Further, neither of the 
reviewers from either reporting period have been heard from in support of this appeal,  (If the 
AFBCMR decides in favor of the applicant, the reaccomplished versions of the report submitted 
with the appeal cannot be accepted for file until all the dates and commander’s review and 
signature have be obtained.)  In our opinion, the ratings in section 111 are commensurate with the 
overall promotion recommendations of “4” on both of the contested reports.  The purpose of the 
promotion recommendation is to evaluate the ratee’s performance and how it compares with the 
performance of others in the same grade and Air Force specialty (AFS).  Neither of the 
evaluators have discussed how well the applicant compared to other AlCs in the same AFS. 

i.  Evaluation reports are considered accurate as written unless substantial evidence to 
the contrary is provided.  As such, they receive exhaustive reviews prior to becoming a matter of 
record.  Any report can be rewritten to be more hard hitting, to provide embellishments, or 
enhance the ratee’s promotion potential.  But the time to do that is before the report becomes a 
matter of record.  None of the supporters of the applicant’s appeal explain how they were 
hindered from rendering a fair and accurate assessment of the applicant’s performance prior to 
the report being made a matter of record.  The appeals process does not exist to recreate history 
or enhance chances for promotion.  It appears this is exactly what the applicant is attempting to 
do--recreate history.  As such, we are not convinced the contested reports are not accurate as 
written and do not support the request for removal and replacement. 

Swnmary.  We strongly recommend this appeal be time-barred from consideration. If, 

however, the AFBCMR considers, then we recommend denial due to lack of merit. 

&Z.&- 

JOYCE E. HOGAN 
Chief, BCMR and SSB Section 
Directorate of Pers Program Mgt 

Attachment: 
AIG 8106 Msg, 012210ZNov 91 

cc: 
SAFMBR 

DEPARTMENT OF THE A I R   FORCE 

HEADQUARTERS  AIR FORCE PERSONNEL CENTER 

RANDOLPH AIR  FORCE BASE TEXAS 

MEMORANDUM FOR  AFPC/DPPPAB 

AFBCMR 
IN TURN 

FROM:  HQ AFPCLDPPPWB 

550 C Street West, Ste 09 
Randolph AFB TX 78150-471 1 

SUBJECT: Application for Correction of Military Records 

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

Performance Reports (EPRs) closing 21 Jul89 and 18 Nov 89 rated “4” and replace them with 
the two reaccomplished EPRs he has provided, rated  “5”.  We will address the supplemental 
promotion consideration issue should the request be approved. 

Reason for Request.  The applicant has provided statements from both the rater and 

indorser of the two EPRs who state that if it had not been for a local policy of no “5”  EPRs for 
airmen, he would have received a “5” on both reports. 

Facts.  See Hq AFPCDPPPAB Letter. 

Discussion. The fust time the two EPRs impacted his promotion consideration was cycle 
94A5 to SSgt (promotions effective Sep 93 - Aug 94).  Should the AFBCMR void the contested 
reports and replace them with the two reports provided, providing he is otherwise eligible, the 
airman will be entitled to supplemental promotion consideration beginning with cycle 94A5.  He 
would become a selectee for this cycle pending a favorable data verification and the 
recommendation of the commander. 

Recommendation. We defer to the recommendation of Hq AFPCDPPPAB. 

%-e 

R.  ERRJTT 

TO 
Chief InquiriedAFBCMR Section 
Airman Promotion Branch 

cc: 
S A F W R