RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:            DOCKET NUMBER:  98-02525
                 INDEX CODE:  111.02

                 COUNSEL:  NONE

                 HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His  Enlisted  Performance  Report  (EPR),  rendered  for  the  period
16 April 1995 through 15 April 1996, be declared void and removed from
his records.

By amendment, if the contested EPR is removed  from  his  records,  he
requests a Board-directed promotion  to  the  grade  of  chief  master
sergeant (E-9), with appropriate date of rank to be determined by  the
Board; or, in the alternative, supplemental  promotion  consideration.
Should his application be approved subsequent to his  retirement  date
of 1 September 1999, he be given the option of  (1)  reinstatement  to
active duty in the rank of chief master sergeant (E-9), with a date of
rank determined by the Board; or (2)retroactive promotion to the grade
of E-9 and authorization to retire in the grade of E-9.
_________________________________________________________________

APPLICANT CONTENDS THAT:

In October 1995, he was entered into  the  Weight  Management  Program
(WMP) and should have been classified as “Initial  Entry”  instead  of
“Unsatisfactory”.  Due to the erroneous classification by his squadron
section commander  (Captain  H---),  his  records  were  removed  from
promotion board consideration to the grade of chief master sergeant (E-
9) for the 96E9 promotion cycle.  He discovered the error three  weeks
after the promotion results were released (he did  eventually  receive
supplemental promotion consideration).  In December 1995, he  informed
his rater (squadron commander) of the problem and  subsequently  filed
an Article  138  complaint  against  the  squadron  section  commander
(Captain H---) for her actions.  He  believes  that  the  Article  138
action planted the seed for reprisal action against him by either  the
rater (squadron commander) or the rater’s rater (group commander) when
they did not  recommend  him  for  a  senior  rater  indorsement.   He
believes the  rater  displayed  questionable  integrity  and  did  not
objectively evaluate his performance as a result of  his  Article  138
complaint.  He also filed Inspector General (IG)  complaints  alleging
that he suffered reprisal for the filing of an Article 138  (Complaint
of  Wrong).   The  IG  concluded  that  the   allegations   were   not
substantiated and no further action was taken.

His rater failed to properly provide performance feedback and  made  a
false statement on the EPR, Section V, in regard  to  why  performance
feedback  was  not  conducted.   Based  on  documents  he  (applicant)
obtained from a FOIA request, the rater should have known  his  tenure
would be prolonged in late December 1995, but still did not provide  a
feedback report until early February 1996.   In  addition,  his  rater
failed to include pertinent achievements on the  contested  EPR;  and,
the contested EPR is inconsistent with previous and subsequent EPRs.

When the contested EPR was reviewed  by  the  next  regular  selection
board in 1996, he received a less-than-average board score (315 out of
a possible 450) due to no senior rater indorsement and a  very  weakly
worded EPR, factors he believes were caused by the  rater’s  bias  and
possible reprisal.  The presence of the contested EPR  is  an  anomaly
that has no place in his records.

In support of his request, the applicant submits a personal  statement
and additional documents associated  with  the  issues  cited  in  his
contentions.  These documents are appended at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System (PDS) reveals the
applicant’s Total Active Federal Military Service Date (TAFMSD) as  28
August 1973.  He is currently serving on active duty in the  grade  of
senior master sergeant (E-8), with an effective date and date of  rank
of 1 October 1992.  The following  is  a  resume  of  applicant’s  EPR
ratings subsequent to his promotion to that grade.

            Period Ending    Evaluation

              15 Sep 93      5 - Immediate Promotion
              15 Sep 94      5
              15 Apr 95      5
            * 15 Apr 96      5
              31 Dec 96      5
               2 Jan 98      5
               2 Jan 99      5

* Contested report

Two similar appeals by the  applicant,  under  Air  Force  Instruction
(AFI) 36-2401, were considered and denied  by  the  Evaluation  Report
Appeal Board (ERAB) on 16 August 1996 and 13 May 1997.

Information maintained in the PDS reveals that  the  applicant  has  a
High Year Tenure (HYT) date of August 1999 and that he  currently  has
an established date of separation (DOS) of 23 September 1999.
_________________________________________________________________

AIR FORCE EVALUATION:

The Enlisted Promotion Branch, HQ AFPC/DPPPWB, stated that  the  first
promotion  cycle  the  contested  EPR  was  used  in  the  applicant’s
promotion consideration was cycle 96E9 (promotions  effective  January
1997 - December 1997).  If the contested EPR is removed, the applicant
would be entitled to supplemental  promotion  consideration  to  chief
master sergeant (E-9) beginning with the 96E9 cycle,  provided  he  is
recommended by his commander and is otherwise qualified (Exhibit C).

The Directorate  of  Personnel  Program  Management,  HQ  AFPC/DPPPAB,
reviewed this application and recommended denial.  DPPPAB stated  that
the applicant has failed to provide any information/support  from  the
rating chain on the contested EPR.  In the absence of information from
evaluators, official substantiation of error  or  injustice  from  the
Inspector General (IG) or Social Actions is appropriate.

The applicant contends his rater wrote a very  weak  EPR  in  reprisal
against him because he filed a complaint  under  Article  138.   As  a
result of the weak EPR, he believes his commander  nonrecommended  him
for a senior rater indorsement.   DPPPAB  stated  that  the  applicant
failed to provide any convincing evidence  to  prove  reprisal  was  a
factor.  The evidence he did provide substantiates  reprisal  did  not
occur.   The  HQ  USAFE/IG  Summary  Report  of  Investigation  (SROI)
findings concluded the testimony and evidence they uncovered  revealed
that both the applicant’s rater and his commander had  acted  properly
and in accordance with established Air Force directives.  It was  also
determined that  the  lack  of  senior  rater’s  indorsement  was  not
reprisal.  Rather, it was based on the applicant’s duty performance.

DPPPAB indicated that the fact the applicant did not receive  feedback
in accordance with AFI 36-2403 is substantiated in the SROI.  However,
the investigation  also  substantiated  that  applicant’s  duties  and
responsibilities were presented to him by his rater as early as August
1995 (informally)  and  then  again  at  a  meeting  between  he,  his
commander and group commander in October 1995.  In  the  October  1995
meeting, the applicant was told by his rater that he would not receive
a senior rater indorsement if his performance persisted at the current
level.

DPPPAB stated that the  applicant’s  contention  the  EPR  is  invalid
because it includes  a  false  statement  in  Section  V  (the  reason
feedback was not conducted) is unfounded.  Other than his own opinion,
the applicant  has  failed  to  provide  any  evidence  to  prove  the
statement is false - the SROI found the statement to be true.  Lack of
counseling or feedback, by itself, is not sufficient to challenge  the
accuracy or justness of a report.  The applicant  admits  that,  as  a
senior noncommissioned  officer  (SNCO),  he  should  have  been  more
proactive in seeking feedback.

The applicant contends that all the information  he  provided  to  his
rater to use in his EPR was not used.  DPPPAB indicated that while Air
Force policy does charge a rater to get  meaningful  information  from
the ratee and as many sources as possible, it is the rater’s  ultimate
responsibility to determine which accomplishments are included on  the
EPR and whether or not it is necessary for him  to  gather  additional
information  from  other  sources  in  order  to  render  an  accurate
assessment of the individual.  Although  the  applicant  believes  his
evaluators lacked integrity, DPPPAB believes the rater, because of his
integrity,  rendered  a  valid  assessment  of  the  applicant’s  duty
performance as substantiated by the HQ USAFE/IG SROI.

The applicant asserts his rater’s rater had very limited contact  with
him during the reporting period and was, therefore, unable to render a
proper evaluation of his duty performance.   DPPPAB  stated  that  the
fact the applicant’s rater’s rater had only three encounters with  him
during the reporting period is irrelevant.  Air  Force  policy  allows
evaluators, other than  the  rater,  to  be  assigned  at  any  point.
Subsequent evaluators are not required to have “first-hand  knowledge”
of the ratee - if they feel their knowledge is insufficient, they  may
obtain information from other reliable sources.  The applicant has not
substantiated the contested report was not rendered in good  faith  by
all evaluators based on knowledge of his performance available at  the
time.

DPPPAB disagrees with the applicant’s contention that his rater should
have  considered  his  past  accomplishments  when  he  rendered   the
contested EPR since he only rated him for 193 days.  Air Force  policy
states  that  only  120  days  of  supervision  are  required   before
accomplishing an EPR; and the EPR was designed to provide a rating for
a specific period of time based on the performance noted  during  that
period, not  based  on  previous  performance.   With  regard  to  the
applicant’s contention that his  EPR  is  inconsistent  with  previous
performance, while Air Force policy authorizes the rater  to  consider
earlier reports, they are prohibited from commenting on them.   DPPPAB
stated  that  the  applicant  has  not  provided  adequate  proof   to
substantiate the report is inaccurate.

DPPPAB noted the applicant asked HQ  AFPC/CC  in  his  19  March  1997
correspondence to implement the policy “No  performance  feedback,  no
EPR”.  The applicant admitted in this  appeal  that  he  had  received
senior rater endorsement on  previous  EPRs  without  the  benefit  of
performance feedbacks.   DPPPAB  indicated  that  when  requesting  an
entire  report  be  voided,  the  applicant   needs   to   take   into
consideration that any complimentary comments on the contested  report
will also be removed from the records if his request is approved.

A complete copy of this evaluation is appended at Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinions and indicated that he did
contact the rater’s rater (Colonel P) asking  him  to  reconsider  his
evaluation - his reply was that he had rendered a  fair  and  accurate
assessment of applicant’s performance.  He did provide  evidence  with
his application that the  performance  feedback  statement  is  false.
These  documents  contain  evidence,  that  when  properly  evaluated,
confirms how the feedback statement is false, because at the time  his
initial feedback was due, the rater had no factual reason  to  believe
his tenure would be short-lived.  It is highly probably the rater knew
what the facts were at the  time  he  made  the  statement,  knew  the
statement was false, yet made it a part of an official document, which
indicates a lack of integrity.  He hopes the Board will  consider  the
scenario he has described as being probable and as  such,  allow  some
room to doubt the rating chain’s credibility and integrity.  The rater
again demonstrated a lack of integrity when he told  the  HQ  USAFE/IG
investigator that he assisted  him  (applicant)  in  constructing  the
Article 135 complaint he filed against the squadron section commander.
 The fact remains - the rater did not  assist  him  in  creating  this
complaint and as such, he (rater) made a false  statement  to  the  IG
investigator.  He detailed this scenario in his DOD IG complaint,  but
it was not acted upon.  His rating chain was interested in  concealing
their failure to perform  feedback  correctly  and  they  were  biased
against  him  because  of  actions  he  took  against  one  of   their
subordinate officers which may have placed  them  in  an  embarrassing
position.

His allegations that the rater used weak and  diluted  accomplishments
were not addressed.  He asks the Board to  review  the  February  1996
feedback (Tab B) and the inputs he provided the rater (Tab D) in March
1995.   If  two  commanders  are  willing  to  give  him  the  highest
positional  and  numerical  ratings,  why  wouldn’t  they  write   the
narrative to match the ratings?  He  believes  the  raters’  purposely
weakened his EPR despite the “firewall” ratings as a means to  reprise
against him  for  his  previous  actions  regarding  the  Article  138
compliant.   They  knew  full  well  the  lack  of  a   senior   rater
indorsement, along with a  diluted  narrative,  would  make  him  non-
competitive for promotion.  His board score for  the  1996  evaluation
board the next year, with the contested EPR on top, was 315 points out
of a possible 450.

He has always received senior rater indorsement prior to mid-1995 when
he was eligible for it, and, true again, he did not  receive  feedback
then, because, prior to June 1995,  performance  feedback  for  senior
NCOs was not required - it was optional.  His previous raters were not
obligated to provide him with feedback until AFPC changed  the  policy
in  mid-June  1995.   The  reviewer  continuously   points   out   his
deficiencies in not demanding feedback, but has little  to  say  about
the shortfalls of the superiors and their respective failure to render
feedback without having to be told to do so by their subordinates.

As a matter of equity and fairness, the most appropriate  way  to  set
things right and to demonstrate accountability is  to  invalidate  the
contested report, since the evaluators did not  fulfill  their  duties
with integrity.  Because of  the  negligence  of  a  section  squadron
commander,  he  was  not  considered  with  his  peers  for  the  1995
evaluation board and had to rely on a supplemental  promotion  process
that does not promote on an equal percentage as do the regular boards.
 Because the rating chain would not tell him  what  actions  they  had
taken against the negligent officer, he filed an Article 138 complaint
against her, hoping to find that answer.

He asks the Board to approve his application and  void  the  contested
EPR based on the  possibility  of  reprisal  in  the  actions  of  his
superiors, the false statements made by the rating chain  and  falsity
of the rater's testimony in the USAFE/SROI.

A complete copy of this response is appended at Exhibit F.
_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of probable error or injustice.  We took notice  of  the
applicant's complete submission in judging the  merits  of  the  case.
Applicant’s contentions are duly noted; however, we do not find  these
uncorroborated  assertions,  in  and   by   themselves,   sufficiently
persuasive to override the rationale provided by the Air Force  office
of primary responsibility, HQ AFPC/DPPPAB.  We  noted  that  once  the
applicant’s erroneous classification in the Weight Management  Program
(WMP) was realized, corrective action was taken and the applicant  was
provided supplemental promotion consideration.  We are  not  convinced
by the evidence  presented  that  the  contested  report  was  biased,
retaliatory or an inaccurate assessment of his performance during  the
pertinent rating period.  While we did note that the IG  substantiated
his allegation that the feedback was not conducted on  time,  we  also
noted that the remainder of his allegations  were  not  substantiated.
With respect to the feedback issue, we do not find the rater’s failure
to conduct timely counseling or feedback sessions to be  a  sufficient
basis to invalidate the report.  In view of the above, we  agree  with
the recommendation of the Air Force and adopt the rationale  expressed
as the basis for our decision that the applicant has failed to sustain
his burden that he has suffered  either  an  error  or  an  injustice.
Absent persuasive evidence to the  contrary,  we  find  no  compelling
basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not  been
shown  that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of  the  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________

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 13 April 1999, under the provisions  of  AFI  36-
2603:

                  Mr. Terry A. Yonkers, Panel Chair
                  Mr. Mike Novel, Member
                  Mr. James R. Lonon, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 31 Aug 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPWB, dated 15 Sep 98.
   Exhibit D.  Letter, HQ AFPC/DPPPAB, dated 5 Oct 98
   Exhibit E.  Letter, SAF/MIBR, dated 19 Oct 98.
   Exhibit F.  Letter from applicant, dated 10 Nov 98.




                                   TERRY A. YONKERS
                                   Panel Chair