RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-00304
            INDEX NUMBER:  111.02

XXXXXXXXXXXX     COUNSEL:  None
XXXXXXXXXXXX     HEARING DESIRED:  No

___________________________________________________________________

APPLICANT REQUESTS THAT:

The Enlisted Performance Report (EPR) closing out 2  December  1995
be removed from his records.

___________________________________________________________________

APPLICANT CONTENDS THAT:

He was given a “2” rating and a referral EPR as retribution for his
refusal of an Article 15 and demand for trial by court-martial.

His rater was coerced into giving him the low  ratings  and  making
the report a referral.

His rater did not supervise him during the  entire  period  of  the
report.

He was given performance feedback twice during  the  rating  period
and that the last  feedback  indicated  that  he  “should  have  no
problem attaining a “5” EPR.”

Applicant’s complete submission is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

Information taken from the Personnel  Data  System  (PDS)  reflects
that the applicant’s Total Active Federal Military Service Date  is
8 June 1992.  He is currently serving on active duty in  the  grade
of Senior Airman (SrA) (E-4) with a date of rank of 8 June 1995.

Applicant’s EPR profile follows:

      Period Closing         Overall Evaluation

        27 May 94                4
        2 Dec 94           5
       *2 Dec 95           2
        9 Aug 96           3
        1 Jun 97           4
       15 Jan 98           5

*  Contested report.  Two similar appeals filed  by  the  applicant
under the provisions of AFI 36-2401 were denied by  the  Evaluation
Reports Appeal Board on 17 Nov 97 and 16 Dec 99.

___________________________________________________________________

AIR FORCE EVALUATION

The  Inquiries/AFBCMR  Section,  AFPC/DPPPAB,   provided   comments
addressing supplemental promotion consideration.  Should the  Board
void  the  contested  report  in  its  entirety,  providing  he  is
otherwise eligible, the applicant will be entitled to  supplemental
promotion consideration beginning with cycle 97E5.   The  applicant
will not become a select during cycles  97E5  or  98E7,  but  would
become a select  for  the  99E5  cycle  pending  a  favorable  data
verification and the recommendation of the commander.

The complete evaluation is at Exhibit C.

AFPC/DPPP reviewed this application and recommended denial  of  the
applicant’s request.

The applicant  contends  he  received  a  referral  report  out  of
retaliation because he declined Article 15 punishment and asked for
a trial by court-martial.  However, he  was  not  tried  by  court-
martial; rather, his commander  gave  him  a  letter  of  reprimand
(LOR), put him on the control  roster,  and  relieved  him  of  all
security police duties.  All of these actions  were  sufficient  to
cause impact on the EPR.

The applicant contends the rater on the report was not actually his
rater when the report closed out.  It is important to note that AFI
36-2403, Attachment 1,  defines  a  “rater”  as  one  “assigned  to
provide periodic performance feedback and to  prepare  an  enlisted
performance report when required.  The rater is usually the ratee’s
immediate supervisor.”  The rater does not necessarily have  to  be
the first-line supervisor, even if  he  eventually  gives  feedback
and/or writes an EPR.  In  addition,  neither  the  rater  nor  the
applicant provided evidence as to why the  rater  signed  both  the
report and the referral letter.

The applicant also states he should have received a  “5”  EPR  just
because his rater wrote on his feedback form, “you should  have  no
problem attaining a 5 EPR.”  The feedback form is dated 25 Jul  95,
almost two  months  prior  to  when  the  Article  15/court-martial
situation occurred, and five months before the closeout date of the
contested EPR.  There is no Air Force guidance that states comments
and ratings on feedback forms should match those on the  subsequent
EPR.

The burden of proof is  on  the  applicant;  however,  he  has  not
provided conclusive proof to show  the  contested  report  was  not
rendered in good faith by all evaluators  based  on  the  knowledge
available at the time.

The complete evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION

The applicant responded to the Air Force  evaluation  with  another
statement from his rater at the time of the contested report.

The rater states that there was no support from the endorser on the
contested report because he did not  bring  to  his  attention  the
coercion he was receiving outside of  the  rating  chain  from  the
First Sergeant.  The rater states that the statement  he  wrote  in
the EPR, “Relieved of all security police duties  and  assigned  to
the Civil Engineering Shop” does not  in  any  way  justify  a  “2”
rating, or any negative rating.  Being  relieved  of  duty  in  the
security police career field is a  standardized  way  to  place  an
individual under investigation.  This does not mean  he  is  guilty
until  proven  innocent,   or   innocent   until   proven   guilty.
Furthermore, the LOR/control roster could not have caused an impact
on the applicant’s EPR.  The LOR/control roster action was given to
the applicant after the closeout of the report.

The rater states that the last feedback session  he  had  with  the
applicant on 25 Jul 95 was the last contact he had until instructed
he would write the EPR.

The rater further states that in a  casual  conversation  with  the
First Sergeant, he was told that he would  write  the  applicant  a
referral EPR because the applicant turned down the Article 15.  The
applicant made the Commander very mad by doing that.

The rater’s complete statement is 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.  Sufficient relevant evidence has been presented to  demonstrate
the existence of probable error or injustice warranting  corrective
action.  It was not clear to the Board why the  applicant  was  not
given his “day in  court”  when  he  refused  the  Article  15  and
demanded trial by court-martial in September 1995.  It was also not
clear why the Letter of Reprimand given to the  applicant  for  the
same incident was  not  done  until  16  January  1996.   AFPC/DPPP
indicates in their advisory that the LOR and control roster  action
imposed on the applicant were sufficient to  cause  impact  on  the
EPR.  As the applicant correctly points  out,  these  actions  were
done after the closeout date of the EPR in question.  The Board was
further persuaded by the statements  provided  by  the  applicant’s
rater that the “2”  rating  was  unjust.   Accordingly,  the  Board
recommends that the record be corrected as 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  Report,  AF  Form  910,  rendered   for   the   period
3 December 1994 through  2  December  1995  be  declared  void  and
removed from his records.

It  is  further  recommended  that  he  be  provided   supplemental
consideration for promotion to the grade of  Staff  Sergeant  (E-5)
for all appropriate cycles beginning with cycle 97E5.

If  selected  for  promotion  to  Staff  Sergeant  by  supplemental
consideration,  he  be   provided   any   additional   supplemental
consideration required as a result of that selection.

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  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  18  April  2000,  under  the  provisions  of
    AFI 36-2603:

      Mr. Joseph G. Diamond, Panel Chair
      Mrs. Margaret A. Zook, Member
      Mr. Clarence D. Long III, Member

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

     Exhibit A.  DD Form 149, dated 21 Jan 00, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPPAB, dated 18 Feb 00.
     Exhibit D.  Memorandum, AFPC/DPPP, dated 17 Mar 00.
     Exhibit E.  Letter, SAF/MIBR, dated, 21 Jan 00.
     Exhibit F.  Memorandum, Applicant’s Rater, dated 22 Apr 00.



                                   JOSEPH G. DIAMOND
                                   Panel Chair



AFBCMR 00-00304




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:

      The pertinent military records of the Department of  the  Air
 Force relating to  XXXXXXXXXX,  be  corrected  to  show  that  the
 Enlisted Performance Report, AF Form 910, rendered for the  period
 3 December 1994  through  2  December  1995  be,  and  hereby  is,
 declared void and removed from his records.


      It is further  directed  that  he  be  provided  supplemental
 consideration for promotion to the grade of Staff Sergeant for all
 appropriate cycles beginning with cycle 97E5.


      If selected for promotion to Staff Sergeant  by  supplemental
 consideration,  he  be  provided   any   additional   supplemental
 consideration required as a result of that selection.


      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 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.










            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency