RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 00-02311
                       INDEX CODE  111.02  111.05  131.09  131.05
                             COUNSEL:  None

                             HEARING DESIRED:  Yes
_________________________________________________________________

APPLICANT REQUESTS THAT:

The referral Enlisted Performance Report (EPR) for the period  closing
13 Sep 99 be removed from his records, his promotion  sequence  number
(PSN) to master sergeant (MSgt) be reinstated, and he be  promoted  to
MSgt.
_________________________________________________________________

APPLICANT CONTENDS THAT:

His squadron (38th Reconnaissance Squadron)  planned  to  redline  his
promotion to MSgt by writing the referral EPR before hearing the  true
facts of the incident. On the advice of his attorney, he had  pled  no
contest in a civilian court to a charge of disturbing the peace  on  6
Feb 99.  This was then used against him even though his squadron  knew
he did not disturb the peace; an airman had  made  false  allegations.
The EPR  should  have  been  based  on  the  true  facts  of  his  job
performance.  He was discriminated against and, if this appeal is  not
granted, his impeccable outstanding career is over.

Copies of the applicant's complete submission, with supplemental  Memo
dated 29 Nov 00, are at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the grade of technical  sergeant
(Date of Rank: 7 Jul 97) and is assigned to  the  38th  Reconnaissance
Squadron at Offutt AFB, NE, as the NCOIC of Aircrew Life Support.

The overall ratings of applicant’s performance reports  from  1990  to
present are:  4, 5, 5, 5, 4, 5, 5, 3, 5, 5, 2 (contested EPR), and  5.
Copies of the EPRs are provided at Exhibit B.

The applicant was tentatively selected for promotion  to  MSgt  during
the 99E7 promotion cycle. His Promotion Sequence  Number  (PSN)  would
have been effective 1 Jul 00.

On 2 Aug 99 in  Sarpy  County  Court,  NE,  the  applicant  pled  nolo
contendre to a charge of disturbing the “peace and quiet of a  person,
family or neighborhood” on 6 Feb 99.  He paid a fine of $100.00.

The contested EPR was referred to him on 28 Sep  99.   He  was  marked
“Unacceptable” in on/off duty conduct, and the rater remarked that the
applicant had “improved his  conduct  after  off-duty  civil  criminal
conviction  of  ‘disturbing  the  peace.’”   He  became  automatically
ineligible for promotion when he received the report.

On 16 Feb 00, the following charges were served on the applicant:

      CHARGE I:  On or about 6 Feb 99, he did, with intent  unlawfully
to obtain something of value, communicate to senior airman (SRA) E-- a
threat to “turn you in and tell our commander everything,” or words to
that effect.

      CHARGE II: On or about 6 Feb 99,  he  did  unlawfully  slam  the
hands of SRA E-- in a doorjamb with a door.

      CHARGE III:
          Specification 1:  On or about 6 Feb 99,  he  did  wrongfully
and  willfully  impersonate   an   Air   Force   Office   of   Special
Investigations (AFOSI) agent by telling SRA E-- that he was  an  agent
for the OSI and taking her to the  apartment  of  airman  first  class
(A1C) D-- in order to talk to her about an investigation.
          Specification 2:  On or about 6 Feb 99,  did  willfully  and
wrongfully inveigle and hold SRA E--, a person not  a  minor,  against
her will.

On 23 Feb 00, a special court-martial convened  at  Offutt  AFB.   The
applicant pled not guilty to all charges and, on 24 Feb 00, the  court
found him not guilty of all charges.

The applicant filed a  similar  appeal  with  the  Evaluation  Reports
Appeal Board (ERAB) under the provisions  of  AFI  36-2401.   However,
after asking HQ AFPC/JA  to  review  the  evidence  presented  by  the
applicant, the ERAB denied his appeal on 27 Apr 00. The ERAB indicated
the applicant was found guilty of disturbing the peace and fined by  a
civilian court system after pleading no contest and  no  inappropriate
comments were found on the report.

Pursuant to the  AFBCMR  Staff’s  inquiry,  SAF/IGQ  advised  that  no
Inspector  General   investigation   was   performed   regarding   the
applicant’s complaints. Instead, he was referred  to  the  appropriate
office to assist him in his complaints.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief  Inquiries/AFBCMR  Section,  HQ  AFPC/DPPPWB,  reviewed  the
appeal and confirms that, should the Board void the EPR, the applicant
would be eligible to be promoted to MSgt on 1 Jul 00  provided  he  is
otherwise eligible and recommended by his commander.  The Chief defers
recommendation to HQ AFPC/DPPPE regarding the EPR.

A copy of the complete evaluation, with attachment, is at Exhibit C.

The Chief, Evaluation Programs Branch, HQ AFPC/DPPPE,  indicates  that
the ERAB was correct with their assessment of  the  appeal.  The  ERAB
found the report to be an accurate assessment and that the  evaluators
were obliged to  consider  such  incidents.   The  applicant  has  not
provided any supporting documentation regarding errors on the  EPR  or
any evidence to substantiate his allegation of discrimination.  He has
not proved that the referenced airman made any false statements.   The
applicant pled no contest to the charge of disturbing the peace; thus,
there was a conviction for this criminal charge. He is  mistaken  when
he  states  that  there  was  “no  criminal  conviction.”   The  Chief
recommends denial and advises that  HQ  AFPC/JA  concurred  with  this
advisory.

A copy of the complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant asserts that the Office of Primary Responsibility  (OPR)
did not review his case in its entirety and the Board did not  receive
his complete package.  [When  the  applicant’s  case  arrived  at  the
AFBCMR, the Staff noted some documents appeared  to  be  missing.  The
AFBCMR Staff contacted both the applicant and the ERAB and the missing
documents were obtained.  The  applicant’s  complete  original  appeal
package is presented at Exhibit A.] He  adds  that,  contrary  to  the
advisory  opinion  and  the  ERAB’s  decision  on  his   appeal,   the
allegations that led to his arrest were false. If the allegations  had
not been false, he would not have been found not guilty of all charges
at  the  court-martial.  The  very  issue  itself  is   contradictory.
Discrimination is hard to prove in the military, but it has definitely
played a  large  part  in  this  case.   The  airman  who  made  false
statements against him was white, as was each member in his  chain  of
command. The “criminal conviction” of disturbing the peace is a  Class
III misdemeanor and should not affect his military career.  Why  would
one be punished for conduct that he was  later  found  not  guilty  of
conducting?

The applicant  includes  a  complete  copy  of  the  documentation  he
provided in his appeals to the ERAB and the AFBCMR.

His complete submission, with attachments, is at Exhibit H.

_________________________________________________________________

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.  After a thorough review
of the evidence of record and the applicant’s complete  submission,  a
majority of the Board is not persuaded that the contested  EPR  should
be voided and  his  PSN  reinstated.  The  EPR  states  the  applicant
improved his conduct “after  off-duty  civil  criminal  conviction  of
‘disturbing the peace.’” The applicant did  plead  nolo  contendre  in
civilian court on 2 Aug 99 to a charge of disturbing the peace,  which
did, in fact, result in a conviction and fine.  Since this information
was available to the rating chain at the time the  EPR  was  rendered,
the evaluators properly considered it in  their  assessment.  Further,
the applicant did  not  submit  rebuttal  comments  to  the  EPR.  The
applicant’s subsequent acquittal by  court-martial  of  three  charges
does not, in the majority’s view, invalidate the report’s reference to
a civilian court’s conviction. While the applicant asserts he was  the
victim of discrimination and he complained to the IG, SAF/IGQ  advised
that the applicant’s phone calls  to  the  IG  were  referred  to  the
appropriate office. Typically, appeals regarding  performance  reports
do not come under the purview of the IG; such complaints are processed
under the provisions of AFI 36-2401 and reviewed  by  the  ERAB.   The
ERAB did review the applicant’s appeal and subsequently denied it.  If
the  applicant  believed  he  was  the   victim   of   discrimination,
harassment, or inappropriate command authority, he could have filed an
official complaint with either the  IG  or  Social  Actions.   In  the
majority’s view, had such allegations been sustained in the  resultant
investigation, the applicant could  have  presented  a  possibly  more
persuasive case today.  However, in  view  of  the  above  and  absent
persuasive evidence to the contrary, the Board majority concludes  the
applicant has failed to sustain his burden of having  suffered  either
an error or an injustice and finds no compelling  basis  to  recommend
granting the relief sought.

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.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 26 April 2001, under the provisions  of  AFI  36-
2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Ms. Nancy W. Drury, Member
                  Mr. John E. Pettit, Member

By a majority vote, the Board recommended denial of  the  application.
Ms. Drury voted to grant, but she does not wish to submit  a  Minority
Report. The Board unanimously denied the  applicant’s  request  for  a
personal  appearance.   The   following   documentary   evidence   was
considered:

   Exhibit A.  DD Form 149, dated 4 Sep 00, and Memo dated
                              29 Nov 00, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPWB, dated 1 Dec 00, w/atch.
   Exhibit D.  Letter, HQ AFPC/DPPPE, dated 5 Jan 01.
   Exhibit E.  Letter, SAF/MIBR, dated 19 Jan 01.
   Exhibit F.  Letter, Applicant, dated 19 Feb 01.
   Exhibit G.  Letter, AFBCMR, dated 6 Mar 01, w/atchs.
   Exhibit H.  Letter, Applicant, dated 2 Mar 01 (received on
                              7 Mar 01), w/atchs.




                                   RICHARD A. PETERSON
                                   Panel Chair


AFBCMR  00-02311





MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                                        FOR CORRECTION OF MILITARY
RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.




                                                   JOE G. LINEBERGER
                                                   Director
                                                   Air Force Review
Boards Agency