RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-02638
            INDEX NUMBER:  131.00; 111.02

XXXXXXXXXXXX     COUNSEL:  Bernard E. Doyle

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_______________________________________________________________

APPLICANT REQUESTS THAT:

He be promoted retroactively to the grade of master sergeant (MSgt) (E-
7).

The referral Enlisted Performance Report (EPR) rendered on him for  the
period 16 Apr 98 through 18 Dec 98  be  voided  and  removed  from  his
records.

The letter of reprimand (LOR) he received dated 5 Oct 98 be voided  and
removed from his records.

The LOR he received dated 3 Dec 98  be  voided  and  removed  from  his
records.

_______________________________________________________________

APPLICANT CONTENDS THAT:

The referral EPR he received was unjust because it  was  based  on  two
factually unsupported letters of reprimand.  His commander  issued  him
the letters of reprimand and his supervisors prepared the referral  EPR
without substantial evidence to support their underlying allegations of
misconduct.

The referral EPR unfairly caused him to become ineligible for promotion
and to lose his promotion to MSgt.

Applicant’s counsel submitted a 16-page Brief with  26  Exhibits  along
with a 22-page declaration from the applicant to  explain  and  support
the applicant’s contentions.

Counsel’s complete submission is at Exhibit A.

_______________________________________________________________

STATEMENT OF FACTS:

Information contained in the personnel data  system  reflect  that  the
applicant is presently serving on active duty in the grade of technical
sergeant (E-6).  His Total Active Federal Military Service Date  is  27
Jul 82.  The applicant was selected for promotion to  MSgt  during  the
98E7 cycle (19 May 98) with a projected pin on date of 1 Jul 99.  On  5
Oct 98, the applicant received a letter of reprimand for dereliction of
duty.  He was advised in the same  LOR  that  his  promotion  would  be
withheld for six months.  The applicant  was  notified  in  a  separate
letter, undated, that his promotion was being withheld for a period  of
six months due to his failure to fulfill his NCO responsibilities.   On
3 Dec 98, the applicant received a second LOR for  various  infractions
that were uncovered as the result of  a  Unit  Climate  Assessment.   A
commander directed referral  EPR  was  accomplished  on  the  applicant
covering the period     16 Apr 98 through 18 Dec 98.  As  a  result  of
the referral EPR, the applicant was made ineligible for  promotion  for
the 98E7 cycle and thereby  lost  his  projected  promotion.   He  also
became ineligible for promotion during the 99E7 cycle (See  AFPC/DPPPWB
evaluation at Exhibit D).  A resume of  the  applicant’s  last  12  EPR
ratings follows:

        Closeout Date             Overall Rating

        5 Apr 90                   5
        5 Apr 91                   5
        24 Nov 92                       5
        19 Jul 93                       4
        23 May 94                       5
        23 May 95                       5
        23 May 96                       5
        15 Apr 97                       5
        15 Apr 98                       5
       *18 Dec 98                       3
        18 Dec 99                       4
        01 Jun 00                       5

*  Contested EPR

_______________________________________________________________

AIR FORCE EVALUATION:

The Chief of the Fields Operations Branch, AFPC/DPSFM,  evaluated  this
application recommends denial of the applicant’s request.   The  member
presents no evidence that  the  commander  exceeded  her  authority  or
failed to follow established procedures.  In fact AFI 36-2907  provides
checks and balance to ensure the rights of the applicant were  applied.
The applicant was afforded the opportunity to refute the allegations to
the squadron commander.  The commander in-turn used her decision-making
authority when electing to uphold the LORs.

The complete evaluation is at Exhibit C.

The  Enlisted  Promotion  and  Military  Testing  Branch,  AFPC/DPPPWB,
evaluated this application and addressed the promotion issue.  They did
not make a recommendation.

The applicant was selected for promotion to MSgt  for  the  98E7  cycle
(promotions effective 1 Aug 98-1 Jul 99).  Selections were made  on  19
May 98 and announced 4 Jun 98.  He received Promotion  Sequence  Number
(PSN) 4509.0 which would have been effective 1 Jul 99, the  last  month
of the cycle.  The projected promotion was  subsequently  placed  in  a
withhold status for failure to fulfill his NCO responsibilities.   When
he received the referral  EPR  closing  18  Dec  98,  it  rendered  him
automatically ineligible for promotion for  cycle  98E7  in  accordance
with HQ AFMPC/DPMA 091602Z Jun 95 Message (attached).  In addition,  he
was also rendered ineligible for the  next  promotion  cycle  to  MSgt,
99E7.   If the Board either  removes  or  upgrades  the  referral  EPR,
removes the Promotion Withhold Letter, removes the LORs dated 5 Oct  98
and 3 Dec 98, it could reinstate the applicant’s promotion to MSgt.

The complete evaluation is at Exhibit D.

The Chief, Performance Evaluation Section, AFPC/DPPPE,  evaluated  this
application and recommends that the applicant’s request be denied.  The
disciplinary  action  taken  against  the  applicant  has  been  deemed
appropriate (refer to DPSFM advisory).  Therefore, documentation in the
referral EPR that closed out 18  Dec  98  is  considered  factual.   No
evidence exists nor does the applicant provide any support that  proves
his conduct or performance as documented by evaluators is inaccurate or
false.  All proper referral procedures were followed and  no  technical
or administrative errors exist regarding the processing of the report.

The complete evaluation is at Exhibit E.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel responded to the advisory opinions  in  a  two-
page letter, dated 12 Mar  01.   He  states  that  AFMPC/DPSFM  without
responding to the specific  issues  raised  by  the  applicant  in  his
application that the LORs were unjust and unfair because they were  not
supported by substantial evidence recommended denial because  LORs  are
not required to be legally sufficient, and there is  no  evidence  that
the commander did not  exceeded  her  authority  or  failed  to  follow
appropriate procedures.  The applicant  has  never  asserted  that  the
commander exceeded her authority in issuing the LORs.  Rather,  he  has
contended that his commander’s actions were unfair and  unjust  because
they were not supported by  the  clear  facts  in  the  case.   DPSFM’s
response totally fails to respond to the  facts  and  circumstances  of
this case, and asks the Board to deny the application without reviewing
the fairness of the commander’s actions.  In doing  so,  DPSFM  ignores
the fact that the Board has the power to correct an injustice, even  if
it does not involve a procedural violation.

AFMPC/DPPPWB  merely  confirms  in  their  advisory  opinion  that  the
applicant lost his promotion to MSgt because the referral EPR made  him
ineligible for promotion under Air Force policy.  They further  confirm
that if the referral EPR  is  removed  or  upgraded,  the  Board  could
reinstate his promotion to MSgt which would have been effective  1  Jul
99.

Finally AFPC/DPPE has asserted  that  the  referral  EPR  is  valid  as
written because the disciplinary action has been deemed appropriate  by
DPSFM and, therefore,  the  documentation  in  the  EPR  is  considered
factual.   DPPE  also  contends  that  “no  evidence  exists  nor  does
applicant provide any support that proves his conduct or performance as
documented by evaluators is inaccurate or false.”   This  statement  is
plainly wrong.  The applicant’s declaration and  numerous  exhibits  in
his application establish that he was treated  unfairly  and  that  his
records contain  inaccurate  and  false  information.   In  particular,
Exhibits 8-13 and 16-24 show that the applicant’s supervisors  unfairly
rated him in his Dec 98 referral EPR.

The fact that the applicant’s supervisors afforded him the minimal  due
process provided under Air Force policy does not  negate  the  evidence
that he was unfairly and unjustly  disciplined  and  denied  promotion.
The Air Force’s argument that his commander’s  exercise  of  discretion
should not be disturbed fails because the applicant has shown that  his
commander and supervisor’s actions were factually unsupported.

Counsel’s complete response is at Exhibit G.

_______________________________________________________________


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.   Based  on  the
evidence of record, the Board wonders if the applicant was provided
sufficient training and the opportunity to improve his performance.
 The Board notes that this was the applicant’s first position as  a
supervisor  and  that  all  of  his  previous  performance  reports
indicated outstanding performance.  The first letter of  reprimand,
without the Unfavorable  Information  File  (UIF)  entry,  and  the
accompanying  promotion  withhold  letter  would  have  given   the
applicant an opportunity to improve  his  performance.   Since  the
applicant was not due an annual performance report until 19 Apr  98
and was not scheduled for promotion  until  1  Jul  99,  the  Board
believes that there was sufficient time to monitor his  performance
and make a decision on his  promotion.   The  Board  believes  this
would have been a reasonable approach; however, the UIF entry,  the
promotion withhold letter,  the  second  letter  of  reprimand  and
subsequent  commander  directed  referral   EPR   took   away   all
opportunity for the applicant to improve his performance  and  save
his promotion.   In  addition,  the  referral  EPR  also  made  him
ineligible for the next promotion cycle.  While the  applicant  has
requested that both  letters  of  reprimand  be  removed  from  his
records, the Board notes that the first  letter  of  reprimand,  by
itself,  did  not  impact  his  promotion  and   appeared   to   be
rehabilitative in nature.  Therefore, the Board  believes  that  it
should not be removed from  the  applicant’s  records.   The  other
actions taken against the applicant, however, in  addition  to  the
first  letter  of  reprimand,  seem  overly   harsh   and   unjust.
Therefore, the Board recommends that  the  applicant’s  records  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:

        a.  Any reference to the Letter of Reprimand, dated  5  Oct
98, being filed in a UIF be removed from his record.

        b.  The Letter of Reprimand, dated 3 Dec  98,  be  declared
void and removed from his records.

        c.  The Promotion Withhold letter, undated, withholding his
promotion for the period 7 Oct 98 to 7 Apr 99 be removed  from  his
records.

        d.  The Enlisted Performance Report, AF Form 910,  rendered
for the period 16 Apr 98 through 18 December 98, be  declared  void
and removed from his records.

        e.  He  be  promoted  to  the  grade  of  master  sergeant,
effective and with a date of rank, of 1 Jul 99.

___________________________________________________________________

The following members of the Board considered this  application  in
Executive Session on 3 April 2001, under the provisions of AFI  36-
2603:

      Ms. Charlene M. Bradley, Panel Chair
      Mr. Timothy Beyland, Member
      Mr. Roscoe Hinton, Member

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

     Exhibit A.  DD Form 149, dated 25 Sep 2000, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPSFM, dated 3 Jan 01
     Exhibit D.  Memorandum, AFPC/DPPPWB, dated 4 Jan 01, w/atchs.
     Exhibit E.  Memorandum, AFPC/DPPPE, dated 16 Jan 01.
     Exhibit F.  Letter, SAF/MIBR, dated 16 Feb 01.




                                   CHARLENE M. BRADLEY
                                   Panel Chair



AFBCMR 00-02638




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, XXX-XX-XXXX, be corrected to show
that:

            a.  Any reference to the Letter of Reprimand, dated 5
Oct 98, being filed in a UIF be, and hereby is, delared void and
removed from his records.

            b.  The Letter of Reprimand, dated 3 Dec 98, be, and
hereby is, declared void and removed from his records.

            c.  The Promotion Withhold letter, undated, withholding
his promotion for the period    7 Oct 98 to 7 Apr 99 be, and hereby
is, declared void and removed from his records.

            d.  The Enlisted Performance Report, AF Form 910,
rendered for the period 16 Apr 98 through 18 December 98, be, and
hereby is, declared void and removed from his records.

            e.  He was promoted to the grade of master sergeant,
effective, and with date of rank, of   1 July 1999.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency