RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01959
            INDEX CODE:  111.02

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Enlisted Performance Report (EPR) rendered for the period  8 March
2000 through 7 March 2001 be declared void or remove referral comments
and upgraded to an overall “5” rating.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His squadron commander and squadron section  commander  made  negative
changes to his EPR based on information  that  should  not  have  been
considered or relied upon.  This was unlawful and unfair.

In support of the appeal, applicant submits a  personal  statement,  a
Reconsideration of EPR package from his  Defense  Counsel,  and  three
character references.  Applicant's complete submission is attached  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the  grade
of staff sergeant, having  been  promoted  to  that  grade,  effective  1
February 1997. He currently has a High Year of Tenure  Date  of  1  April
2009.  EPR profile since 1996 reflects the following:

      PERIOD ENDING    PROMOTION RECOMMENDATION

        30 May 96                 5
         7 Mar 97                 5
         7 Mar 98                 5
         7 Mar 99                 5
         7 Mar 00                 5
        *7 Mar 01                 3
        19 Jan 02                 5
        19 Jan 03                 5

*  Contested report.  Promotion Recommendation downgraded from
   “5” to “3” by the commander.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPWB states that should the AFBCMR grant his request, providing
he  is  otherwise  eligible,  the  applicant  will  be   entitled   to
supplemental promotion consideration beginning with  cycle  01E6.   It
would serve  no  useful  purpose  to  provide  him  with  supplemental
consideration for this cycle, as he could not be selected.  He  missed
selection for cycle 01E6 by 1.72 points.  It is uncertain  whether  he
would become a select for cycle 02E6 as there are no  test  scores  on
file since he was ineligible for  this  cycle  and  never  tested.   A
complete copy of the evaluation is attached at Exhibit C.

Examiner’s  Note:   AFPC/DPPPWB  advised  that   the   applicant   was
ineligible for promotion consideration during cycle  02E6  because  of
the contested referral report.  Removing the  report  would  reinstate
his promotion eligibility for this cycle.  The applicant was  eligible
and is currently undergoing  consideration  for  promotion  for  cycle
03E6.  The results of this consideration have not yet been finalized.

AFPC/DPPPEP states that in reference to  the  applicant’s  contentions
that the EPR is unjust because his command section prematurely made  a
decision on his off-duty conduct and that  an  extension  should  have
been requested to ensure  the  allegations  were  confirmed  prior  to
submitting the report, they state that they are  authorized  to  grant
extensions for 59 days and  the  final  decision  on  the  applicant’s
assault with a deadly weapon charge (the only  action  still  pending)
was not resolved until 12 June 2001.  In reference  to  the  applicant
contending that since a decision had not been reached on  the  assault
charge,  it  should  not  have  been  considered  when  rendering   an
assessment, they state the section commander  and  squadron  commander
obtained information of the arrest from the actual police report.   In
the absence of evidence to the contrary and the  file  contains  none,
they can assume the information was from a reliable source.

In reference to the applicant’s arrest for being drunk and  disorderly
on 23 June 2000 and his  contention  he  did  not  start  arguing  and
resisting arrest until the police threatened the other people  in  the
house, they state, regardless of either account, the applicant clearly
engaged in conduct that is inconsistent with Air Force standards.

In reference to the applicant being arrested a  second  time  and  his
defending his behavior by stating it was  self  defense,  and  stating
that he was later acquitted of the crime, therefore, the reference  to
the arrest is unjust,  they  state,  even  though  the  applicant  was
acquitted of one crime, the fact remains he again engaged in  behavior
inconsistent  with  Air  Force  standards  and  the  evaluators   were
justified in using the information provided in the police report  when
assessing  performance.   Even  if  this  basis  was   found   to   be
inappropriate, they believe the remaining evidence  is  sufficient  to
support the referral and rating that was given.

Applicant’s contention that Family Advocacy assumed he had argued with
his wife in front of the children at home, but did not  have  evidence
to substantiate the allegation  and  therefore,  it  is  unjust,  they
state, the Family Advocacy  Office  is  not  bound  by  any  rules  of
evidence because they do not impose  punishment  and  as  such,  their
finding of family abuse was opinionated.  Although the finding may  be
opinionated, the Family Advocacy counselors are trained  professionals
relied  upon  to  give  educated  assessments  and   the   applicant’s
evaluators are obliged to consider them, as well, even  if  punishment
is or is not imposed.

In summary, DPPPEP is of the opinion that the  actions  taken  by  the
ERAB were lawful and fair.  The applicant did not provide any evidence
to show  the  referral  comments  were  erroneous  or  unjust.   While
character  references  are  commendable,  they  do  not  override  the
evaluators’ assessments of the ratee’s off duty  conduct.   Therefore,
they recommend denial of applicant’s request.

A complete copy of their evaluation, with attachments, is attached  at
Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluation and states that  he  still
believes that the information  used  to  make  the  decision  to  make
changes to his EPR after it was  a  matter  of  permanent  record  was
unfair and not in compliance of AFI 36-2406.

In reference to paragraph e of the evaluation, he  does  not  wish  to
discredit the officer in any way.  He does  wish  to  point  out  that
police reports are written by people and are subject to  human  error,
prejudice, and emotions.  He’s sure the police officer that  responded
to his house on a call of shots fired had plenty of  adrenaline  going
when he encountered him at his home.  At the same time, he was  caught
totally off guard not knowing why  the  police  were  there,  and  not
expecting to have weapons drawn on him.  He states,  whether  he  (the
officer) felt threatened by him is his opinion.  While  they  did  get
into an argument, and he accepted responsibility for his participation
in it, he did not feel that the officer’s badge gave him the right  to
speak to him or anyone at his house any way he felt.  As to  providing
evidence to the contrary, he asks what is there to provide.  Once  the
report was written it was not questionable, only he  was.   He  states
AFI 36-2406, paragraph 3.7.7,  also  states  that  “Raters  should  be
particularly  cautious   about   referring   to   charges   preferred,
investigations, or boards of inquiry, or  using  information  obtained
from those sources, or any similar action related to  a  member,  that
are not complete as of the close-out date of the report.”  He  states,
since he was still in court defending himself, comments on a case that
was not complete should not have been allowed.  AFI 36-2406, Paragraph
3.7.6 states, “Prior events gives the rater a chance to include events
(negative or positive) that add  significantly  in  the  ratee’s  next
report if this one is closed.”  So there was no need to rush and  have
it included in this report due to its close out date.

In reference to paragraph g,  he  states  that  he  was  acquitted  of
committing any crime.  Paragraph h  incorrectly  references  his  case
with the Family Advocacy Office.  No case of  family  abuse  was  ever
entered against him, a case of emotional maltreatment was.  The Family
Advocacy Center did not have any proof of him  doing  anything  wrong.
They recommended that he take classes on stress and anger due  to  all
that was happening in his life on a volunteer basis.  He knew this and
sought help in November 2000 at the mental health  flight.   He  feels
that his completion of the recommended classes and additional  classes
he volunteered for, along with  counseling  started  prior  to  Family
Advocacy to be a benefit to himself.  He  fails  to  see  how  seeking
clinical help is something you should be punished for on an EPR.

He hopes the Board can see why he believes that this EPR was  unjustly
and unfairly downgraded to an overall rating of a “3” one  week  after
returning the news that  he  was  acquitted  of  committing  the  more
serious of the three accusations made against him.  He feels  that  he
should not be punished for being acquitted or seeking  clinical  help.
Furthermore, if punishing him a second time for the charge of drunk in
public, at his home, after he paid his debt to  the  court  system  is
warranted, he believes that a referral EPR with an overall rating of a
3 is excessive when you take into consideration the remainder  of  his
EPR marks.  He hopes the Board can try to understand his  feelings  of
despair he felt that one-year.

A copy of applicant’s  response,  with  attachments,  is  attached  at
Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AF/JAG states that the squadron commander appealed to the ERAB to have
the originally processed report substituted--with  such  appeal  being
subsequently approved.  The Secretary of  the  Air  Force  established
ERAB to assess just such requests to correct evaluation reports.  They
reviewed the ERAB process in this case and can see no reason  for  the
AFBCMR to upset its findings.

In summary, the commander explained to the ERAB that when she received
the draft of the applicant’s EPR for initial review, the  marking  and
ratings raised a red flag in her mind.  When reviewing the draft,  she
raised the issue  of  the  apparent  discrepancy  between  rating  the
applicant’s conduct as unacceptable and still endorsing an overall “5”
for immediate promotion.  She believed that she could  not  concur  on
the ratings and indicated in the remarks  section  of  the  EPR  cover
sheet  that  the  rater  and  additional  rater  were  to  “reevaluate
markings,” and  also  circled  and  question-marked  the  overall  “5”
rating.  When the EPR came back to her for final review and signature,
she explains that out of habit she initiated the EPR cover  sheet  and
indicated “signed.”  After signing  the  commander’s  review  section,
however, she noticed that  the  markings  and  ratings  had  not  been
changed.  Although the commander intended to hold the EPR for  further
discussions with the raters, it was inadvertently sent  out  in  final
version.  Therefore, although the final EPR  indicated  that  “Concur”
was marked in the commander’s review block, she never actually  marked
(or authorized someone else  to  do  so  on  her  behalf)  either  the
“Concur” or “Nonconcur” box.   In  the  commander’s  application,  she
acknowledged a lack of personal organization  and  that  she  had  not
handled the situation effectively.

While the  applicant  contends  that  the  substitution  of  EPRs  was
unlawful and unfair, there is no evidence to indicate that the ERAB in
any way abused its discretion.

Of note, the  applicant  argues  that  AFI  36-2406,  Paragraph  3.7.8
prohibits reference to the September 2000 charges--the Assault With  a
Deadly Weapon charge that ended in acquittal  and  the  less  included
Simple Assault charge that ended in a hung jury.  Paragraph 3.7.8 does
provide that it is inappropriate to consider “any  action  against  an
individual that resulted in an acquittal.”  However, the  comments  on
AF Form 77 cite only to the incidents leading to his  arrest  and  the
actual arrest, not to any subsequent charges or actions that may  have
resulted therefrom.  Moreover, even if reference to the “arrest”  were
omitted, there would still be a sufficient basis to  uphold  the  ERAB
decision (based upon both the conduct underlying the  arrest  and  the
other two incidents).

In  conclusion,  JAG  believes  the  actions  taken  by  the  squadron
commander and the ERAB were in accordance with applicable regulations.
 The applicant did not provide sufficient evidence to  show  that  the
process in changing  the  EPR  was  defective  or  that  the  referral
comments were erroneous or unjust.  Therefore, they  recommend  denial
of applicant’s request.


A copy of their evaluation is attached at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant states that he still believes there was no proof of  any
misconduct by himself  other  than  the  one-time  incident  of  being
charged with drunk in public while at his own home.

He argued the section commander’s decision to change his EPR due to  a
clerical error was unfair, largely due to the fact that at the time he
felt that it was wrong to wait until  a  verdict  of  not  guilty  was
handed down to change his EPR.  He had the feeling  that  his  command
section was anticipating  a  different  verdict  and  waited  to  take
action.  The report was already overdue by months, so its contents had
been reviewed and allowed to pass.  No paperwork was given to  him  at
the time it became a matter of record to indicate a problem  with  the
report.  It would be customary to have a  Form  77  ready  along  with
supporting documents for a drastic change in rating.  An  error  in  a
single box would have been easily explained with those documents.   He
just didn’t feel the answers he was getting justified the  claim  that
someone else marked the box,  knowing  how  important  an  EPR  is  to
someone’s career.

The applicant indicates that the statement made by the  JAG  (that  an
argument degenerated into a physical fight and from  this  he  stabbed
his brother-in-law) is not fully true.  He did not feel that  he  gave
up his right to defend himself in his decision to defend his  country.
It was in the courtroom statements of the witnesses and Mr. L---  (his
brother-in-law) under oath, along with the letter provided by him that
collaborated these facts and won him a “not  guilty”  verdict  on  the
charge of assault with a deadly weapon-the only charge at the time  of
his arrest.  It was on the last day of the  trial  that  the  district
attorney added the lesser charges of “simple  assault,  and  battery.”
He was found not guilty of the simple assault, and the jury could  not
convict on battery charge.  The district attorney could  not  convince
the jury he had even pushed Mr. L--- in a manner other than to  defend
himself for the charge of battery.  The trial ended with a not  guilty
verdict, and the judge ruled that the lesser charges could not be  re-
tried, as they were not the  original  charges.   As  for  the  claims
against him of emotional maltreatment against his family, Captain M---
of the Family Advocacy submitted a letter stating that  there  was  no
proof of any wrongdoing on his part.   The  accusations  of  emotional
maltreatment, or as they defined it  of  having  possibly  raised  his
voice with family members in the house, was never proven.  It was just
substantiated on the possibility it could have happened.


He hopes the Board will see that just being accused in these incidents
does not mean he was guilty of doing anything to discredit himself  or
the Air Force.  He was attempting to leave when he was  attacked,  but
he did not have time to run from or avoid the attack.   The  claim  of
emotionally abusing his family members could not be disputed, as there
was no proof to dispute only assumptions.  At the time of the EPR  his
duty performance was considered exceptional, as per the  comments  and
other marks  in  the  EPR,  and  his  personal  records  contained  no
derogatory comments.

A copy of applicant’s  response,  with  attachments,  is  attached  at
Exhibit I.

_________________________________________________________________

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  voidance  of  the
contested report.  After reviewing the  evidence  of  record,  we  are
persuaded that the original EPR closing 7 March 2001 and the corrected
report were influenced by charges against the applicant, which had not
been finalized.  Whether or not the final court decision would  change
the ratings on the contested report is not known.  However, we believe
that under the existing circumstances, the EPR in question  should  be
declared void.   We  have  noted  the  applicant’s  request  that  the
Promotion Recommendation on the contested report be upgraded to a  the
highest rating and are not inclined to approve such relief,  believing
instead that, based on the circumstances of this case, by voiding  the
contested report, he will be afforded proper and fitting relief.   Our
opinion in this regard is based on the fact  that  while  the  actions
against the applicant had not been finalized, it appears that  he  did
exhibit some questionable behaviors during the rating period of  which
the evaluators were well aware and which were properly recorded by his
rater and additional rater in their comments.  It is our opinion  that
under any circumstances, the cited comments would have had  an  impact
on the promotion recommendation.  Accordingly, the applicant’s request
that the rating be upgraded is not favorably considered.

4.  In view of the relief we propose, the applicant should be provided
supplemental promotion consideration by all appropriate cycles.

_________________________________________________________________

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 8 March  2000
through 7 March 2001, be declared void and removed from his records.

It is further recommended  that  applicant  be  provided  supplemental
consideration for promotion to the grade of technical sergeant for all
appropriate cycles beginning with cycle 01E6.

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 applicant was promoted to  the
higher grade on the date  of  rank  established  by  the  supplemental
promotion and that applicant 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 2 April 2003, under the  provisions  of  AFI  36-
2603:

                  Mr. Edward C. Koenig, III, Panel Chair
                  Mr. Thomas J. Topolski, Jr., Member
              Ms. Brenda L. Romine, Member

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

   Exhibit A.  DD Form 149, dated 13 Jun 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPPWB, dated 22 Aug 02, w/atch.
   Exhibit D.  Letter, AFPC/DPPPEP, dated 27 Aug 02, w/atchs.
   Exhibit E.  Letter, SAF/MRBR, dated 30 Aug 02.
   Exhibit F.  Applicant's Response, dated 23 Sep 02,w/atchs.
   Exhibit G.  Letter, HQ USAF/JAG, dated 6 Dec 02.
   Exhibit H.  Letter, AFBCMR, dated 14 Jan 03.
   Exhibit I.  Applicant’s Response, dated 11 Feb 03, w/atchs.



                                   EDWARD C. KOENIG, III
                                   Panel Chair







AFBCMR BC-2002-01959
INDEX CODE:  111.02



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, be corrected to show that the Enlisted Performance
Report, AF Form 910, rendered for the period 8 March 2000 through 7
March 2001, be, and hereby is, declared void and removed from his
records.

      It is further directed that applicant be provided supplemental
consideration for promotion to the grade of technical sergeant for all
appropriate cycles beginning with cycle 01E6.

      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 applicant was promoted to
the higher grade on the date of rank established by the supplemental
promotion and that applicant is entitled to all pay, allowances, and
benefits of such grade as of that date.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency