RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS



IN THE MATTER OF:      DOCKET NUMBER:  02-03828
                       INDEX CODE:  111.02

      APPLICANT  COUNSEL:  None

      SSN        HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

His  Enlisted  Performance Report (EPR) rendered  for  the  period  26
July 2000 through 11 June 2001 and  all  accompanying  attachments  be
declared void  and  he  be  considered  for  promotion  by  a  special
selection board (SSB).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was tried by Article 15, which was terminated in March  2001,  when
his EPR became due in June 2001, the Article 15 was written  into  his
EPR.

Applicant's complete submission,  with  attachments,  is  attached  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Regular  Air  Force  in  the
grade of senior master sergeant.

A formal equal opportunity and treatment (EOT)  complaint  for  sexual
harassment was filed by  Airman First  Class (A1C) S.  on  4  December
2000 against the applicant for unwarranted comments  and  gestures  he
made to her from August  2000  through  November  2000.   A  complaint
clarification dated 20 December 2000 was conducted and determined  the
allegations were substantiated.  On 20 December 2000, AAC/JA  reviewed
the complaint clarification and found it to be legally sufficient.  In
a letter dated, 27 April 2001, the  applicant  appealed  the  findings
that he sexually harassed A1C S.  HQ  AFMCJA  reviewed  the  file  and
found it legally sufficient and recommended the appeal be denied.   In
a letter dated 12 October 2001, AFMC/DP  denied  the  appeal.   AAC/CC
denied
the appeal on 2 November 2001.  HQ USAF reviewed the appeal and denied
it on 3 April 2002.  The applicant on 5 June 2002, appealed to SAF/MRB
as the final decision authority.  SAF/MRB  denied  the  appeal  on  28
August 2002.  A copy of the MEO Complaint clarification  and  findings
is at Exhibit C.

The applicant appealed the contested report under  the  provisions  of
AFI 36-2401, Correcting Officer and Enlisted Evaluations Reports.  The
Evaluation Reports Appeal Board (ERAB) denied the request stating  the
applicant did not prove the Military Equal Opportunity (MEO) complaint
referenced on his EPR was erroneous.

EPR profile as a senior master sergeant reflects the following:

                 PERIOD ENDING               OVERALL EVALUATION

                   25 Jul 99                       5
                   25 Jul 00                       5
                  *11 Jun 01                       3
                   11 Jun 02                       5

* Referral/Contested report.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPE states the EPR in question does not mention the Article 15.
 Although the Article 15 may have been adjudicated, that does not mean
the incidents cited within the Article 15 did not  happen.   The  fact
remains  the  applicant  was  accused  of  committing  several  sexual
discriminating acts against  at  least  two  individuals,  which  were
substantiated by the Military  Equal  Opportunity  (MEO)  office.   In
accordance  with  Air  Force  policy  evaluators  must   consider   an
individual’s commitment to EOT when evaluating performance and  making
a promotion  recommendation.   Furthermore,  evaluators  must  reflect
serious and repeated occurrences of discrimination, to include  sexual
harassment, as prescribed in directives governing the  Military  Equal
Opportunity and Treatment Program.

The supporting documentation the applicant provided from the rater and
additional rater appears to be giving  their  retrospective  views  of
their evaluation.   The  applicant  contends  that  senior  leadership
“kicked back” the EPR in order  to  include  the  MEO  complaint.   In
accordance with AFI 36-2406, Table 3.2, line  20,  “Evaluators  should
discuss disagreements when preparing reports.   Prior  evaluators  are
first given an opportunity to change  the  evaluation;  however,  they
will not change their evaluation just to  satisfy  the  evaluator  who
disagrees.”   The  applicant  has  not  provided   any   evidence   to
substantiate  that  his  rating  chain  was  forced  to   change   the
evaluation.  Furthermore,
Air Force policy is that an evaluation report is accurate  as  written
when it becomes a matter of record.  Therefore, based on the  evidence
submitted they recommend the applicant’s request to have the  EPR  for
the period ending 11 June 2001 voided be denied.

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

AFPC/DPPPWB states the first cycle the contested EPR would possibly be
considered in the promotion process is the 01E9 cycle.  Since, the EPR
is a referral  it  renders  the  applicant  ineligible  for  promotion
consideration according to AFI 36-2502.  They  further  state  if  the
Board voids the EPR in question, providing he is  otherwise  eligible,
the applicant will be entitled to supplemental promotion consideration
beginning with cycle 01E9.  DPPPE recommends the  applicant’s  request
to void the EPR be denied.  DPPPWB defers to their recommendation.

A complete copy of their evaluation is attached at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states although the Air Force evaluation stated,  “while
the applicant’s Article 15 may have been adjudicated,  that  does  not
mean that the incident cited within the Article  15  did  not  happen.
The applicant responded that it does not mean the incidents cited  did
happen either; the Article 15 was determined  before  the  judge  (his
commander) and terminated.

He states  he  was  only  accused  of  sexual  discrimination  by  one
individual, which was never proven, because  it  was  not  true.   The
other individual never filed a complaint against him.  The MEO took it
upon themselves to include her as  an  accuser  to  help  substantiate
their false case against him.

The advisory states there are no errors or  injustices  cited  in  the
applicant’s EPR.  This is unethical  and  an  injustice  to  write  or
mention a negative comment in his EPR regarding the MEO substantiation
after a higher authority adjudicated it.  He would have been  promoted
if it were not for the unethical EPR.

He further states if the AFBCMR denies his appeal they will be sending
the message that MEO substantiation is of  a  higher  legal  authority
than an Article 15 proceeding, which was adjudicated.

Lastly he stated the military should support due process  of  law,  as
does the civilian sector (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.     Insufficient  relevant  evidence   has   been   presented   to
demonstrate the existence of an error or injustice.  Essentially, the
applicant alleges that since the Article 15, accusing him  of  sexual
harassment  toward  two  female  airmen,  was  adjudicated   by   his
commander, it should  not  have  been  used  as  the  basis  for  the
contested referral report.  A review of the contested report  reveals
no mention of the Article 15.   Rather,  it  would  appear  that  the
contested report was prepared in response  to  the  findings  of  the
Military Equal Opportunity office substantiating sexual harassment by
the applicant.  The statements from the rater and reviewer  are  duly
noted; however, we find no persuasive evidence that these individuals
were coerced into changing their initial  rating  of  the  applicant.
Interestingly, the reviewer/commander of the contested report has not
provided a statement in the applicant’s behalf; however, it is  noted
that he was the same  individual  who  adjudicated  the  Article  15.
Further, we find no persuasive evidence that this is not an  accurate
assessment of the applicant’s total performance during the  contested
time period.  His duty performance is not being called into question;
however, his  judgment  and  professional  qualities  were  certainly
lacking during this time frame.  The  applicant’s  conduct  toward  a
junior service member was egregious and as such, by  regulation,  was
required  to  be  reflected  on  the  contested  report  during   the
evaluation of his performance and potential for promotion.   In  view
of the above findings, we agree with the opinions and recommendations
of the Air Force and adopt their  rationale  as  the  basis  for  our
conclusion that the applicant has not been the victim of an error  or
injustice.  Therefore, in the absence of 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 AFBCMR Docket Number 02-
03828 in Executive Session on 11 March 2003, under the  provisions  of
AFI 36-2603:

                       Mr. David C. Van Gasbeck, Panel Chair
                       Mr. Martha Maust, Member
                       Mr. George Franklin, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 22 Nov 02, w/atchs.
      Exhibit B. Master Personnel Records.
      Exhibit C. MEO Complaint-withdrawn.
      Exhibit D. Letter, AFPC/DPPPE, dated 7 Jan 03.
      Exhibit E. Letter, AFPC/DPPPWB, dated 8 Jan 03.
      Exhibit F. Letter, SAF/MRBR, dated 17 Jan 03.
      Exhibit G. Applicant’s Response, dated 23 Jan 03.




                       DAVID C. VAN GASBECK
                       Panel Chair