RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01974
            INDEX NUMBER:  111.02; 131.00
      XXXXXXXXXXXXX    COUNSEL:  Neal Connors

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Enlisted Performance Report (EPR) rendered on him for the  period
31 Jan 01 through 30 Jan 02 be voided and removed from his records.

His line number for promotion to master  sergeant  (MSgt)  for  cycle
02E7 be reinstated.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The  original  appeal  package  submitted  by  his  counsel  to   his
supporting military  personnel  flight  (MPF)  was  lost,  so  he  is
submitting the package to the AFBCMR.

The referral EPR written on the applicant  was  not  processed  in  a
timely manner, resulting in his being notified of his  selection  for
promotion although the referral EPR made him ineligible.

His rater originally wrote him a firewall “5” EPR, but  was  required
to rewrite it to include mention of a  past  incident  of  “purported
sexual harassment” of a female subordinate.

The EPR constitutes an error or injustice because the  incident  that
made it a referral occurred at a different squadron under a different
commander, under a different supervisor, during  a  different  rating
period.

The rating period on the EPR  begins  in  Jan  01,  but  should  have
started in Jul 01 at the earliest.  He was reassigned in Jul 01 as  a
permanent change of assignment and it was during the  earlier  period
that he received a non-punitive letter of reprimand (LOR),  which  he
was informed would not further adversely affect his career.

The Military Equal Opportunity (MEO) investigation was  completed  in
Jun 01 and he received a letter of reprimand in Jul 01.  It took  six
months for this unfavorable information to be placed in his  EPR  and
was ultimately prejudicial because of its impact on his selection for
promotion.

The EPR was in violation of AFI 36-2406 in that it did  not  document
unsatisfactory conduct within 120 days.  Further, it was improper for
the rater to document the alleged misconduct since  he  was  not  the
applicant’s supervisor during the period it occurred and also did not
have 60 days of supervision as required for referral reports.

The applicant’s complete submission, with attachments, is at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty on 12  Jan  84.   He  is  presently
serving on active duty in the grade of technical sergeant (TSgt).   A
resume of his last ten EPRs follows:

      Closeout Date                     Overall Rating

        2 Nov 94                        5
        1 Jul 95                        5
        1 Jun 96                        5
        1 Jun 97                        5
        1 Jun 98                        5
        1 Jun 99                        5
       30 Jan 00                        5
       30 Jan 01                        5
      *30 Jan 02                        4
       16 Jun 02                        5

* Contested referral report

The applicant was selected for promotion to MSgt  during  cycle  02E7
per Promotion Sequence Number 2612, which would have incremented on 1
Jan 03.   However,  the  referral  EPR  automatically  cancelled  his
promotion in accordance with AFI 36-2502.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPE recommends denial of the applicant’s request.  The LOR the
applicant received on 16 Jul 01  was  based  on  seven  substantiated
findings by the MEO office.  A couple of weeks  later  the  applicant
was apparently reassigned to another unit on base  (no  documentation
has been provided to indicate the exact date).  An annual report  was
rendered on 30 Jan 02, as required, and the LOR was documented in the
EPR by the rater in the new unit (causing the report to be referred).

The statement submitted by applicant’s counsel contains several flaws
in the interpretation of AFI 36-2406.  The applicant’s  previous  EPR
closed out 30 Jan 01.  Providing he had sufficient supervision at the
time he changed units, a change of reporting  official  report  would
have been required.  However, no documentation has been  provided  to
indicate the applicant had the required 120 days of  supervision  (or
60 days had the rating chain decided to render a referral  report  at
that time).   Applicant’s  counsel  states  “unfavorable  information
should perhaps not been included in  any  report  …”   However,  this
contradicts AFI 36-2406,  which  strongly  encourages  evaluators  to
comment on adverse actions such as Article 15s, LORs, etc.  They note
that the applicant himself quoted this same paragraph, but apparently
did not read it in its entirety, stopping  before  the  part  of  the
paragraph that clearly  includes  LORs  as  adverse  information  for
raters to consider.  His counsel is also  wrong  in  stating  that  a
report is due within 120 days to document unsatisfactory conduct  and
that it was improper for the applicant’s new rater  to  document  the
LOR.  AFI 36-2406 does not state that the report  must  be  completed
within 120 days, rather that there must be 120 days of supervision to
render a report (or 60 days in the case  of  a  referral).   Further,
many Air Force members have reports written on an annual basis  where
the rater at the beginning of the period is not the  one  who  writes
the report at  the  end.   Raters  have  the  responsibility  to  get
meaningful  information  from  the  ratee  and  as  many  sources  as
possible, to review any adverse information in the  ratee’s  Personal
Information File (PIF), and to  review  any  Unfavorable  Information
File (UIF) prior to preparing  the  report.   The  rater  would  have
actually been in violation of the AFI if he had  not  considered  the
LOR in his assessment of the applicant.

The humiliation the  applicant  states  he  experienced  because  the
report was not processed in a timely manner is also  not  grounds  to
void the report.

The complete evaluation, with attachments, is at Exhibit C.

AFPC/DPPPWB verifies that the referral  EPR  automatically  cancelled
the applicant’s promotion to MSgt in accordance with  applicable  Air
Force directives.  They defer to AFPC/DPPPEP’s recommendation to deny
the applicant’s request to void the report.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluations,  the  applicant  stated
that he has provided a copy of his appeal to the  Evaluation  Reports
Appeal Board (ERAB) that was lost to show  that  he  did  submit  his
appeal through the proper channels.  He also  provides  documents  to
verify when he was reassigned to a new unit.  The  applicant  further
provides extracts from AFI 36-2406 to verify that  he  had  read  the
entire paragraph pertinent to including  adverse  information  in  an
EPR.

The applicant indicates that the rater on the referral EPR wrote  him
an outstanding character reference.  He also  notes  that  the  rater
only had 180 days of supervision.  He asks what happened to the other
180 days of supervision.  He  also  states  that  his  EPR  does  not
correlate with the performance feedback he received during the period
  The applicant states that his commander that  issued  him  the  LOR
advised him that the incident would not affect his  military  career.
There was nothing said about writing a referral report.

The applicant’s complete submission, with attachments, 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.  Insufficient relevant evidence has been presented to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of  the
applicant's complete submission in judging the merits  of  the  case;
however, we agree with the opinions and recommendations  of  the  Air
Force offices of primary responsibility and adopt their rationale  as
the primary basis for our conclusion that the applicant has not  been
the victim of  an  error  or  injustice.   We  note  the  applicant’s
contention that his commander advised him that the LOR would not have
an adverse impact on his  career.   However,  the  copy  of  the  LOR
provided clearly indicates the commander’s intent to file the LOR  in
the applicant’s  unfavorable  information  file.   Given  the  normal
retention period of one-year, the  LOR  would  clearly  have  been  a
matter of record even during  the  period  the  applicant  states  he
should have been evaluated.  The applicant has provided  insufficient
evidence to support his contention that he  has  been  unfairly  held
accountable  for  his  misconduct.   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   issues   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 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 Docket Number  BC-2003-
01974 in Executive Session on 6 October 2003, under the provisions of
AFI 36-2603:

      Ms. Marilyn Thomas, Panel Chair
      Ms. Barbara R. Murray, Member
      Ms. Ann-Cecile McDermott, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 31 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPPE, dated 7 Jul 03.
    Exhibit D.  Memorandum, AFPC/DPPPWB, dated 15 Jul 03.
    Exhibit E.  Letter, SAF/MRBR, dated 15 Aug 03.
    Exhibit F.  Memorandum, Applicant, undated.




                                   MARILYN THOMAS
                                   Panel Chair