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AF | BCMR | CY2006 | BC-2006-01296
Original file (BC-2006-01296.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01296
            INDEX CODE:  111.05

      XXXXXXX    COUNSEL:  MS. HALEVI

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  22 OCT 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

She be provided supplemental promotion consideration for cycle 05E7 with  an
AF Form 910, Enlisted Performance  Report  closing  out  on  7 August  2004,
included in her records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The 7 August 2005 referral report is inaccurate and unfairly prejudicial  to
her career.  She does not feel her performance  over  the  entire  year  was
accurately reflected. She also believes she was denied  the  opportunity  to
test for promotion during cycle 05E7, due to  a  referral  report  that  was
never submitted.

In support of her request, the applicant provided a personal  statement,  AF
Form 910, Enlisted Performance  Report,  Referral  of  Enlisted  Performance
Report Memorandum, a copy  of  the  District  Court  of  the  United  States
District of South  Carolina  XXXXXXX  Division  Case  File  and  a  Personal
Information Printout.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air  Force  in  the  grade  of  airman
basic on 30 June 1992 for a term  of  four  years.   She  was  progressively
promoted to the grade of technical sergeant and  currently  serves  in  that
grade.

The applicant was indicted by a grand jury on two  counts.   Count  one  was
Fraud in Connection with Identification Information and count two  consisted
of Fraud in Connection with Unauthorized Access Devices.  On 8 August  2005,
the applicant pleaded guilty to count two of the indictment  and  count  one
was dismissed on the motion of the United  States.   She  was  sentenced  to
probation for a  term  of  five  years,  placed  on  home  confinement  with
electronic monitoring for eighteen months and ordered to pay restitution  in
the amount of $9,715.05.

On 31 January 2006, she received a referral  EPR,  closing-out  on  7 August
2005.  She appealed the report  on  the  basis  that  the  report  contained
inaccuracies, specifically that she pleaded guilty to identity  theft.   The
Evaluation Reports Appeals Board (ERAB) approved removal of the  report  and
she will receive supplemental promotion consideration for  cycle  06E7.   An
AF Form 77,  Letter  of  Evaluation  closing  out  on  7  August  2004,  was
completed on 31 May 2006 and added to her records.

Her EPR profile reflects the following:

      PERIOD ENDING    EVALUATION OF POTENTIAL

          27 Feb 94          5
          27 Feb 95          5
           7 Aug 95          4
           7 Aug 96          5
           7 Aug 97          5
           7 Aug 98          5
           7 Aug 99          5
           7 Aug 00          5
           7 Aug 01          5
           7 Aug 03          5
           7 Aug 04 (LOE)       No report available for
                                        administrative reasons

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPWB recommends denial.  According to DPPP  the  first  time  the  AF
Form 77 closing-out on 7 August 2004, would  have  been  considered  in  the
promotion process was 05E7.  However, the promotion file  reflects  she  was
non-recommended for promotion by her commander and was therefore  ineligible
IAW AFI 36-2502, Table 1.1, Rule 9.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant‘s  counsel
on 16 June 2006, for review and comment within 30 days.  As  of  this  date,
no response has been received by this office.

_________________________________________________________________

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.  The  applicant  originally  requested  the
referral EPR, closing-out on 7 August 2005  be  removed  from  her  records.
However, the ERAB has approved  removal  of  the  report  and  she  will  be
provided supplemental promotion consideration for  cycle  06E7.   Therefore,
the only issue before this Board is her request for  supplemental  promotion
consideration for cycle 05E7 with an EPR, closing-out on 7  August  2004,  a
matter  of  record.   The  applicant  contends  she   should   be   provided
supplemental promotion consideration for cycle 05E7 because she  was  denied
an opportunity to test for promotion based on a referral  report  which  she
never received.  However, after thoroughly reviewing the evidence of  record
and the evidence submitted by the applicant, we are not  persuaded  she  has
established an error or an injustice in her records.  In  this  respect,  we
note that during the period in question, the applicant was  convicted  of  a
serious  offense,  i.e.,  Fraud  in  Connection  with  Unauthorized   Access
Devices, and was not recommended for promotion  during  cycle  05E7  by  her
commander.  As such, she was ineligible to test for promotion  during  cycle
05E7.  Her records contain an  AF  Form  77,  Letter  of  Evaluation  (LOE),
rendered for the period 8 August 2003 through  7  August  2004,  documenting
that she was not  rated  for  the  above  period  and  that  no  report  was
available for administrative reasons.  Other than her  own  assertions,  she
provides no evidence the LOE is in  error  or  unjust.   Therefore,  in  the
absence of evidence  to  the  contrary,  we  find  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.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of an 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  BC-2006-
01296 in Executive Session on 2 August 2006 under the provisions of AFI  36-
2603:

                 Mr. Thomas S. Markiewicz, Panel Chair
                 Ms. Renee M. Collier, Member
                 Mr. John E. B. Smith, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 19 Apr 06, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPPWB, dated 5 Jun 06.
   Exhibit D.  Letter, SAF/MRBR, dated 16 Jun 2006.





                                   THOMAS S. MARKIEWICZ
                                   Chair

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