RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2006-01530
                                        INDEX CODE:  111.02
  JAMES F. BANKS                  COUNSEL:  NONE

                                        HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  20 November 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Enlisted Performance Report (EPR) rendered for the period  12 July  2002
through 4 May 2003 be voided and removed from  his  records.   In  addition,
the following administrative  corrections  be  made  to  his  DD  Form  214,
Certificate of Release or Discharge from  Active  Duty,  and  he  be  issued
original copies:

       1. Correct item #5 to reflect 19630926
       2. Correct item #7a to reflect Portland, ME
       3. Correct item #7b to reflect Milton NH
       4. Correct item #12d to reflect 00y00m00d
       5. Correct item #12h to reflect 2004 May 19
       6. Correct item #13 to reflect Meritorious Service  Medal  with  Two
          Oak Leaf Clusters (OLC), Joint Service  Commendation  Medal  with
          Two OLC, Air Force Commendation Medal with  One  OLC,  Air  Force
          Achievement Medal  with  One  OLC  (AFAM/1OLC),  Air  Force  Good
          Conduct Medal with Six OLC, Air  Force  Longevity  Service  Award
          with Four OLC, Air Force Overseas Service-Long Tour  Ribbon  with
          One OLC, Air Force Overseas Service-Short Tour  Ribbon  with  One
          OLC, and add NATO Medal-Croatia
       7. Correct item #14 to add Administrative Staff Support  Specialist,
          4 wks, Sep 81; NCO Preparatory Course, 4 wks, Aug 85; and  Senior
          NCO Academy, 6 weeks, Jun 02
       8. Correct item #18 to correct Continuous Honorable Active  Military
          Service from 13 Jul 81 to 29 Jan 98
       9. Correct item #19a to reflect:  c/o George J. Banks
                                             3504 Casey Jones Drive
                                             Valrico FL  33594


      10. Correct item #19b to reflect:  Renee M. Banks
                                             3202 South Tyler Street
                                             Apartment C-4
                                             Tacoma WA 98409


The applicant also feels he should have been forwarded his DD Form  214  for
signature while incarcerated and that the official authorized  to  sign  his
DD Form 214 must be in the grade of master sergeant (E-7) or higher.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His rater included comments on his referral  EPR  regarding  pending  court-
martial charges, and based the ratings of the EPR on those pending  charges.
 The inclusion of the comments was  prejudicial  since  they  had  not  been
finalized and there was no way  he  could  defend  himself  within  the  10-
calendar day response period without it  being  detrimental  to  his  court-
martial case.  The rater should have either requested the close-out date  of
the EPR be extended  until  the  pending  court-martial  was  completed,  or
allowed his subsequent rater  to  include  the  comments  in  the  next  EPR
period.  He made an initial  request  to  remove  the  contested  report  on
1 February 2005 through the United States Disciplinary Barracks  (USDB)  Air
Force Liaison Office at Fort Leavenworth, Kansas.  Follow-up  requests  were
made through the same office on  4  August  2005,  6  October  2005,  and  6
January 2006 with no success.  On 19 January 2006, AFPC/DPPAE  informed  him
that his request had never been submitted.

The beginning date of supervision with his rater who wrote the referral  EPR
began on 22 October 2002.  On 12  February  2003,  the  AFOSI  initiated  an
investigation of charges against him.  On 1 March 2003, his  rater  relieved
him of his position and placed him under  control  of  another  organization
where he was officially assigned on the  manning  document.   Therefore,  an
EPR should have been completed at that time for  the  period  12  July  2002
through 28 February 2003 with 130 days of supervision.

In regard to the errors on his DD Form 214, a majority of the  errors  could
have been avoided had the  personnel  technician  complied  with  Air  Force
Instruction (AFI) 36-3202, paragraph 5.2, by preparing a DD Form  214WS  for
his review prior to preparing his DD Form 214.  He  was  issued  photocopies
of his DD Form 214 by the USDB Liaison Office, instead  of  original  copies
as per AFI 36-3202, paragraph 10.1.  He made several attempts  to  have  the
numerous errors on his DD  Form  214  corrected;  however,  he  has  yet  to
receive a corrected DD Form 214.

In support of his request, the applicant  submits  copies  of  his  referral
EPR; rebuttal to his referral EPR; DD Form 214; correspondence  relating  to
his attempts to correct/remove his referral EPR; correspondence relating  to
his attempts to have his DD  Form  214  corrected;  and  military  personnel
documentation to support requested changes to his DD Form 214.

The applicant’s complete submissions (two DD Forms 149 dated 4 May 2006  and
8 May 2006), with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 13 July 1981, the applicant enlisted in the Regular Air Force at the  age
of 17.  He  was  progressively  promoted  to  the  grade  of  senior  master
sergeant (E-8).

On 9 May 2003, the applicant received notification of  a  referral  EPR  for
the period 12 July 2002 through 4  May  2003.   The  applicant  acknowledged
receipt and submitted a written rebuttal on 19 May 2003.

General Court-Martial Order Number 5, dated 19 November 2003, indicates  the
applicant pled guilty to one specification  of  a  charge  in  violation  of
Article  120  Uniformed  Code  of  Military   Justice   (UCMJ)   and   three
specifications of a charge in violation of Article 134 UCMJ.  The  applicant
was found guilty of all  specifications  and  sentenced  to  a  dishonorable
discharge, confinement for 16 years, and reduction to the  grade  of  airman
basic (E-1).  The  sentence  was  approved  for  a  dishonorable  discharge,
confinement for 10 years and reduction to the grade of airman basic with  an
effective date of 19 May 2003.

On 12 November 2004, the Secretary of the Air Force denied  the  applicant’s
request  for  retirement  consideration.   The  applicant  was  dishonorably
discharged effective 15 September 2005.  He served 22 years, 11 months,  and
4 days on active duty.  The applicant is currently serving his  sentence  at
the USDB, Fort Leavenworth, Kansas.

On 4 October 2006, AFPC/DPPRY, corrected the applicant’s DD  Form  214  with
the requested changes except for item #7a (correction was made  as  Portland
MA instead of Portland ME) and item #19a (overlooked).

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPEP recommends denial of the applicant’s request  to  void  his  EPR
closing on 4 May 2003.  DPPP states the EPR in question was made a  referral
report for the comment: “showed  lack  of  judgment  by  committing  serious
offense of carnal knowledge with a child under 12.”  The applicant  believes
since  the  comment  was  still  under  investigation,  the  rater  was  not
authorized to include it  in  the  report.   AFI  36-2406,  paragraph  3.7.7
states, “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.   When  it  is
determined that such conduct  is  appropriate  for  comment,  refer  to  the
underlying performance, behavior or misconduct itself and not merely to  the
fact that the conduct may have resulted  in  a  punitive  or  administrative
action taken against the member, such as letter of  reprimand,  Article  15,
court-martial conviction, etc.”  The AFI does  not  prohibit  comments  that
are under investigation.  It  encourages  evaluators  to  be  cautious  when
making the comment.  The comment made on the applicant’s report  is  factual
based on the member’s misconduct and not based on  the  investigation  which
led to the court-martial.  Therefore, the EPR is  accurate  as  directed  by
AFI 36-2406.

DPPPEP states the applicant also contends his report should have  closed-out
on 28 February 2003 because he was removed from his position and  reassigned
on 1 March 2003.  Being temporarily assigned to a  different  squadron  does
not mean a change of rater was accomplished.  In fact, AFI 36-2406 does  not
mandate the ratee to work in the same vicinity as the rater.  The  applicant
does not provide supporting documentation to prove his rater was changed  to
another person due to the move.  Based  on  the  fact  the  EPR  states  the
member was temporarily reassigned, the organization block on  the  EPR  must
be corrected to include the applicant’s temporary duty location.

It is DPPEP’s  opinion  the  applicant  has  failed  to  provide  supporting
documents to prove his  report  is  inaccurate.   An  evaluation  report  is
considered to represent the rating chain’s best judgment at the time  it  is
rendered.  Once a report is accepted for file, only strong evidence  to  the
contrary warrants correction or removal from an  individual’s  record.   The
burden of proof is on the applicant.  The applicant  has  not  substantiated
the contested report was not rendered in good faith by all evaluators  based
on the knowledge available at  the  time.   If  the  decision  is  to  grant
relief, DPPPEP recommends the Board direct the organization  block  (section
I, bock 5) be changed to read, “Air Force Flight Test  Center  (AFMC),  with
duties at 412th Operations Support Squadron, Edwards AFB CA.”

The AFPC/DPPPEP evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

His referral EPR closed out  on  4  May  2003  while  the  AFOSI  Report  of
Investigation was completed on 6 May 2003 and not presented to  his  defense
counsel until weeks later.  On 4 May 2003, the comment made by his rater  on
his EPR was an allegation, not fact.  Any statements made by  him  to  rebut
the EPR would have been used  by  the  government  trial  counsel  in  their
prosecution of the case.   His  rater  documented  his  guilt  three  months
before his court-martial.   His  constitutional  right  of  “innocent  until
proven guilty” was ignored  in  favor  of  expediency.   There  was  nothing
prohibiting his rater  from  leaving  this  issue  for  his  next  rater  to
document.  Instead, he was placed in a position of providing statements  and
evidence  in  his  defense  prior  to  receipt  of  the  AFOSI   Report   of
Investigation or his court–martial.

The applicant’s rebuttal, with attachments, is at Exhibit E.

_________________________________________________________________

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 an injustice.  After a  thorough  review  of  the  evidence  of
record, we are persuaded that relief is warranted in this case.   The  Board
believes the contested comment made in the applicant’s EPR  is  worded  such
that it already convicts the applicant of the crime in which  there  was  an
ongoing investigation.  We feel this comment is  inappropriate  due  to  the
fact the investigation was not completed at the time  the  EPR  closed  out.
Therefore, in an effort to offset any possibility of  an  injustice  to  the
applicant, we recommend the records be corrected  to  the  extent  indicated
below.

4.  The Board did not address the applicant’s requests  for  corrections  to
his DD Form 214 as we note AFPC/DPPRY made  the  administrative  corrections
requested by the applicant.  However, the Board notes three items  were  not
corrected appropriately due to error or oversight.  DPPRY stated they  would
make the necessary corrections to items #7a (Portland, ME  versus  Portland,
MA), #13 (AFAM/1OLC versus AFAM/2OLC), and #19a (c/o George J.  Banks,  3504
Casey Jones Drive, Valrico  FL  33594  versus  1301  N  Warehouse  Road,  Ft
Leavenworth KS 66027) as noted  above  once  they  receive  the  applicant’s
records.  The Board also notes the applicant’s signature is not required  on
the corrected DD Form 214 and the official authorized to sign  the  DD  Form
214 may be a lesser grade than master sergeant (E-7) as governed by AFI  36-
3202, Table 4, Rule 54.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to  show  that  the  Enlisted  Performance  Report
(MSGT thru CMSGT)), AF IMT  911,  rendered  for  the  period  12  July  2002
through 4 May 2003 be, and hereby is, declared void  and  removed  from  his
records.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 7 February 2007, under the provisions of AFI 36-2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Ms. Jan Mulligan, Member
                 Ms. Josephine L. Davis, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence for AFBCMR Docket Number BC-2006-01530 was considered:

      Exhibit A.  DD Forms 149, dtd 4 May 06 & 8 May 06 , w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/ DPPPEP, dtd 29 Jul 06.
      Exhibit D.  Letter, SAF/MRBR, dtd 13 Oct 06.
      Exhibit E.  Applicant’s Rebuttal, dtd 24 Oct 06, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Chair

                       AIR FORCE BOARD FOR CORRECTION
                             OF MILITARY RECORDS

                   CASE TRANSMITTAL / COORDINATION RECORD


IN THE MATTER OF:                             DOCKET NO:

JAMES F. BANKS                                BC-2006-01530


ROUTE IN TURN    INITIALS  DATE


1.  CHIEF EXAMINER     ________  ________
    (Coord/Signature)

2.  EXECUTIVE DIRECTOR ________  ________
    (Coordination)

3.  EXAMINER (FOR DISPATCH)  ________  ________

4.  Mr. Thomas S. Markiewicz ________  ________
    CHAIR
    (Signature on Proceedings)

5.  SAF/MRB (Approval) ________  ________

6.  AFBCMR (Processing)




                                 WILLIAM E. BRAKE
                                 Examiner
                                 Air Force Board for Correction
                                 of Military Records




AFBCMR BC-2006-01530




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 JAMES F. BANKS, 001-54-5981, be corrected to show that the
Enlisted Performance Report (MSGT thru CMSGT)), AF IMT 911, rendered for
the period 12 July 2002 through 4 May 2003 be, and hereby is, declared void
and removed from his records.





  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency


AFBCMR
1535 Command Drive
EE Wing, 3rd Floor
Andrews AFB, MD 20762-7002

Mr. James F. Banks
Box 77560
1300 N. Warehouse Road
Ft. Leavenworth, KS 66027

Dear Mr. Banks

      Your application to the Air Force Board for Correction of Military
Records, AFBCMR Docket Number BC-2006-01530, has been finalized.

      The Board determined that the military records should be corrected as
set forth in the attached copy of a Memorandum for the Chief of Staff,
United States Air Force.  The office responsible for making the correction
will inform you when your records have been changed.

      After correction, the records will be reviewed to determine if you
are entitled to any monetary benefits as a result of the correction of
records.  This determination is made by the Defense Finance and Accounting
Service (DFAS-DE), Denver, Colorado, and involves the assembly and careful
checking of finance records.  It may also be necessary for the DFAS-DE to
communicate directly with you to obtain additional information to ensure
the proper settlement of your claim.   Because of the number and complexity
of claims workload, you should expect some delay.  We assure you, however,
that every effort will be made to conclude this matter at the earliest
practical date.

                                             Sincerely




                                             ALGIE WALKER, JR.
                                             Chief Examiner
                                             Air Force Board for
Correction
                                             of Military Records

Attachments:
1.  Record of Proceedings
2.  Copy of Directive

cc:
DFAS-DE