RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-02149
                                             INDEX CODE:  111.02, 111.05
      XXXXXXXXXXXX                      COUNSEL:  NONE

                                             HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His Enlisted Performance  Report  (EPR)  for  the  period  6  November  2005
through 5 November 2006 be voided or upgraded.

________________________________________________________________

APPLICANT CONTENDS THAT:

His medical conditions prohibited him from receiving a better EPR,  and  his
command used these conditions against him.

In support of his appeal, he has  submitted  copies  of  numerous  documents
pertaining to derogatory incidents, including actions  taken  regarding  his
Court-Martial, Article 15, Life Skills Medical  Evaluation,  Control  Roster
Action, Letters  of  Reprimand  (LORs),  a  Letter  of  Counseling,  and  an
unsubstantiated  Inspector  General  Complaint,  character  references  from
former supervisors, peers, friends, customers,  and  a  family  member,  his
commander’s recommendation to the Medical  Evaluation  Board  (MEB),  and  a
Narrative Summary and other documents relating to an MEB in June 2007.

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant began his military service in November 1989, and is  currently
serving on active duty with the Regular Air Force in the grade of  technical
sergeant (E-6).  He was rendered a referral EPR for  the  period  6 November
2005 through 5 November 2006.   He  filed  an  appeal  with  the  Evaluation
Reports Appeals Board (ERAB) which was denied because the evidence  provided
did not show the report was unjust or inaccurate as written.   A  review  of
his military records indicates the following derogatory incidents, three  of
which occurred during the period of the contested EPR:

        a. LOR, dated 19 April 2006, for failing to take appropriate  action
           on an FY 2006 NCORP  Phase  II  missing  documents  tasking,  and
           failing to  provide  guidance  and  notification  to  a  deployed
           Personnel Support of Contingency Operations (PERSCO) team.

        b. LOR, dated 18 July 2006, for failing  to  follow  directions  and
           dereliction of duty.

        c. Record of Individual Counseling (RIC),  dated  26  October  2006,
           that acknowledged his recent significant improvement  while  also
           pointing out that his duty performance had been marginal for  the
           majority of the reporting period.

        d. LOR, dated 25 January 2007,  for  deficiencies  found  during  an
           audit of his work that reflected his failure to  properly  review
           and update the Unit Personnel Record  Group  for  newly  arriving
           personnel.

        e. Summary Court-Martial conviction on 25  April  2007  for,  on  or
           about 21  March  2007,  leaving  his  appointed  place  of  duty.
           Punishment consisted of a reprimand and forfeiture of $1,000 from
           one month’s pay.

The applicant’s medical records  indicate  that  an  MEB  in  December  2006
returned him to active duty.  He was evaluated  for  depression  by  another
MEB in June 2007.  The MEB noted  marked  military  impairment,  and  stated
that  cognitive  impairments  have  affected  his  performance  reports,   a
combination  of  cognitive  deficits,  personality  traits,  and   excessive
anxiety have contributed  to  his  difficulties  communicating  and  working
effectively with co-workers and supervisors, and with his evidenced  limited
tolerance to stressful situations and behaviors that occur as  a  result  of
perceived  stress,  deployment  was  not  recommended  then,   or   in   the
foreseeable  future.   The  MEB  recommended  he  be   presented   for   MEB
determination  to  determine  eligibility  for  continued  worldwide   duty,
continued psychiatric treatment of  anxiety  and  depression,  psychological
treatment with therapy, and re-evaluation for possible continued decline  in
cognitive function.  Upon conclusion of the MEB, he was returned to work  by
medical authorities.

An Informal Physical Evaluation  Board  (IPEB)  finding,  dated  7 September
2007, found the applicant unfit because of a physical disability  which  was
incurred  in  the  line  of  duty.   The  IPEB’s  unfitting  diagnosis   was
Depressive  Disorder  associated  with  Cognitive   Disorder   and   Anxiety
Disorder.  The IPEB finding went on to state  that  his  medical  condition,
which is not likely to change over the  next  several  years,  prevents  him
from reasonably performing  the  duties  of  his  office,  grade,  rank,  or
rating.   The  neurologist  opined  that  his  cognitive   dysfunction   was
consistent with his known history of  depression  and  sleep  disorder,  and
recommended no further neurological work-up.  The IPEB found him  unfit  and
recommended  permanent  retirement  with  a  disability  rating  of  30%  in
accordance with Department of Defense and Veterans  Administration  Schedule
for Rating Disabilities guidelines.

Applicant’s Enlisted Performance Report (EPR) profile since 1999 follows:

            PERIOD ENDING                    EVALUATION

             17 Mar 1999                           4
             16 May 2000                           4
             16 May 2001                           5
             30 Sep 2001                           5
             31 May 2002                           5 (firewall)
             31 Dec 2002                           5
             31 Dec 2003                           5
            31 Dec 2004                            5
              5 Nov 2005                           5 (firewall)
      *       5 Nov 2006                           3 (referral)



*  Contested Report

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPEP recommends denial as the report is not inaccurate or  unjust  as
written, and the evidence does not substantiate  that  the  evaluators  used
his medical condition against him.  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 removal or upgrade of the report.  The burden of proof  is  on  the
applicant and the evidence does not substantiate his  contention;  in  fact,
the  evidence  shows  that  his  evaluators  were   actually   generous   in
recommending he be considered for promotion, considering  the  incidents  of
substandard performance.

Documents provided by  the  applicant  pertaining  to  derogatory  incidents
regarding his Court-Martial, Article  15,  Life  Skill  Medical  Evaluation,
Control Roster Action, and an unsubstantiated Inspector  General  Complaint,
are not relevant since all of it happened after the close-out  date  of  the
EPR.

The  character  references  from   former   supervisors,   peers,   friends,
customers, and a family member lack credibility because  none  of  them  had
first-hand knowledge of his duty performance for  the  time  period  of  the
contested report.   The  one  character  reference  he  submitted  with  his
original ERAB case also lacks creditability because she only  began  working
with him approximately two weeks before the EPR closed-out.

The applicant contends the evaluators used  his  medical  condition  against
him; however, the evidence shows that the commander made his decision  based
on  competent  medical  authority  and  the  applicant’s  substandard   duty
performance.   He  received  two  LORs  for   continued   substandard   duty
performance, not because he could not fulfill  his  wartime  duties  or  his
inability to recall information.  Additionally,  he  is  using  his  medical
condition as an excuse for  his  poor  duty  performance.   Whenever  he  is
counseled on duty performance, he enters  the  medical  condition  into  the
picture.   It  is  noted  that  his  duty  performance  seemed  to   improve
approximately one month before the EPR closed-out;  however,  the  reporting
period was for the entire year, not just the last month, and the  evaluators
recognized that.

Although he contends that his evaluators used his medical condition  against
him, he alleged all disciplinary action  was  due  to  a  sexual  harassment
complaint he made  against  his  rater  in  his  application  to  the  ERAB.
However, he provides no evidence that such a complaint was ever made.

The AFPC/DPPPEP evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On  13 August  2007,  the   applicant   requested   that   his   appeal   be
administratively closed, and his case  was  administratively  closed  on  29
August 2007.

Applicant re-opened  his  appeal  on  30  October  2007,  stating  that  his
perceived duty performance improved approximately one  month  prior  to  the
EPR close-out date and this would  be  attributed  to  when  his  medication
started, which was in September/October 2006.

Administrative actions were not taken against him from December  2005  (date
arrived) through March 2006.  As soon as they found  out  that  he  filed  a
sexual harassment complaint and it  was  substantiated,  things  immediately
changed for the worse.  He began to be treated as an airman, and was all  of
a sudden not trusted.  He was on their radar, and no matter  what  it  took,
they were going to make sure it ruined his career.   The  minutest  mistakes
were magnified and he was unable to  focus/concentrate,  knowing  that  they
were out to get him.  They have succeeded in ruining his career as  he  lost
his line number to master sergeant due to the EPR, and he  has  had  several
administrative actions taken against him, to include an Article 15 which  he
turned down and took to a summary court-martial which, in his eyes, he won.

He asks that an objective review be given to  his  appeal  and  that  it  be
viewed as though  the  Board  was  in  his  shoes.   He  feels  the  medical
summaries and narrative, along with all the conditions  with  which  he  has
been diagnosed, support and show a  17-year  technical  sergeant  not  being
able to function.

The applicant’s complete response, with attachments, is at Exhibit G.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The  BCMR  Medical  Consultant  recommends  no  change  in  the  applicant’s
performance  records  as  he  cannot  establish  a  causal   or   mitigating
relationship between his medical condition and  the  adverse  actions  taken
against him.

A likely scenario is  that  there  was  an  interrelationship  between  both
factors, as the applicant entered a vicious cycle of poor  duty  performance
followed by disciplinary action which likely escalated his  depressed  mood,
but was followed again by a repeat of substandard duty  performance.   Thus,
it would be reasonable to conclude that  his  substandard  duty  performance
played a key role in the evolution of  his  depressive  disorder.   However,
the preponderance  of  evidence  shows  that  his  depressive  disorder  and
associated cognitive disorder and anxiety disorder were in  direct  response
to  the  adverse  actions  taken  against  him  for  his  substandard   duty
performance, and not the reverse.

Although there are circumstances in  which  a  medical  condition,  such  as
Bipolar Disorder, may  be  the  root  cause  of  a  particular  disciplinary
infraction at a given time, the applicant’s  response  to  the  disciplinary
actions he  received  appears  to  have  contributed  significantly  to  the
development of his clinical illness, not  the  reverse.   Although  reprisal
against an employee for submitting a complaint  or  inspector  general  (IG)
inquiry is strictly prohibited, there  is  no  evidence  that  substantiates
that an injustice was committed by the applicant’s supervisors.  A  HQ  AFMC
IG report, dated 22 March 2007, indicates the  applicant’s  complaints  “did
not  meet  the  requirements  for  investigation”,  a   finding   reportedly
concurred with by the DoD/Inspector General.

The BCMR Medical Consultant’s complete evaluation is at Exhibit H.

________________________________________________________________

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION

A complete copy of the BCMR Medical Consultant evaluation was  forwarded  to
the applicant on 28 December 2007, for review and comment, within  30  days.
However, 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.   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  basis  for  our  conclusion
that the applicant has not  been  the  victim  of  an  error  or  injustice.
Although he contends that his evaluators used his medical condition  against
him, he has provided no evidence to substantiate  this  claim  or  that  the
performance  report  he  asks  be   voided   is   inaccurate   as   written.
Additionally, the  preponderance  of  evidence  appears  to  show  that  his
response to the  disciplinary  actions  he  received  for  substandard  duty
performance contributed significantly to the  development  of  his  clinical
illness, and not the reverse as he contends.  Therefore, in the  absence  of
evidence to the contrary, we find no compelling basis to recommend  granting
the relief sought in this application.

________________________________________________________________

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-2007-02149
in Executive Session on 13 March 2008, under the provisions of AFI 36-2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Ms. Karen A. Holloman, Member
                       Ms. Josephine L. Davis, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 31 May 07, w/atchs.
    Exhibit B.  Applicant's Available Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPEP, dated 26 Jul 07.
    Exhibit D.  Letter, SAF/MRBR, dated 3 Aug 07.
    Exhibit E.  Letter, Applicant, dated 13 Aug 07.

                                                              BC-2007-02149


    Exhibit F.  Letter, AFBCMR, dated 29 Aug 07.
    Exhibit G.  Letter, Applicant, dated 30 Oct 07, w/atchs.
    Exhibit H.  Letter, BCMR Medical Consultant, dated
                18 Dec 07.
    Exhibit I.  Letter, SAF/MRBR, dated 28 Dec 07.




                                   THOMAS S. MARKIEWICZ
                                   Chair