RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2009-00033
		COUNSEL:  NONE
		HEARING DESIRED: NOT INDICATED

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APPLICANT REQUESTS THAT:

1. The AF From 910, Airman Performance Report (APR), rendered for the period 13 September 1986 to 3 June 1987, and the AF Form 77, Supplemental Evaluation Sheet, dated 26 August 1987, be declared void and removed from his record.

2. His reenlistment status on his AF IMT 418, Selective Reenlistment Consideration, be changed from ineligible to eligible; and his reentry (RE) code on the DD Form 214, Certificate of Release or Discharge From Active Duty be changed from “2X” in order to allow him to be eligible to reenlist.
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APPLICANT CONTENDS THAT:

The reports rendered during the period in question were discriminatory and contained adverse comments. These documents prevented him from serving in the Air Force.

In support of his application, the applicant provides a copy of his AF Form 418, Selective Reenlistment/Noncommissioned Officer Status Consideration, a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, and copies of his APRs and AF Form 77. 

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 12 June 1979 and was progressively promoted to the grade of staff sergeant.

On 16 June 1987, the applicant received a referral APR with an overall rating of “4.” At the time the APR was rendered, the applicant did not apply under the provisions of AFR 31-11, Correction of Airman and Officer Evaluation Reports to have the contested APR removed from his records.

On 4 January 1988, the rater advised the commander he intended to recommend non-selection of the applicant for reenlistment.  On   4 January 1988, his rater served him the AF Form 418 recommending his nonselection for reenlistment served him with the AF Form 418.  The commander concurred.  The applicant did not appeal the decision.

On 1 March 1988, the applicant was discharged with an honorable discharge with an RE code of “2X” – First term, second or career airman considered but not selected for reenlistment under the SRP. He served 5 years, 1 month and 1 day of total active military service.

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AIR FORCE EVALUATION:

AFPC/DPSID recommends denial of the request to void the APR and AF Form 77 and states the applicant has failed to substantiate the report was unjust or inaccurate. The applicant contends that none of the evaluators were members of the Air Force. In accordance with AFR 39-62, Noncommissioned Officer and Airman Performance Reports, when none of the evaluators are Air Force personnel, an Air Force advisor must sign the report. In the left hand margin of the contested APR, the report was reviewed and signed by an Air Force advisor; therefore, this claim is without merit. 

The applicant contends that his rebuttal, which was approximately seven pages, is missing. In Section VI, the first indorser states he carefully considered the applicant's comments, substantiating that a rebuttal existed; however, the specifics of the rebuttal are unclear, and a search of the applicant's records was unsuccessful in locating any type of rebuttal. Unfortunately, for the applicant however, the missing rebuttal does not make the report inaccurate. If the applicant can produce a copy of the original rebuttal, they will place the rebuttal in the applicant's record.

The complete AFPC/DPSID evaluation is at Exhibit C.

AFPC/DPSOA recommends denial of the request for removal of the EPR and states there is no evidence of error or injustice in his records; nor did the applicant submit any evidence to support a change. 

AFI 35-2602, Reenlistment in the USAF, states that commanders have selective reenlistment selection or non-selection authority. The Selective Reenlistment Program (SRP) considers the members performance ratings, Unfavorable Information File (UIF) from any substantiated source, the airman's willingness to comply with Air Force standards and/or the airman's ability to meet required training and duty performance levels. 

The complete AFPC/DPSOA evaluation is at Exhibit D.

AFPC/DPSOS recommends denial of the request to change the applicant's RE code and states the applicant did not submit any evidence or identify any errors or injustices in the processing of his discharge. Based on the documentation in the applicant personnel records, the date of separation was appropriately administered and within the discretion of the discharge authority. 

The applicant's record reflects he was selected for early separation under the Date of Separation (DOS) Rollback Program. The Air Force DOS Rollback Program accelerated the DOS of first term airmen who were not selected for reenlistment by their commander.

The complete AFPC/DPSOS evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant’s counsel on 8 May 2009 for review and response.  As of this date, no response has been received by this office.

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FINDINGS AND CONCLUSIONS OF THE BOARD

1.	The application was not filed within three years after the alleged error or injustice was discovered, or reasonably could have been discovered, as required by Section 1552, Title 10, United States Code (10 USC 1552), and Air Force Instruction 36-2603.  

2.  Although we find the application untimely, that conclusion does not end our consideration of the request.  The governing statute provides that the Correction Board “…may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice.” (10 USC 1552b).  We believe the intent of this provision of the statute is to provide the Board with the flexibility to consider all the facts and circumstances of a case regardless of the time that has passed since the incident giving rise to the appeal.  The statute permits us to consider the reasons for the delay provided by the applicant and, if those reasons are plausible, excuse the failure to file in a timely manner and consider the case on its merits.  Even if the reasons for the delay in filing are insufficient to excuse the delay, we may examine the facts and circumstances of the case and, if substantial evidence of error or injustice exists, waive the three year time limit and correct the error or injustice.  Thus, we normally assert the statute and reject an application for timeliness only when we find no plausible reason for the delay and no substantial evidence of error or injustice.
3.  We find no basis to waive the three year time limit in this case.  Applicant has not provided a reason for the delay sufficiently plausible to persuade us that the statutory time limit should be waived.  More importantly, we have carefully examined the available evidence contained in the case file and we do not find substantial evidence of error or injustice that would otherwise warrant excusal of the delay.  Given this conclusion, it is a fair assumption that we would deny the case due to insufficient evidence even if we were to decide the case on its merits.  We choose not to decide the case on its merits, however, because it is untimely and we are not persuaded – either by a plausible reason for the delay or substantial evidence of error or injustice – that it is in the interest of justice to excuse applicant’s failure to file in a timely manner.

4.  Accordingly, we conclude the application should be rejected as untimely.

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DECISION OF THE BOARD:

The application was not timely filed and it would not be in the interest of justice to waive the untimeliness.  It is the decision of the Board, therefore, to reject the application as untimely.

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The following members of the Board considered Docket Number BC-2009-00033 in Executive Session on 9 June 2009, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to Docket Number BC-2009-00033 was considered:

	Exhibit A.	DD Form 149, dated 29 Dec 08, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFPC/DPSID, dated 13 Feb 09.
	Exhibit D.	Letter, AFPC/DPSOA, dated 25 Feb 09
	Exhibit E.	Letter, AFPC/DPSOS, dated 8 Apr 09.
	Exhibit D.	Letter, SAF/MRBR, dated 8 May 09.
	



	
	Panel Chair








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