RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-03284
            INDEX CODE:  111.05
            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His AF Form 910, Enlisted Performance Report (EPR) (AB thru TSgt),  rendered
for the period of 15 Feb 07 through 14 Feb 08 be declared void  and  removed
from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He initially received an overall rating of “2” for  this  reporting  period;
however, after he submitted a rebuttal memo, the report  was  changed  to  a
referral  report  with  an  overall  “3”  rating.   He  was  not  given  the
opportunity to refute the “3” rating or refuse to sign the report before  it
became a matter of record.

He requested help from his local Inspector General (IG)  office,  his  chain
of command and other offices of responsibility on  procedures  to  have  the
report removed.  He was referred back to his squadron chain of command,  the
IG, his Congressman, and other offices but was told the matter  was  outside
their purview.

One  discrepancy  which  warrants  removal  of  the  EPR  is  the   referral
memorandum was written for the initial “2” rating  he  received  and  should
have been reaccomplished.

In support of his request, the applicant  submits  his  personal  statement,
copies of the referral  EPR  memorandum,  the  referral  EPR,  his  rebuttal
statement, the initial referral EPR, an award nomination, a  letter  to  his
congressman, his student  training  report,  a  memorandum  from  his  group
superintendent, a statement  of  suspect/witness  complaint,  an  evaluation
appeals form, and a letter from his commander.

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

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from  the  Military  Personnel  Data  System  (MilPDS)
indicates the applicant is currently serving in the grade of staff  sergeant
having assumed that grade effective and with a date of rank of 1 Mar 04.

The following is a resume of his overall EPR ratings:

Close Out Date   Overall Rating

  3 Jul 01       5
 15 Feb 02       Letter of Evaluation
 15 Feb 03       5
 15 Feb 04       5
 15 Feb 05       5
 14 Feb 06       5
 14 Feb 07       5
+14 Feb 08       3
 28 Dec 08       5
 17 Jul 09       5

+Contested Report

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibit B.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPSIDEP recommends denial.  DPSIDEP states the applicant  filed  two
appeals through the Evaluation Reports Appeal Board (ERAB) and both  appeals
were denied.

DPSIDEP  notes  paragraph  3.9.11  of  AFI  36-2406,  Officer  and  Enlisted
Evaluation Systems, states that “if, after the report has been  referred  to
the ratee, any corrections made to the  report  which  add  information,  or
change the content and/or the meaning, the ratee  must  again  be  given  an
opportunity to respond to the  new  information  presented  on  the  current
version of the report.”  The applicant  is  misinterpreting  the  intent  of
this paragraph as there  was  no  new  derogatory  information  he  did  not
already rebut.

DPSIDEP states based on the applicant’s rebuttal, the EPR was upgraded  from
what was originally presented to him.  Since there were  no  new  additional
referral remarks added and no additional ratings  downgraded,  the  EPR  was
not required to be referred again.  The one  referral  rating  and  the  two
referral remarks that  remained  were  in  the  original  referral  and  the
applicant was given the opportunity to rebut these  items.   DPSIDEP  opines
the rebuttal process worked as intended.

The complete DPSIDEP evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant  notes  an  internal  investigation  conducted  by  his  group
superintendent  and  commander  found  the  squadron   supervisory   actions
“questionable.”  The character of the student whose  testimony  resulted  in
his receipt of a Letter of Reprimand (LOR) was less than credible.

His  overall  ratings  throughout  his  career  substantiate  evidence   the
referral EPR was unjust.  He received a referral  EPR  for  arguing  with  a
medical provider about an appointment and for advising  a  training  student
on how to remove an LOR from his record.   Most  would  not  consider  these
acts substantial departures from acceptable  conduct,  standards  character,
or military bearing.

He has concerns regarding the  answer  he  received  following  his  initial
request  for  relief  and  he  feels  the  referral  report  was   processed
incorrectly.  The report has affected his livelihood for the  past  two  and
one-half years.   His promotion opportunities, his faith in the  system  and
his motivation to continue to be a good NCO have  also  been  impacted.   An
EPR does not have  to  be  referred  just  because  it  mentions  less  than
acceptable  performance,  bearing,  judgment,  leadership,  supervision   or
similar subjective areas.  Most supervisors would have resolved  the  matter
with a Letter of Reprimand (LOR) and a rating on the EPR of “4” or “5.”

The applicant’s complete submission is at Exhibit D.

_______________________________________________________________

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 careful notice of the  applicant's
complete submission, to include his response  to  the  advisory  opinion  in
judging the merits of the case; however, after  a  thorough  review  of  the
evidence of record and his complete submission, we are  not  persuaded  that
the EPR should be removed  from  his  records.   His  contentions  are  duly
noted; however, we do  not  find  his  assertions,  in  and  by  themselves,
sufficiently persuasive to override the rationale provided by the Air  Force
office of primary  responsibility  (OPR).   Therefore,  we  agree  with  the
opinion and recommendation of the Air Force OPR and adopt its  rationale  as
the basis for our conclusion the applicant has not been  the  victim  of  an
error or injustice.  Additionally, we are  not  persuaded  by  the  evidence
provided in support of his appeal, that the contested report is not  a  true
and accurate assessment of his demonstrated potential during  the  specified
time period or that the procedures used to process the referral report  were
contrary to the provisions of the governing instruction.  In the absence  of
persuasive evidence to the contrary, we find no 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 issue  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 this application in  Executive
Session on 22 Jun 10, under the provisions of AFI 36-2603:

      Panel Chair
      Member
      Member

The following documentary evidence was considered in AFBCMR BC-2009-03284:

    Exhibit A.  DD Form 149, dated 10 Sep 10, w/atchs.
    Exhibit B.  Letter, HQ AFPC/DPSIDEP, dated 24 Dec 09.
    Exhibit C.  Letter, SAF/MRBR, dated 29 Jan 10.
    Exhibit D.  Letter, Applicant, dated 25 Feb 10.




                                   Panel Chair