RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-04430
COUNSEL: NONE
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. His AF Forms 910, Enlisted Performance Report (AB thru TSgt)
rendered for the periods 7 Mar 08 through 6 Mar 09 (administratively corrected) and 7 Mar 09 through 6 Mar 10 be
removed from his records.
2. He receive supplemental consideration for promotion to the
grade of to Staff Sergeant (SSgt).
_________________________________________________________________
APPLICANT CONTENDS THAT:
He received an Article 15 for falling asleep on duty. He
believes he should not have received the Article due to him being
diagnosed with Obstructive Sleep Apnea during the period in
question. The Article 15 and the contested performance reports
prevented him from testing for promotion for two cycles. His
commander eventually set aside the Article 15 in its entirety.
In support of his appeal, the applicant provides copies of
documents extracted from his military personnel records.
The applicants complete submission, with attachment, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 7 Jun 05, the applicant contracted his enlistment in the
Regular Air Force.
On 25 Jul 08, the applicant received an Article 15 for sleeping
on post on or about 1 May 08. His punishment consisted of a
reprimand, 30 days of extra duty, and reduction in grade to
Airman First Class with a new date of rank of 25 Jul 08.
By a letter dated 7 Jan 09, the applicants Otolaryngologist
indicated the applicant had been under her care for chronic
sinusitis and obstructive sleep apnea since 3 Sep 08.
The applicants EPR profile is listed below:
PERIOD ENDING OVERALL EVALUATION
6 Mar 07 5
6 Mar 08 5
* **6 Mar 09 3
*6 Mar 10 3
*Contested Reports
**Referral Report
On 12 Nov 10, the applicants commander set aside the 25 Jul 08
nonjudicial punishment in its entirety.
The applicant did not file an appeal with the Evaluation Report
Appeals Board (ERAB). However, the ERAB reviewed the application
and approved voiding the 6 Mar 09 performance report; however,
the ERAB denied removal of the 6 Mar 10 performance report as
they were not convinced it was inaccurate or unjust.
On 23 Jan 11, the applicant was relieved from active duty and
placed on the Temporary Disability Retired List (TDRL) with a 50
percent disability rating on 24 Jan 11. He served 5 years,
7 months, and 17 days of active service.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSID recommends denial of the applicants request to remove
the 2010 performance report. The applicant received the Article
15 in 2008 and the 2009 report was removed from his records, but
the 2010 report was rendered under the supervision of new
evaluators. This performance report is not a referral report;
it is an average evaluation with no negative comments or ratings.
DPSID notes the commander which set aside the nonjudicial
punishment is not the same commander which had oversight of the
contested report.
Furthermore, no evidence was provided to support the contention
that the 6 Mar 10 performance report was the result of the
Article 15. The applicant has not provided any statements from
the evaluator who signed the report indicating that it was
influenced by the nonjudicial punishment. Without support from
the evaluators who signed the report, it must be assumed the
report in question is an accurate assessment of the applicants
performance during the period in question.
The complete AFPC/DPSID evaluation is at Exhibit C.
AFPC/DPSOE states the applicant was provided supplemental
consideration for promotion to the grade of SSgt by the 09E5 and
10E5 cycles, but was nonselected for both cycles. However, if
the Board directs removal of the 2010 performance report he will
be entitled to supplemental consideration for promotion to the
grade of SSgt beginning with cycle 10E5.
The complete AFPC/DPSOE evaluation, with attachments, is at
Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
He did not appeal the report in question through the ERAB because
he was told the AFBCMR was the only way to correct the report.
As for the assertion that his 2010 report was not the result of
the Article 15, the applicant indicates he received the contested
rating because he was not allowed to carry a firearm because of
the Article 15. As a result, his former supervisor told him that
he would not rate him higher than a three because he was not
fully performing his duties. His former supervisor does not want
to get involved in the situation. Also, as a result of receiving
the Article 15 and undergoing an MEB he missed the opportunity
for promotion by the 09E5, 10E5, and 11E5 promotion testing
cycles.
The commander who set aside the Article 15 is the current
commander of his former supervisor and is in a prime position to
evaluate whether the EPR was warranted.
The applicants complete response, with attachments, is at
Exhibit F.
_________________________________________________________________
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 error or injustice. After a
thorough review of the facts and circumstances of this case, we
believe sufficient doubt has been raised regarding equity of the
contested EPR. Although AFPC/DPSID indicates the contested
report was not the result of the Article 15 action, we believe
the applicant has raised sufficient doubt the rating was not at
least indirectly attributable to the Article 15 which was
ultimately removed from the applicants records. Therefore, we
believe any doubt should be resolved in favor of the applicant.
Accordingly, we recommend his records be corrected to the extent
set forth below.
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 RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to the APPLICANT be corrected to show that the AF Form
910, Enlisted Performance Report (AB thru TSGT), rendered for the
period 7 March 2009 through 6 March 2010 be declared void and
removed from his records.
It is further recommended that he be provided supplemental
consideration for promotion to the grade of staff sergeant (E-5)
for all appropriate cycles beginning with cycle 10E5.
If AFPC discovers any adverse factors during or subsequent to
supplemental consideration that are separate and apart, and
unrelated to the issues involved in this application, that would
have rendered the individual ineligible for the promotion, such
information will be documented and presented to the Board for a
final determination on the individuals qualification for the
promotion.
_________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2010-04430 in Executive Session on 7 Sep 11, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
All members voted to correct the records as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 23 Nov 10, w/atchs.
Exhibit B. Applicants Master Personnel Records.
Exhibit C. Letter, AFPC/DPSID, dated 25 Feb 11.
Exhibit D. Letter, AFPC/DPSOE, dated 28 Mar 11, w/atchs.
Exhibit E. Letter, SAF/MRBR, dated 15 Apr 11.
Exhibit F. Letter, Applicant, dated 20 Apr 11.
Panel Chair
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