ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2011-04923

		COUNSEL:  

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  The AF Form 3070A, Record of Nonjudicial Punishment 
Proceedings, dated 12 Jun 10, be declared void and removed from 
her records

2.  The referral Enlisted Performance Report (EPR) for the 
period ending 8 Sep 10, be declared void and removed from her 
records.

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_

STATEMENT OF FACTS:

On 28 Aug 12, the Board considered and denied the applicant’s 
request, concluding the evidence presented was not sufficient to 
conclude the applicant was deprived rights to which she was 
entitled during the non-judicial punishment (NJP) process or 
that her commander’s determination and actions were arbitrary, 
capricious, or not based on a preponderance of the evidence.  As 
for the applicant’s argument that her referral EPR should be 
removed from her records, the Board was not convinced that she 
was denied due process when it was not re-referred to her when 
certain changes were made to the narrative, nor was the Board 
convinced the report contained erroneous information regarding 
the applicant’s fitness assessment (FA) failure.  For an 
accounting of the facts and circumstances surrounding the 
applicant’s request, and the rationale for the earlier decision 
by the Board, see the Record of Proceedings, with Exhibits, at 
Exhibit H. 

Subsequent to the Board’s initial deliberation of the 
applicant’s case, it was discovered that Counsel had submitted a 
comprehensive rebuttal to the advisory opinions rendered in the 
applicant’s case that was not considered by the Board.  In view 
of this, and to preclude the possibility of an injustice, the 
applicant’s initial case, including the rebuttal, was referred 
to the Board for reconsideration. 

By a letter dated 24 May 12, Counsel argues that no evidence was 
provided showing beyond a reasonable doubt that the applicant 
sent the harassing emails which formed part of the basis for the 
NJP.  The applicant did not state that a fellow airman claimed 
he saw her send the emails, she stated her ex-boyfriend thought 
she sent the emails.  Also, the Report of Investigation from 
Security Forces does not conclusively state the applicant sent 
the emails. Furthermore, she provided signed sworn statements 
from her parents indicating they sent the emails.  

The applicant has shown the comments on her EPR with respect to 
her fitness assessment (FA) failure are incorrect and that the 
EPR was referred more than once.  There were two different 
referral letters given to the applicant by her rater.  Both 
letters were dated 8 Oct 10.  The first letter referred the EPR 
for comments in section III, Performance Assessment, block 3. 
Fitness and the EPR was not signed.  The second letter referred 
the EPR for the comments in section III, Performance Assessment, 
block 2. Standards, Conduct, Character & Military Bearing and 
block 3. Fitness. The applicant failed her 8 Oct 10 fitness 
assessment and received the second referral letter on the same 
date.  The second letter is not correct because it simply could 
not have been generated that quickly after she failed the 
fitness test.  The applicant was denied the opportunity to 
comment on the second referral letter.  By denying the applicant 
the opportunity to comment on the second referral was improper 
and renders the EPR unjust.

As for the comments related to her fitness assessment in the 
contested referral EPR, the objectionable comments indicated the 
applicant received a does not meet standards rating on her 
fitness assessment (FA) because she failed to receive a passing 
score; however, said comments relate to a FA the applicant 
participated in after the close-out of the contested referral 
EPR.  Additionally, AFPC/DPSIM confirmed the applicant was 
current when her EPR closed out; therefore, because these 
comments relate to an FA failure that took place after the 
close-out of the referral EPR and AFPC/DPSIM has confirmed that 
she was current with respect to her Fitness testing as of the 
close-out of this report, there is no basis for a does not meet 
standards rating for fitness on the contested referral EPR.

Counsel’s complete submission is at Exhibit I.

Under the provisions of AFI 10-248, Fitness Program, 24 May 05, 
service members who receive an excellent/good score must retest 
within 12 months, are considered non-current on the 1st day of 
the 13th month after their last fitness assessment (if the 
service member tested between 1 through 31 Jan, the service 
member is due to test the following Jan and becomes non-current 
on 1 Feb.) 

Because the applicant’s last passing FA score was on 15 Dec 09, 
under the policy described above, she would not be required to 
participate in another FA until 1 Jan 11.  However, with the 
release of AFI 10-248, Fitness Program, AFGM 1, on 4 Jan 10, the 
rules for currency changed and military members, such as the 
applicant were required to participate in FAs semi-annually, 
instead of annually.  Because the applicant’s last FA was on 
15 Dec 09 and she received an overall rating of “Good” she 
became non-current on 1 Ju1 10, which was before the close-out 
of the contested EPR.  Therefore, she was non-current as of the 
date of the close-out of the contested EPR.

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THE BOARD CONCLUDES THAT: 

1.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice with respect 
to the applicant’s request pertaining to her Article 15 
punishment.  We have thoroughly reviewed the evidence of record 
to include the applicant’s original request along with Counsel’s 
rebuttal response, but find these arguments insufficient to 
override the Board’s previous decision.  The applicant received 
an Article 15 for violating various articles under the UMCJ.  
She contends she is innocent and there was no evidence to show 
beyond a reasonable doubt that she sent the emails in question.  
The applicant accepted the nonjudicial punishment (NJP) and 
waived her right to trial by court-marital.  By waiving trial by 
court-martial she acknowledged that her commander would decide 
whether and how much punishment was appropriate for the offenses 
committed.  The applicant’s commander was in the best position 
to carefully weigh all evidence, make informed findings of fact, 
and arrive at a suitable punishment.  In addition, the 
commander’s decision and subsequent punishment were within the 
discretionary limits of his authority.  Furthermore, there was 
no evidence the applicant was not afforded all her rights or 
that her commander acted arbitrarily or capriciously, or abused 
his discretionary authority.  After a thorough review of the 
applicant’s complete submission, the evidence of record and the 
rebuttal, we find the evidence insufficient to override the 
basis of the Board’s previous decision to deny removal of the 
Article 15.  Other than the applicant’s and Counsel’s 
assertions, no documentation has been provided showing the 
applicant’s commander was unable to evaluate the circumstances 
of the situation and render fair and just punishment, that he 
abused his discretionary authority, or that the applicant was 
not afforded her rights during the Article 15 process.  
Therefore, based on the above, we find no basis to recommend 
removal of the Article 15 in question.

2.  As for Counsel’s argument that the contested enlisted 
performance report (EPR) was referred multiple times to the 
applicant, we note this issue was adequately addressed in the 
original consideration of this case.  Accordingly, we are not 
convinced by the recent evidence provided that the applicant was 
the victim of an error or an injustice. 

3.  Notwithstanding the above, sufficient relevant evidence has 
been presented to demonstrate the existence of an error or 
injustice with respect to the referral comments on the contested 
referral enlisted performance report (EPR) related to the 
applicant’s fitness assessment (FA) failure.  Counsel asserts 
the comments on the contested EPR relating to the applicant’s 
8 Oct 10 FA failure were improper as they described events that 
took place after the close-out of the contested EPR.  After a 
thorough review of the evidence of record and the applicant’s 
complete submission, we agree and believe some measure of relief 
is warranted.  However, in spite of this, we do not find there 
is a basis to alter the Does Not Meet standards rating for 
fitness.  In this respect, we note the applicant was noncurrent 
on her FA at the close-out of the contested EPR in accordance 
with provisions of AFI 10-248, AFGM 1, dated 4 Jan 10, which, as 
of 1 Jul 10, prescribed semi-annual fitness testing for members, 
such as the applicant, whose most recent fitness result was a 
satisfactory or lower.  Effective 1 Jul 10 airmen were required 
to test under the new semi-annual requirement; therefore, in 
view of the fact that her previous FA took place on 15 Dec 09, 
the applicant became non-current on 1 Jul 10, well before the 
8 Sep 10 close-out.  Therefore, while the comment describing the 
applicant’s fitness failure inappropriately described events 
that took place after the close-out of the contested EPR, the 
fact of the matter is the applicant was non-current in fitness 
as of the close-out of the contested EPR and, therefore, a Does 
Not Meet standards rating was appropriate.  Therefore, we 
believe the objectionable comment should be revised to reflect 
the true circumstances of the applicant’s situation at the close 
out of the contested EPR—she was non-current in her FA.  
Therefore, we recommend the applicant’s records be corrected to 
the extent indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT be corrected to show that Block 
3, Fitness, of the AF Form 910, Enlisted Performance Report (AB 
thru TSGT), rendered for the period 9 September 2009 through 
8 September 2010, be corrected to reflect, “Member failed to 
maintain currency,” instead of “Mbr failed to maintain Physical 
Fitness stds.”

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The following members of the Board considered AFBCMR Docket 
Number BC-2011-04923 in Executive Session on 29 May 14, under 
the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member


All members voted to correct the records as recommended.  The 
following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-04923 was considered:

	Exhibit H.	Record of Proceedings, dated 31 Mar 11, 
w/Exhibits.
	Exhibit I.	Letter, Counsel, dated 24 May 12.