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AF | BCMR | CY2011 | BC-2010-01591
Original file (BC-2010-01591.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2010-01591
            INDEX CODE:  111.00
            COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Performance  Report  (OPR)  rendered  for  the  period  3 Sep 06
through 2 Sep 07 be removed from his record.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He received the referral OPR for  being  arrested.   All  the  charges  were
dropped before the case went to court.   The  owner  and  employees  of  the
establishment submitted a letter stating that he was  not  involved  in  the
incident.

In support of  his  appeal,  the  applicant  provides  copies  of  documents
extracted from his  military  personnel  records,  a  witness  statement,  a
letter from the State of Florida,  and  an  extract  from  the  Black’s  Law
Dictionary.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on active duty in the grade of major.

Applicant’s OPR profile is as follows:

                 PERIOD ENDING          OVERALL EVALUATION

                   5 Aug 03       Training Report (TR)
                   2 Sep 05       TR
                   2 Sep 05       Meets Standards (MS)
                  12 May 06       TR
                   2 Sep 06       MS
                  *2 Sep 07       Does Not MS
                   2 Sep 08       MS
                   2 Sep 08       MS

*Referral Report
The remaining relevant facts pertaining to this  application  are  contained
in the letter prepared by the appropriate office of the Air Force, which  is
attached at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSIDEP recommends denial.  DPSIDEP notes the  applicant  was  arrested
on 11 Aug 07 for disorderly conduct and resisting arrest  without  violence.
He received a Letter of Reprimand (LOR) for the  incident.   His  evaluators
decided to comment on the adverse action in his OPR.  However, prior to  the
finalizing of the report the State  Attorney  for  Florida  decided  not  to
pursue prosecuting the applicant and withdrew the charges in 2007.

Although the civilian authorities withdrew the case against  the  applicant,
this does not  automatically  erase  the  behavior  of  the  incident.   The
applicant’s  commanders  had  the  authority  to  question  and  punish  his
behavior regardless of the actions taken by civilian authorities.

The complete APFC/DPSIDEP evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In support of his request the applicant submitted copies of emails  between
him and his rater regarding the LOR and referral OPR.

Applicant’s complete response, with attachments, is at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of an error or injustice.   The  applicant's  complete  submission
was  thoroughly  reviewed,  to  include  his  rebuttal  response,  and   his
contentions were duly noted.   However,  we  do  not  find  the  applicant’s
assertions  and  the  documentation  presented  in  support  of  his  appeal
sufficiently persuasive to override the rationale provided by the Air  Force
office  of  primary  responsibility.    Therefore,   we   agree   with   the
recommendation of the Air Force OPR and adopt its  rationale  as  the  basis
for our  decision  the  applicant  has  failed  to  sustain  his  burden  of
establishing  that  he  has  suffered  either  an  error  or  an  injustice.
Accordingly, the applicant’s request is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of an error or injustice; the application was  denied  without
a personal appearance; and 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 AFBCMR Docket Number  BC-2010-
01591 in Executive Session on 11 Jan 11, under the  provisions  of  AFI  36-
2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Apr 10, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSOO, dated 23 Jun 10.
    Exhibit D.  Letter, SAF/MRBR, dated 26 Nov 10.
    Exhibit E.  Electronic Mail, dated 8 Dec 10, w/atchs.





                                             Panel Chair

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