RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-03790 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His AF Form 707, Officer Performance Report (Lt thru Col) 
rendered for the period 30 May 10 thru 29 May 11 be removed. 

 

2. His letter of reprimand (LOR), dated 26 Apr 11 be removed. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. His referral OPR is unjust and in violation of AFI 36-2406, Officer and Enlisted Evaluation because it is based solely on an 
event that occurred outside of the reporting period. 

 

2. His referral OPR claims that “he engaged in an unprofessional 
sexual conduct with an enlisted member in violation of AFI 36-
2909, Professional and Unprofessional Relationships and received 
a LOR.” 

 

3. In 2009, he engaged in consensual sex with an individual who, 
unbeknownst to him at the time, was enlisted in the United 
States Army and stationed at an Army post in the same 
geographical area; however, there is no evidence that it 
“continued to influence his performance or utilization.” 

 

4. He received an OPR; letter of evaluation (LOE); Army 
Commendation Medal (ARCOM); and a formal training evaluation, 
none of which explicitly or implicitly suggest the incident 
continued to affect his performance or utilization. 

 

5. During the rating period, his superior summarily concluded 
that in 2009 he violated AFI 36-2909 and subsequently issued him 
a LOR that he has been unable to challenge outside of writing a 
response to him. His superior’s conclusions were in direct 
contrast to the conclusions of a fair and impartial review of 
the incident performed by a Judge Advocate (JA). 

 

In support of his request, the applicant provides copies of his 
AF Forms 707; AF Form 77, Letter of Evaluation; AF Form 475, Educations/Training Report; DA Form 4980-14, Department of the 
Army – The Army Commendation Medal citation; LOR, and various 
documents in support of his application. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is currently serving in the Air Force in the grade 
of first lieutenant. 

 

On 4 Nov 11, AFPC/DPSIMC requested the applicant provide 
additional supporting documentation to substantiate his claim. 
Specifically, the completed LOR he thought was unjustified. 

 

On 5 Dec 11, the applicant provided a copy of his LOR. 

 

The applicant did not file an appeal through the Evaluation 
Reports Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports. 

 

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force, which are attached at Exhibits C thru E. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSIMC recommends denial of the applicant’s request to 
remove the LOR dated 26 Apr 11. DPSIMC states in accordance 
with (IAW) AFI 36-2907, Unfavorable Information File Program, 
the LOR and UIF are official records of unfavorable information 
on a member that are initiated by a member’s commander. The UIF 
is a file for documenting administrative, judicial or non-
judicial censures concerning negative aspects of the member’s 
performance, responsibility or behavior. LORs are mandatory for 
file in the UIF for commissioned officers. 

 

The complete DPSIMC evaluation is at Exhibit C. 

 

AFPC/DPSID recommends denial of the applicant’s request to 
remove the contested OPR. DPSID states the applicant is 
incorrect in his assertion that since the unprofessional conduct 
did not technically occur within the rating period, its 
conclusion in the contested OPR is somehow invalid. The 
applicant was likely under investigation during portions of both 
the preceding OPR and the OPR the applicant is contesting. IAW 
AFI 36-2406, the rating chain should not include comments 
regarding events which occurred in a previous reporting period, 
unless the events add significantly to the evaluation report, 
were not known to and considered by the previous evaluators, and 
were not previously reflected in an evaluation report. In this 
case, the investigation, based on the date of the LOR clearly 
had concluded prior to the close-out of the contested report. 


No evidence exists in the applicant’s case to make the 
conclusion that the rating chain had knowledge of this incident 
during the prior reporting period. The rating chain was well 
within their prerogative in reporting this misconduct on the 
contested referral OPR. 

 

Regarding the applicant’s opinion that his unprofessional 
conduct did not have any influence in his performance or 
utilization during the reporting period, this opinion is 
irrelevant to the sufficiency or validity of the OPR in 
question. It was not he, but rather the rating chain, who were 
in the best position to make those kinds of judgments. In any 
event, there were no negative comments by the rating chain on 
the contested OPR referencing any poor performance by the 
applicant or inability to utilize the applicant on the report 
itself. 

 

Regarding the applicant’s implication that he was not in 
violation of AFI 36-2909 and that any violation on his part of 
this instruction was only in his superior’s mind, we must point 
out that the title of this AFI is “Professional and 
Unprofessional Relationships.” Based upon the conduct of the 
applicant depicted by the rater in the LOR, it is clearly not 
possible to draw any other conclusion than the applicant engaged 
in an unprofessional relationship, if however brief, and of 
which he freely admits to in this case. 

 

Finally, DPSIM has provided an advisory in the case in which 
they have validated that the process was done IAW AFI 36-2907. 

 

The applicant has failed to provide any information/support from 
any member of the rating chain on the contested evaluation, nor 
has he provided an Inspector General (IG) or Equal Opportunity 
Treatment (EOT) findings regarding the incident which he 
references, that may have been germane to his appeal. DPSID 
determined the report was accomplished in direct accordance with 
applicable regulations. 

 

DPSID contends that once a report is accepted for file, only 
strong evidence to the contrary warrant correction or removal 
from an individual’s record. The applicant has not 
substantiated that the contested OPR was not rendered in good 
faith by all evaluators based on knowledge available at the 
time, nor has he provided any compelling evidence to show that 
the report is unjust or inaccurate as written. 

 

The complete DPSID evaluation is at Exhibit D. 

 

AFPC/JA concurs with the advisory opinions of AFPC/DPSID and 
DPSIMD. AFPC/JA will address the applicant’s contention that 
the conclusions by the author of the LOR and OPR are in “direct 
contrast to the conclusions of a fair and impartial review of 
the incident performed by a Judge Advocate” (JA). 

 


The JA in question was the Article 32, Uniform Code of Military 
Justice (UCMJ), Investigating Officer (IO) assigned to examine 
criminal charges preferred against the applicant in order to 
make a recommendation to the Convening Authority whether the 
charges should go forward to be prosecuted at a court-martial. 
At the outset, it is critical to note that the examination of 
evidence by the IO is to determine if a likelihood exists that 
the charges (or modified charges, if changes were to be made to 
them) can be proven in a criminal trial beyond a reasonable 
doubt – the standard of proof at a court-martial. That is a far 
greater burden than the preponderance of the evidence standard 
used in reporting adverse behavior in an LOR and/or OPR. Thus, 
any conclusions reached by the Article 32 IO were with a view 
towards proof at a court-martial and not with regard to 
supporting an LOR or OPR. Moreover, what the IO determined was 
not that the evidence of record contradicted the applicant’s 
guilt of the charged offenses, but that there were gaps and 
problems with the proof with respect to proving the specified 
criminal charges in court beyond a reasonable doubt. 

 

More specifically, the allegation contained in the LOR that the 
applicant “engaged in sexual intercourse with a Private First 
Class, while she was drunk, in an open and notorious manner in 
the backyard of an active duty member’s off-base residence” is a 
true statement that is not contradicted by the evidence 
discussed by the Article 32 IO. In fact, the applicant has 
admitted to all but the “notorious” part of the allegation. 
Given his status as an Air Force officer, that element can be 
readily inferred from the overall circumstances. Likewise, the 
referral statement in the OPR constitutes a true statement that 
is established by a preponderance of the available evidence. 
While the Article 32 IO may have expressed a “reasonable doubt” 
about the applicant’s knowledge of the victim’s status as an 
enlisted member or his having committed a criminal violation of 
the custom of the service, he once again was referring solely to 
the potential proof of specified charges at a criminal trial 
where the standard of proof is much greater; the IO never 
addressed whether the overall evidence established that 
allegations contained in the LOR and OPR by the requisite 
preponderance standard. 

 

Finally, JA states the applicant’s reliance on some of the 
conclusions reached by the Article 32, UCMJ, IO, is misplaced 
and not applicable to the issue of the legality and 
justification for the adverse actions taken here. 

 

The complete JA evaluation is at Exhibit E. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Copies of the Air Force evaluations were forwarded to the 
applicant on 30 Mar 12 for review and comment within 30 days. 


As of this date, this office has received no response (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. Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice. We took 
careful notice of the applicant's complete submission in judging 
the merits of the case; however, we agree with the opinions and 
recommendations of the Air Force offices of primary 
responsibility and adopt their rationale as the basis for our 
conclusion that the applicant has not been the victim of an 
error or injustice. We do not find his assertions, in and by 
themselves, sufficiently persuasive in this matter. Evidence 
has not been presented which would lead us to believe that the 
LOR he received was improper. Additionally, we are not 
persuaded by the evidence provided that the contested report is 
not a true and accurate assessment of his performance and 
demonstrated potential during the specified time period or that 
the comments contained in the report were in error or contrary 
to the provisions of the governing instruction. In the absence 
of evidence to the contrary, we find no basis to recommend 
granting the relief sought in this application. 

 

_________________________________________________________________ 

 

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 Docket Number 
BC-2011-03790 in Executive Session on 21 June 2012, under the 
provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 


 Member 

 

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-03790 was considered: 

 

 Exhibit A. DD Form 149, dated 19 Sep 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSIMC, dated 29 Feb 12. 

 Exhibit D. Letter, AFPC/DPSID, dated 20 Mar 12. 

 Exhibit E. Letter, AFPC/JA, dated 27 Mar 12. 

 Exhibit F. Letter, SAF/MRBR, dated 30 Mar 12. 

 

 

 

 

 

 Panel Chair