RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05342
		
		COUNSEL:  NONE

		HEARING DESIRED:  NO


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APPLICANT REQUESTS THAT:

1.  His Enlisted Performance Reports (EPR) covering the periods 1 Apr 05 through 30 Sep 06 and 1 Oct 07 through 30 Sep 08 be declared void and removed from his records.  

2.  He be given supplemental promotion consideration to the grade of Senior Master Sergeant (SMSgt/E-8) for promotion cycles 06E8, 07E8, 08E8, 09E8, and 10E8 and receive his promotion board scores for each. 

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APPLICANT CONTENDS THAT

1.  The two cited EPRs were issued in reprisal for his Inspector General (IG) and Article 138 complaints against his leadership for their selective enforcement of their Senior Rater Endorsement policy.

2.  His EPR covering the period 1 Apr 05 through 30 Sep 06 was not signed by the proper individual in his chain of command in violation of AFI 36-2406, Officer and Enlisted Evaluation Systems, Paragraph 3.2.5.4.  The AFI prohibits making rating chain deviations (such as skipping an evaluator) solely for reasons of convenience.  However, the additional rater block on this EPR was not signed by his additional rater, the Military Personnel Flight (MPF) commander, but by the Mission Support Squadron Commander instead.  

3.  He was unjustly denied multiple supplemental promotion considerations: 

		a.  When the 06E8 Board convened, one of his decorations was missing from his record and his duty title was wrong on the Senior Noncommissioned Officer (SNCO) Evaluation Brief used for his supplemental board. 



		b.  The Evaluation Report Appeals Board (ERAB) directed that his EPR closing 29 Jun 06 be replaced; however, he should have been provided supplemental promotion consideration for promotion cycles 07E8 and 08E8. 

		c.  He did not meet an original 09E8 promotion board because his EPR covering the period 1 Oct 07 through 30 Sep 08 was not completed in time to meet the board, unfairly causing his records to meet a supplemental board.  This was an act of reprisal. 
 
		d.  The ERAB directed his EPR closing 30 Sep 07 be voided and removed from his record; however, he was again not provided supplemental  promotion consideration in violation of AFI 36-2502, Table 2.5, Rule 2.  

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

_________________ ______________________________________________

STATEMENT OF FACTS:

The applicant served in the grade of Master Sergeant (MSgt/E-7) while assigned to Misawa AB, Japan during the period of time in question.

According to the documentation provided by the applicant, on 3 Aug 07 he filed an AF Form 102, IG Complaint, claiming unfair selective enforcement of the Wing’s unwritten Senior Rater Endorsement Policy for EPRs; on 9 Aug 07, he filed an Article 138 Complaint claiming reprisal; and on 15 Oct 07, he filed an AF Form 102 with the IG claiming reprisal. 

On 3 Jun 08, the ERAB granted the applicant’s petition to have his EPR covering the period 1 Apr 05 through 29 Jun 06 replaced with an EPR covering the period 1 Apr 05 through 30 Sep 06.  

On 3 Aug 10, the ERAB granted the applicant’s request to void and remove his EPR covering the period 1 Oct 06 through 30 Sep 07 because it contained bullets which were duplicate of another EPR.  However, the ERAB denied the applicant’s request to void and remove two additional EPRs covering the periods 1 Apr 05 through 30 Sep 06 (which he had recently gained ERAB approval to substitute into his record in place of his EPR closing out 29 Jun 06) and 1 Oct 07 through 30 Sep 08.  The applicant contended that the EPRs should be removed from his record because he was denied a senior rater endorsement in reprisal for challenging the wing policy on senior rater endorsements.  The ERAB was not convinced the contested reports were unjust or wrong.


On 10 Feb 11, the ERAB again denied the applicant’s request to void his reaccomplished EPR covering the period 1 Apr 05 through 30 Sep 06.  The applicant claimed coercion by superiors, unfair treatment, and an incorrect rater and final evaluator caused the EPR to be invalid.  The ERAB was not convinced the original report was unjust or wrong.  The ERAB pointed out that the applicant lacked supporting documentation such as a Commander Directed Investigation or Equal Opportunity and Treatment (EOT) Investigation to substantiate his allegation of discrimination.  

The following is a resume of the applicant’s enlisted performance reports:

Period of Supervision
Location
Rating 
Status 
10 Apr 04 thru 31 Mar 05
Texas
5

1 Apr 05 thru 29 Jun 06 
Japan 
N/A
Voided by the ERAB*
1 Apr 05 thru 30 Sep 06
Japan
5 
Replaced voided EPR
1 Oct 06 thru 30 Sep 07
Japan
N/A
Voided by the ERAB**
1 Oct 07 thru 30 Sep 08
Japan 
5 

1 Oct 08 thru 30 Sep 09 
Germany 
5


*Removed at the request of the applicant and replaced by subsequent report.
** Removed at the applicant’s request because it contained duplicate bullets 

The applicant was ultimately selected for promotion to the grade of Senior Master Sergeant (E-8) in cycle CY1108E.  

The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPRs) which are included at Exhibits C and D. 

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AIR FORCE EVALUATION:

AFPC/DPSID recommends denial indicating there is no evidence of an error or injustice.  The ERAB approved the applicant’s request to replace his EPR covering the period 1 Apr 05 through 29 Jun 06 with a reaccomplished EPR covering the period 1 Apr 05 through 30 Sep 06, despite the fact the two evaluations were signed by a different reviewer and the revised version contained considerable content changes in the applicant’s favor.  Subsequently, the applicant filed additional appeals to the ERAB requesting the reaccomplished EPR be declared void, along with EPRs closing out on 30 Sep 07 and 30 Sep 08, due to alleged unfair treatment.  The ERAB determined the EPRs closing 30 Sep 06 and 30 Sep 08 were not in error or unjust and denied the applicant’s request; however, the ERAB approved the removal of the EPR closing out 30 Sep 07 because it contained duplicate bullets that were duplicated in the replacement EPR closing on 30 Sep 06 (a fact the ERAB was not aware of when it approved the applicant’s previous request).  

The applicant also contends his EPRs rendered for the period 1 Apr 05 through 30 Sep 06 and 1 Oct 07 through 30 Sep 08 are inaccurate due to discrimination and unfair treatment.  However, he did not provide any official Equal Opportunity Treatment (EOT) investigation findings or a completed IG report to prove he was treated unfairly or discriminated against.  Although the applicant provided e-mails from a rater in his chain of command and statements from outside sources, there is no confirmation the applicant was unfairly assessed on reports rating his actual performance.  The documentation does not provide any clear or concrete evidence of an error or injustice in the preparation or execution of the contested reports.  

Regarding the applicant’s contention his EPR covering the period 1 Apr 05 through 30 Sep 06, which is only a matter of record because he requested that it replace another report, was in error because it was not signed by his additional rater at the time in violation of AFI 36-2406, the unit commander determines the rating chain for assigned personnel based on Air Force and Management Level policy.  The voided EPR closing on 29 Jun 06 was signed by the applicant’s additional rater at the time who also signed the substitute report.  AFI 36-2401 states substitute reports must be signed by the evaluators who signed the original report.  Therefore, the substitute report covering the period 1 Apr 05 through 30 Sep 06 was also appropriately signed by Major “S” even though he was no longer the applicant’s additional rater when the substitute report was completed.  Moreover, unit commanders determine the rating chain for assigned personnel and without proper statements from the applicant’s leadership at the time for clarification, it is impossible to determine the validity of the applicant’s claim that the additional rater on his EPR was the wrong person.  

Concerning the applicant’s contention the contested EPRs written while he was stationed at Misawa AB, Japan were weak, AFI 36-2401 states a report is not erroneous or unfair because the applicant believes it contributed to non-selection for promotion or may impact future or career opportunities.  The applicant’s rating chain simply made a determination as to what was relevant information regarding the applicant’s duty performance and promotion potential during this contested rating period and properly documented that performance on the contested EPRs.  The applicant has not provided relevant evidence that the reports in question are erroneous or unjust based on content, and without clear and significant evidence, the applicant has not demonstrated a compelling need to void his contested EPRs.

A complete copy of the AFPC/DPSID evaluation is at Exhibit C.


AFPC/DPSOE recommends the applicant receive supplemental promotion consideration to the grade of E-8 beginning with cycle 08E8, indicating there is evidence of an error.  After the ERAB approved the replacement of the EPR covering the period 1 Apr 05 through 29 Jun 06 with the EPR covering the period 1 Apr 05 through 30 Sep 06, the new EPR closing 30 Sep 06 was used in the promotion process during promotion cycles 07E8 and 08E8.  The applicant was provided promotion consideration by the supplemental board and was a non-select for both cycles.  While the applicant claims his record was not seen by a supplemental board because he was not provided a score notice nor was a brief filed in his record, IAW AFI 36-2502, Airman Promotion/Demotion Programs, score notices are not provided for Airmen who receive supplemental board consideration to SMSgt and CMSgt, if they were considered by the original board.  Since the applicant had met original boards, he was not provided a score notice.  In addition, new briefs are only printed if information on the brief has changed.  Since EPR dates are not listed on the SNCO Evaluation Brief, the change in the applicant’s EPR date did not affect his brief, and a new brief was not necessary.  Recommend disapproval of the request for supplemental consideration for cycles 07E8 and 08E8 based on the change in close out date of his 29 Jun 06 EPR.

The applicant also requests supplemental consideration for promotion for cycle 08E8 due to the removal of his 30 Sep 07 EPR.  A review of the records indicates the contested report was approved for removal by the ERAB on 3 Aug 10, however, the Enlisted Promotion Section at AFPC was never notified of the corrective action and therefore the applicant’s record was never processed for supplemental Board consideration.  Therefore, the applicant should be provided supplemental promotion consideration beginning with cycle 08E8.   

The applicant is requesting supplemental promotion consideration for cycle 06E8 based on a missing decoration and an incorrect duty title.  The applicant received supplemental promotion consideration for cycle 06E8 with the added decoration as evidenced by the 2 Apr 06 Senior Noncommissioned Officer Evaluation Brief.  Although the brief does reflect the wrong duty title, the applicant’s top EPR that was seen by the Board reflected the correct duty title.  IAW AFI 36-2502, supplemental promotion consideration will not be granted if the error or omission appeared on/in the Airman’s DVR, ARMS record, or SNCO selection folder and no corrective or follow-up action was taken by the Airman prior to the original evaluation board for SMSgt.  There is nothing in the records to indicate the applicant tried to have the duty title on his career brief corrected prior to the original SMSgt Evaluation Board.  Therefore, the applicant’s request for supplemental promotion for cycle 06E8 should be denied.  



A complete copy of the AFPC/DPSOE evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends his records were incorrect the entire time he was at Misawa AB.  His EPR covering the period 1 Apr 05 through 30 Sep 06 was not signed until 7 Mar 08, and was not placed in his file until 2 Jun 08, almost two years after closing out.  His EPR covering the period 1 Oct 06 through 30 Sep 07 was signed on 25 Jan 08, two months before his Sep 06 EPR was signed.  This hurt his promotion records.  While AFPC/DPSID indicates that he did not provide any clear or concrete evidence of reprisal or unfair treatment he received, he filed an IG complaint for reprisal and an Article 138 complaint and submitted multiple letters of support from credible individuals who witnessed the treatment and its effect on his evaluations.  As for the argument that his additional rater on his reaccomplished EPR closing out on 30 Sep 06 had to be the very same additional rater who signed the original EPR, then the EPR is still incorrect because the replacement EPR as signed by a different reviewer than the reviewer on the initial EPR.  He also takes exception to the position that he may not have received Senior Rater Endorsement because the bullets in his EPR lacked Top 3 involvement, and emphasizes the support he submitted from three Chief Master Sergeants.  Finally, he asserts that the preponderance of evidence from credible and relevant first hand witnesses clearly indicates he was subjected to unfair treatment (Exhibit F).

The applicant’s rebuttal to the AFPC/DPSOE advisory states that although they claimed he received supplemental promotion consideration, the response to a FOIA request shows he only received a supplemental consideration for the 09E8 cycle.  He met an “in-system supplemental process” for cycles 07E8 and 10E8, and the FOIA request infers the same may be true for cycle 08E8.  As for the claim there was nothing in his record to indicate he tried to get the incorrect duty title on the NCO Promotion Brief corrected for the 06E8 cycle, he did not know the duty title was incorrect.  Since he went through the process of updating his records to include a missing decoration, he surely would have corrected the duty title and Duty AFSC (DAFSC) as well had he know they were incorrect at the time.  Further, he now requests the supplemental promotion boards be conducted without using the EPRs he received while stationed at Misawa AFB (Exhibit G).

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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 concerning the applicant’s enlisted performance reports (EPR).  The applicant alleges he has been the victim of an error or injustice (10 USC 1552) and that he has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC 1034).  He contends that his EPRs are inaccurate, invalid, and unjust in that he was denied the appropriate senior rater endorsement in reprisal for his Inspector General (IG) and Article 138 complaints.  We took notice of the applicant’s complete submission, to include his rebuttal responses to the advisory opinions, in judging the merits of the case; however, we agree with the opinion and recommendation of AFPC/DPSID and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or an injustice or reprisal concerning his EPRs.  While the applicant claims these reports should be removed from his record because they were issued in reprisal in violation of the Whistleblower Protection Act (10 USC 1034), we note that he has failed to provide the final IG Report of Investigation (ROI) or any other documentation from a proper investigating authority proving his allegations were substantiated.  Even so, based upon our own independent review, we have determined the applicant has not established that his command took any action that was motivated by retaliation for making protected communications.  In reaching this determination, we note he has submitted insufficient evidence to establish a prima facia case of reprisal.  Given the Assumption of Regularity, we are not convinced the contested EPRs inaccurately describe the applicant’s performance or promotion potential.  In addition, the applicant petitioned the ERAB on multiple occasions for changes or corrections to his EPRs and was granted relief where warranted, but has not submitted sufficient evidence or information to this Board to clearly establish that his record of performance, as it is currently constructed, is inaccurate, invalid, or unjustly caused him to be non-selected for promotion.  Therefore, we find no basis to recommend any relief beyond that rendered by the ERAB.

4.  Notwithstanding the above, sufficient relevant evidence has been presented to warrant granting partial relief with respect to the applicant’s requests for supplemental promotion consideration.  In this respect, we agree with the comments of AFPC/DPSOE indicating the applicant should have received supplemental promotion consideration when his EPR closing 30 Sep 07 was removed from his record.  Accordingly, we believe he should receive supplemental promotion consideration for all cycles for which this now-voided report was a matter of record, i.e., 08E8, 09E8, and the 10E8 promotion cycles.  The applicant believes he should also be afforded supplemental promotion consideration for earlier promotion cycles; however, in view of the fact that we have determined that there is insufficient evidence to warrant any other corrections to his underlying record, we find no basis to recommend that he be afforded supplemental promotion consideration for the 06E8 and 07E8 cycles.  Therefore, we recommend that his record 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 provided supplemental promotion consideration to the grade of Senior Master Sergeant (E-8) for promotion cycles 2008E8, 2009E8, and 2010E8.  If the Air Force Personnel Center 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 applicant ineligible for the promotion, such information will be documented and presented to the Board for a final determination or the individual’s qualifications for promotion.  

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The following members of the Board considered AFBCMR Docket Number BC-2012-05342 in Executive Session on 10 Sep 13, 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 8 Nov 12, w/atchs.
		Exhibit B.  Applicant's Master Personnel Records.
			Exhibit C.  Letter, AFPC/DPSID, dated 6 Mar 13.
	Exhibit D.  Letter, AFPC/DPSOE, dated 24 Apr 13.
	Exhibit E.  Letter, SAF/MRBR, dated 19 May 13.
	Exhibit F.  Letter, Applicant, dated 10 Jun 13, w/atchs.
	Exhibit G.  Letter, Applicant, dated 10 Jun 13, w/atchs. 
	



                                   
                                   Panel Chair