RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-00316
		
		COUNSEL:  NONE

		HEARING DESIRED: NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Article 15 imposed on 20 Sep 10 be removed from his 
records.

2.  The Officer Performance Report (OPR), rendered for the 
period 17 Oct 09 through 16 Oct 10, be removed from his records.

________________________________________________________________

APPLICANT CONTENDS THAT:

1.  His due process rights were violated.  His commander refused 
to hear his case by personal appearance and failed to delegate 
the authority to his subordinate commander as required by the 
governing instruction.

2.  The contested report was not signed by his official rater.

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 first lieutenant (O-2).

On 7 Sep 10, the applicant received non-judicial punishment 
(NJP) under Article 15 of the Uniform Code of Military Justice 
(UCMJ) for being derelict in his duties by failing to refrain 
from bringing his personal cellular phone into the Launch 
Control Center (LCC) of Missile Alert Facility Fox-1, in 
violation of Article 92 of the UCMJ.  His punishment consisted 
forfeiture of $500.00 of pay per month for two months and a 
reprimand.

On 10 Sep 10, after consulting with legal counsel, the applicant 
acknowledged receipt of the action, accepting Article 15 
proceedings by waiving his right to trial by court-martial, 
elected to submit a statement, and requested a personal 
appearance.
On 20 Sep 10, the applicant’s commander determined the applicant 
committed the alleged offense, imposed the proposed punishment, 
and notified the applicant of his intent to file the NJP action 
in his Officer Selection Record (OSR).  

On 24 Sep 10, the applicant appealed the decision.  His 
commander denied his appeal on 2 Oct 10, and the appellate 
authority denied the appeal on 12 Oct 10.

The applicant received a referral OPR for the period 17 Oct 09 
through 16 Oct 10 for comments indicating that he violated 
Article 92 of the UCMJ by bringing his cell phone into the LCC.

The applicant’s OPR profile as is as follows:

			PERIOD ENDING		OVERALL EVALUATION

		*16 Oct 10	Does Not Meet Standards (MS)
		 16 Oct 11			MS
		  1 May 12			MS
		  3 Sep 12			MS
		  3 Sep 13			MS

On 1 Jul 12, the applicant requested the NJP and Unfavorable 
Information File (UIF) be removed from his OSR.  On 10 Oct 12, 
his request to remove the NJP from his OSR was approved; 
however, no action was required for the UIF as it had expired.

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 and D.

________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request to 
remove the NJP from the applicant’s records, indicating there is 
no evidence of an error or injustice.  The applicant alleges he 
was not afforded the opportunity for a personal appearance and 
his commander failed to delegate the request to his subordinate 
commander.  On 11 Jul 10, the imposing authority designated the 
applicant’s wing commander as the authority for hearing and 
receiving matters concerning the proposed NJP.  The commander 
further directed the wing commander forward all pertinent 
documentation to him for review.  The applicant appeared before 
the wing commander.  After hearing the applicant’s presentation, 
the wing commander recommended to the imposing authority that he 
find the applicant committed the alleged offense and impose 
punishment consisting forfeiture of pay and a reprimand. 

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPSID recommends denial of the applicant’s request to void 
the contested performance report indicating there is no evidence 
of an error or injustice.  The applicant has not provided 
compelling evidence to show that the report was unjust or wrong.  
He did file an appeal with the Evaluations Report Appeals Board 
(ERAB); however, the request was returned due to insufficient 
documentation.  He filed a subsequent appeal which was also 
returned due to insufficient supporting documentation.  The 
applicant provided a memorandum for record (MFR) from the 
individual who he claims is the actual rater.  However, the 
authenticity of the MFR cannot be verified as it was not signed 
with a wet signature.  Without an explanation or clarification 
from the rater who wrote the report, there is no validity or 
merit to this particular claim as a personal opinion from a 
member outside the rating chain is not germane to this appeal.  
Furthermore, a review of the Military Personnel Data System 
(MILPDS) confirmed that the rater who signed the report was the 
correct rater.

Air Force policy is that an evaluation report is accurate as 
written when it becomes a matter of record.  Moreover, it is 
considered to represent the rating chain's best judgment at the 
time it is rendered.  In challenging the validity of an 
evaluation report, it is necessary to hear from all the members 
of the rating chain; not only for support, but also for 
clarification/explanation.  The applicant has not provided any 
statements from the original evaluators during the contested 
period and without these statements, AFPC/DPSID can only 
conclude that the report in question is accurate as written.  
There is no evidence showing the report was not accomplished in 
accordance with all applicable Air Force policies and 
procedures.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provided a copy of the supporting statement from 
his actual rater with a wet signature.  He was his supervisor 
and was listed as his reporting official for more than 120 days.  
He was in the process of changing squadrons and it was decided 
that the rater reflected on the contested OPR would be listed as 
his supervisor.  However, she was not the applicant’s reporting 
official or commander at time the performance report closed out.  
The change was done to generate less work for the squadron and 
to avoid generating another OPR.  The 90th Missile Wing 
Inspector General (IG) can verify the authenticity of his claim.  

As for his Article 15, he was not aware of a memorandum being 
sent to the imposing authority from the wing commander.  His 
Defense Counsel advised him that that he would be afforded and 
opportunity to plead his case directly to the imposing 
authority.  A fair outcome was not possible as the wing 
commander recommends the proceedings.

The applicant’s complete response, with attachment, 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.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice regarding the 
applicant’s request that his Article 15 be removed from his 
records.  We took careful notice of the applicant's complete 
submission in judging the merits of the case; to include his 
rebuttal response; however, we agree with the opinion and 
recommendation of the AFLOA/JAJM and adopt their rationale as 
the basis for our conclusion the applicant has not been the 
victim of an error or injustice with respect to his NJP.  While 
the applicant believes he was denied his due process rights by 
not being able to present his appeal to the imposing authority, 
other than argument and conjecture, he has presented no evidence 
whatsoever that the decision of the imposing authority to 
delegate the responsibility to hear the applicant’s appeal to 
the wing commander was improper, represented an abuse of 
discretionary authority, or was arbitrary or capricious.  
Therefore, we find no basis to remove the contested NJP action.  
As for the applicant’s contention that the contested officer 
performance report (OPR) was signed by the wrong rater and 
should therefore be removed, we are not convinced the OPR was 
inappropriately rendered or is somehow inaccurate or unfair.  
While we note the applicant has provided a statement from a 
fellow officer indicating that he should have been his rater 
during the matter under review, without support of clarification 
from the rating chain of record, we do not find this statement, 
in and by itself, sufficient to conclude the OPR should be 
removed.  Further, the applicant’s records contain no 
documentation that would corroborate the claim that this officer 
was or should have been the rater of record.  In fact, the 
applicant’s record contains a statement from this officer in 
support of his appeal to the NJP action that indicates that he 
was his trainer.  Therefore, given the inconsistency between 
this statement and the documentation in the applicant’s record, 
we do not find the statement provided by the applicant 
constitutes sufficient evidence of an error or injustice with 
respect to the contested OPR.  Therefore we do not find a basis 
to recommend granting the relief sought.

________________________________________________________________
THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not 
demonstrate the existence of material 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-2013-00316 in Executive Sessions on 12 Nov 13, under 
the provisions of AFI 36-2603:

    , Panel Chair
    , Member
    , Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Jan 13, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 22 May 13, w/atchs.
    Exhibit D.  Letter, AFPC/DPSID, dated 2 Jul 13.
    Exhibit E.  Letter, SAF/MRBR, dated 24 Jul 13.
    Exhibit F.  Letter, Applicant, dated 15 Aug 13, w/atch.




                                   Panel Chair