RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-00951

		COUNSEL:  NONE

		HEARING DESIRED:  NO 


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APPLICANT REQUESTS THAT:

His enlisted performance report (EPR) covering the period 8 Oct 07 through 7 Oct 08 be declared void and removed from his record.  

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APPLICANT CONTENDS THAT: 

The EPR was knowingly falsified by his rater making the EPR void.  He was not provided any midterm feedback during the evaluation period, but his rater put 15 Feb 08 in Block V as the date the feedback was conducted.  His squadron’s internal tracking system (WOCNET) reflects that his last feedback was conducted on 23 Aug 07.  This action violated Article 107 of the Uniform Code of Military Justice (UCMJ) which states “Any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct.”  In addition, one of the EPR bullets states he earned three credits toward his CCAF degree.  He completed his CCAF degree in Apr 05.  The three credit hours were actually earned in Barber School.  Therefore, the EPR bullet is incorrect.  

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

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STATEMENT OF FACTS:

On 26 Nov 08, the applicant was presented an EPR covering the period 8 Oct 07 through 7 Oct 08 on which he received an overall performance assessment of “4” (Above Average).  Block V of the EPR reflected that the applicant’s last feedback was conducted on 15 Feb 08.  In Block IX the rate/applicant marked “No” where it states “I acknowledge all required feedback was accomplished during the reporting period…”
On 12 Apr 13, the applicant filed an appeal through the Evaluation Report Appeals Board (ERAB) requesting the EPR in question be removed from his records.  The ERAB was not convinced the report was unjust or inaccurate and denied his request.  

The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility, which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFPC/DPSID recommends denial indicating there is no evidence of an error or an injustice.  The applicant alleges his last feedback was accomplished on 23 Aug 07.  However, AFI 36-2406, Officer and Enlisted Evaluation Systems, states that when a required or requested feedback does not take place it is the ratee’s responsibility to notify the rater and if necessary the rater’s rater.  AFI 36-2406 also states that “since the ratee shares the responsibility to ensure feedback sessions occur, a feedback notice is also sent to the ratee through his unit concurrently with the notice to the rater.”  While documented feedback sessions are required, they do not replace informal day-to-day feedback.  A rater’s failure to conduct a required or requested feedback session, or document the session of a Performance Feedback Worksheet (PWS) does not invalidate a performance report.  AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports, states “There may be occasions when feedback was not provided during a reporting period, or a specific issue was not addressed; the lack of counseling or feedback, by itself, is not sufficient to challenge the accuracy or validity of an evaluation.  Evaluators must confirm they did not provide counseling or feedback, and that this directly resulted in an unfair evaluation.”  Only members in the rating chain can confirm if counseling and/or feedback was actually provided whether it was formal, informal, verbal or in writing.  In this case, although the applicant marked “No” in the ratee’s acknowledgement block, the applicant does not provide sufficient proof that a feedback session was in fact not conducted or a lack of feedback directly impacted the report unjustly.  Although the applicant provided statements from the additional rater and unit commander, they do not contend that the rater falsified the feedback date.  The memoranda only contend that because the rater allegedly did not conduct proper feedback, the applicant should have received an overall rating of 5.  Nevertheless, the applicant could have been receiving daily verbal feedbacks for any deficiencies.  Without input from the rater, we can only presume the feedback date is accurate as written.  The applicant merely provided personal opinions in the light that was most beneficial to him.  We do not see any valid justification to remove the report from his permanent record.  
Concerning the applicant’s contention his rater violated the UCMJ, we only have a one-sided story from the applicant and none from the rater who is unable to rebut the applicant’s assertion.  If the applicant believed he was the victim of an unfair report, and the report may negatively influence future promotion/career opportunities, it is our contention he should have officially filed an Inspector General (IG) or Military Equal Opportunity and Treatment (EOT) complaint.  The applicant has not provided any evidence to show he pursued any of these actions or received a finding in his favor.  Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  Additionally, it is considered to represent the rating chain’s best judgment at the time it is rendered.  To effectively challenge an evaluation, it is necessary to hear from the rater of record.  In the absence of sufficient evidence, we find the rating was given fairly and in accordance with all Air Force policies and procedures.   

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 13 Dec 13 for review and comment within 30 days.  He responded with memorandum for the Board in which he takes exception to paragraphs b, c, d, and e of the AFPC/DPSID staff advisory, and reiterates his initial contentions as to why he feels his EPR should be removed.  In addition, he repeats his argument that a UCMJ violation occurred, and highlights what he considers to be “an overwhelming amount of evidence” that he did not receive formal performance feedback (Exhibit E).

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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 request to void and remove the EPR in question.  We took notice of the applicant’s complete submission, to include his rebuttal response to the advisory opinion, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice concerning the viability of the EPR.  While the Board acknowledges the letters of support the applicant submitted on his behalf, the Board agrees with the position of AFPC/DPSID that the Air Force policy is that lack of feedback is not sufficient to challenge the validity of an evaluation.  Moreover, if the applicant truly believes a UCMJ violation has occurred with regard to his EPR, the appropriate avenue of such a complaint is the Office of the Inspector General (IG).  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the applicant’s request to void and remove the EPR in question.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the EPR in question contains a bullet statement which is misleading.  The Board notes the applicant’s EPR covering the period 8 Oct 04 through 7 Oct 05 includes a reference to the applicant having completed his Community College of the Air Force (CCAF) degree during that rating period, suggesting the statement appearing in the EPR in question claiming he “earned 3 credit hrs toward his CCAF degree” during this later rating period is incorrect.  Therefore, we recommend the applicant’s record be corrected as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on his enlisted performance report covering the period 8 October 2007 through 7 October 2008, the bullet in Block 4, Training Requirements, which reads “- Enrolled in New Horizons Barber School within 1 year of cert; also earned 3 credit hrs towards CCAF degree,” be changed to read, “- Enrolled in New Horizons Barber School within 1 year of cert; also earned 3 credit hrs adult ed.”

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The following members of the Board considered AFBCMR Docket Number BC-2013-00951 in Executive Session on 13 Feb 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 was considered:

	Exhibit A.  DD Form 149, dated 22 Feb 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFPC/DPSID, dated 12 Nov 13.
	Exhibit D.  Letter, SAF/MRBR, dated 13 Dec 13.
	Exhibit E.  Letter, Applicant, dated 7 Jan 14. 




                                   
                                   Panel Chair