RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-02052

	 	COUNSEL:  NONE

		HEARING DESIRED:  NO 


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APPLICANT REQUESTS THAT:

1.  The 18 Jan 12 Letter of Reprimand (LOR) be removed from his records.  

2.  His referral AF Form 475, Education/Training Report, rendered for the period 27 May 2010 thru 22 March 2012, be declared void and removed from his record.  

3.  If the AF Form 475 is not declared void and removed from his record, it should be changed by deleting the comment, “Received a Letter of Reprimand for drunken operation of a motor vehicle”.  

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APPLICANT CONTENDS THAT:

1.  He was not operating a vehicle while impaired or in a reckless/wanton manner as defined within the meaning of Article 111, Uniform Code of Military Justice (UCMJ).  Therefore, his issued LOR inaccurately reflects an offense he did not commit.  

2.  He unjustly received a LOR and referral education/training report for an alleged violation of Article 111, since a metropolitan court found him not guilty of the offense.  

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

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STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of captain (0-3).  

On 18 Jan 12, the applicant received a Letter of Reprimand (LOR) for operating a vehicle while drunk, in violation of Article 111, UCMJ, and advised on recommendation for placement in his officer selection record (OSR).  
On 23 Jan 12, the applicant provided a statement on his own behalf in regards to the LOR and its placement in his OSR.  Specifically, he indicated that he expected to be exonerated of the charge and requested withdrawal of the LOR until after his criminal trial.  Also the verbiage used in the LOR was not in alignment with the comments annotated in the criminal complaint. 

On 25 Jan 12, the applicant’s commandant determined the LOR would be upheld and filed in his OSR.  

On 20 Jul 12, the applicant’s Education/Training Report, rendered for the period 27 May 10 thru 22 Mar 12, was referred to him for a comment relating to his receipt of an LOR for an alcohol-related incident.  

On 20 Jul 12, the applicant elected to provide a statement on his own behalf in regards to the referral report.  Specifically, asking for focus to be placed on his 18 months of hard work instead of singling out one incident and noting the incident had yet to be resolved through the court.  

On 6 Aug 12, the applicant was issued an AF Form 77, Letter of Evaluation, advising him of the Director and Chancellor’s consideration of his comments to the referral report.  

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

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AIR FORCE EVALUATION:

AFPC/DPSIM recommends denial of the applicant’s request for removal of his LOR, indicating there is no evidence to indicate incorrect procedures were used.  Based on the evidence presented, the LOR was administered in accordance with AFI 36-2907, Unfavorable Information File (UIF) Program.  

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

AFPC/DPSID recommends denial of the applicant’s request for the removal of his contested Education/Training Report.  The applicant did not provide any compelling evidence to support the report is unjust or inaccurately written.  Based on the legal sufficiency of the applicant’s LOR and no proof of its removal, the report should be maintained as a part of his permanent record.  An evaluator is obligated to consider incidents and their significance/frequency when assessing a member’s performance and potential and only the evaluator knows how much an incident influences a report.  In accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems, evaluators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil law or the UCMJ, or when adverse actions such as an LOR has been taken.  In this case, the applicant chose to drink and get behind the steering wheel of a motor vehicle.  His behavior was appropriately documented in his report which caused it to be referred.  He provided no evidence to indicate his report was inaccurate or unjust; as such, it was within the evaluator’s authority to document the incident.  It is the rater’s responsibility to document performance during the reporting period and he/she determines what is documented.  Furthermore, a final review of the referred report was accomplished by the Air Force Institute of Technology (AFIT) commandant to ensure fair consideration was provided.  Also in accordance with AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports, the most effective evidence on behalf of the applicant consists of supporting statements from the evaluators who signed the report or from other individuals in the rating chain when the report was signed.  Without the benefit of these statements, the only conclusion that can be made is that the report is accurate as written.  In contrast, the applicant provided an e-mail indicating his evaluator was unwilling to either sign a memo in support of his request or change the referral report.  Therefore, the applicant has provided no evidence or substantiating documentation to prove his assertions.  It is Air Force policy that an evaluation report is accurate as written when it becomes a matter of record.  Furthermore, it is considered to represent the rating chain’s best judgment at the time it is rendered.  As such, the applicant’s report was accomplished in accordance with all applicable Air Force policies and procedures.  Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record.  The burden of proof is on the applicant.  In summary, the applicant has not substantiated that the contested report was not rendered in good faith by all evaluators based on information available at the time.  Therefore, there is no evidence of an error or injustice.  

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

AFPC/JA recommends denial indicating there is no evidence of an error or an injustice.  The applicant contends he was found not guilty by a civilian court for operating a vehicle while impaired or in a reckless/wanton manner, as defined by the UCMJ.  In support of his contention, he provided a “routing slip” from a metropolitan court indicating he was found not guilty of driving under the influence (DUI) and keeping his vehicle within the traffic lane.  The applicant claims that because of this judicial finding, he was not operating a vehicle while impaired or in a reckless/wanton manner as defined by the UCMJ.  However, the applicant’s assessment is correct.  The fact that he was found not guilty by a criminal court does not mean he did not drive his car in the alleged manner.  The circumstances of the court’s determination are unknown.  However, the guilt of a citizen of an offense in a criminal court must be established “beyond a reasonable doubt,” a very high burden of proof.  On the other hand, a LOR requires a preponderance of the evidence, a much lower standard (the alleged behavior must be more likely than not).  Additionally, the LOR did not allege the same offenses as those tried by the civilian court.  The LOR spoke to the arresting officer’s observations establishing the applicant’s behavior and impairment, his arrest for DUI, and his admission of having been drinking.  All of those allegations were established as fact by a preponderance of the evidence of record (most notably, the arresting officer’s report).  The applicant’s dispute over the definition of drunken operation of a vehicle within the meaning of Article 111, UCMJ, is irrelevant to the accuracy of the facts describing the misconduct in the LOR or the legal sufficiency of the adverse action.  In summary, the LOR was legally sufficient as written, and the subsequent referral report was fully substantiated and accurate.  

A complete copy of the AFPC/JA evaluation is at Exhibit E.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 28 Mar 14 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit F).  

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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.  We took 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 the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application.  

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2013-02052 in Executive Session on 8 May 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 21 Apr 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFPC/DPSIM, dated 9 Dec 13.
	Exhibit D.  Letter, AFPC/DPSID, dated 12 Feb 14.
	Exhibit E.  Letter, AFPC/JA, dated 14 Mar 14.
	Exhibit F.  Letter, SAF/MRBR, dated 28 Mar 14.




                                   
                                   Panel Chair







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