RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-04594
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His referral Officer Performance Report (OPR), rendered for the period of 8 Jul 2008 through 23 Feb 2009, be voided from his officer selection record (OSR), or alternatively, the push line (part IV, line 6) of the OPR in question be redacted.
APPLICANT CONTENDS THAT:
Maintaining the referral OPR in his OSR contravenes his rating chains intent to mask actions for which he was punished and took responsibility by removing his Article 15 from his OSR. It would be unjust to continue punishing him for the same offense, by forcing him to involuntarily separate from the Air Force Reserve due to non-selection for promotion as a result of having this referral OPR in his OSR.
The applicants complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
The applicant initially entered the Regular Air Force on 22 Jan 02.
On 9 Jan 09, the applicant received an Article 15 for compromising classified material.
On 3 Apr 09, the contested OPR was referred to the applicant for comments related to his receipt of an Article 15 for violating Article 92 of the UCMJ; specifically, for failing to refrain from having a personally owned information system storage medium in an area where classified information was processed, for removing and recording classified information and negligently failing to safeguard classified information.
On 30 Sep 12, the applicant was furnished an honorable discharge, credited with 10 years, 8 months, and 9 days of active service, and transferred to the Air Force Reserve, effective 31 Oct 12.
The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.
AIR FORCE EVALUATION:
AFPC/DPSID recommends denial indicating there is no evidence of an error or an injustice. The applicant has not exhausted all administrative avenues of relief by not first filing an appeal through the Evaluation Reports Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports, 10 Mar 06. The applicant provided a memorandum from himself to the 55 WG/CC requesting removal of the Article 15 from his OSR, which was presumably endorsed and approved by all parties; however, the validity of the signatures cannot be confirmed as the memorandum is not wet signed by any of the signatories. The applicant believes that with the removal of the Article 15 from his OSR, the OPR that mentions it should be removed as well. Furthermore, the applicant does not contest the Article 15 and takes complete responsibility for his actions. The applicant believes the punishment was fair and just given his infraction. The applicant also believes since his punishment has been fulfilled, he should no longer be punished by way of a referral OPR mentioning it. Nevertheless, the applicant has failed to provide an AF Form 3212, Record of Supplemental Action Under Article 15, UCMJ, showing a set aside action regarding the Article 15, but rather provided his belief and opinion that it should be removed. Based upon the legal sufficiency of the Article 15 as rendered, and no evidence that the Article 15 punishment was ever set aside, we find that its mention in the applicant's contested report was appropriate and, as such, there is no basis to which its removal can be supported.
A complete copy of the AFPC/DPSID evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 16 Sep 14 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office.
THE BOARD CONCLUDES THAT:
1. The applicant has not 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. In this respect, we note this Board is the highest administrative level of appeal within the Air Force. As such, an applicant must first exhaust all available avenues of administrative relief provided by existing law or regulations prior to seeking relief before this Board, as required by the governing Air Force Instruction. AFPC/DPSID has reviewed this application and indicated the ERAB is an available avenue of administrative relief the applicant has not first pursued. In view of this, we find this application is not ripe for adjudication at this level, as there exists a subordinate level of appeal that has not first been depleted. Therefore, in view of the above, we find no compelling basis to recommend granting the relief sought in this application.
4. The applicants case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered.
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-2013-04594 in Executive Session on 23 Oct 14 under the provisions of AFI 36-2603:
The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-04594 was considered:
Exhibit A. DD Form 149, dated 24 Sep 14, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPSID, dated 8 Aug 14.
Exhibit D. Letter, SAF/MRBR, dated 16 Sep 14.
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