RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-00308

					COUNSEL:  NONE

		HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

1.  The Enlisted Performance Report (EPR) rendered for the period 
ending 2 Aug 13 be revoked or removed from his records.

2.  His Fitness Assessment dated 21 Jun 13 be removed from his 
records (administratively resolved).


APPLICANT CONTENDS THAT:

The contested performance report contains comments and errors that 
are prohibited by AFI 36-2406, Officer and Enlisted Evaluation 
Systems.  His rater included a comment regarding his being 
convicted in a civilian court and receiving fine.  This type of 
statement is prohibited as it references his punishment and it 
should have only referred to the underlying conduct or behavior 
that led to the action.  According to the AFI, this type of 
comment is encouraged but is not mandatory.  

Per the AFI, his commander can direct a performance report and 
submit it for discharge.  However, he believes the reason for the 
contested report is not justified as he does not meet any of the 
rules that fall under a Commander Directed report.  The contested 
report should reflect “Directed by HQ USAF.”

Furthermore, the AFI states the report should have closed out 
one day prior to the written notice of the proposed action.  He 
received written notice on 19 Aug 13 and the contested report 
closed out on 2 Aug 13.

Due to the contested report being directed by the commander, he 
was not given a midterm feedback as required by the AFI to show 
what areas he needed to improve.  Since the report closed out 
before the projected close out and he did not receive the midterm 
feedback, it should have been documented that the feedback was not 
accomplished.



He believes the “does not meet” standards rating he received for 
not maintaining fitness standards is unjust.  Had the contested 
report closed out as required by the AFI, he would have been able 
to meet his originally scheduled fitness assessment and would have 
passed the assessment and received a rating of meets standards.  
Lastly, there was information missing that he provided to his 
rater to be included in the contested report.

He appealed to the Evaluation Reports Appeal Board (ERAB) to 
remove or revoke the contested report.  The ERAB denied his 
request indicating he did not provide sufficient evidence to 
support his allegations for removal of the contested report.

He further believes since his records have been amended to remove 
the unsatisfactory fitness assessment and a Letter of Reprimand 
(LOR), the contested report should be removed.  With the removal 
of the unsatisfactory assessment there is no basis for the mark 
down for failing fitness standards.

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


STATEMENT OF FACTS:

On 3 Dec 93, the applicant commenced his enlistment in the Regular 
Air Force.

On 21 Jun 13, the applicant participated in a FA, attaining an 
overall composite score of 72.78, which constituted an 
“unsatisfactory” assessment.  A composite score of 75.00 is 
required for a “satisfactory” assessment.

On 2 Aug 13, the contested EPR was referred upon the applicant for 
unsatisfactory ratings and comments regarding the applicant’s FA 
failure and  conviction by a civilian court with a fine.

The applicant filed an appeal through the ERAB.  However, the 
applicant’s case was closed due him failing to provide additional 
supporting documentation.

On 24 Mar 14, AFPC/DPSIM notified the applicant that the 21 Jun 13 
fitness assessment had been removed from the Air Force Fitness 
Management Systems (AFFMS).

On 12 Apr 14, the Letter of Reprimand related to his FA failure, 
dated 2 Jul 13, and his placement on the control roster was 
removed from his Unfavorable Information File by direction of the 
commander.

On 30 May 14, the applicant was furnished an under other than 
honorable conditions discharge, with a narrative reason for 
separation of “Misconduct (Civil Conviction)” and was credited 
with 20 years, 5 months, and 28 days of active service.   


AIR FORCE EVALUATION:

AFPC/DPSID recommends denial indicating there is no evidence of an 
error or an injustice.  The applicant believes the comment on the 
contested EPR relating to his civil conviction and fine are 
prohibited by the AFI and should have only related to conduct or 
behavior that resulted in the punishment.  He notes paragraph 
1.12.7.3 states “punishment received as a result of administrative 
or judicial action is prohibited.  Restrict comments to the 
conduct/behavior that resulted in the punishment and the type of 
administrative or judicial action taken (i.e., Article 15, LOR, 
LOC, etc.).”  The applicant has misinterpreted this paragraph 
because it relates only to administrative or judicial punishment.  
The governing AFI makes no mention of a civilian conviction being 
prohibited.  The applicant further contends mentioning his 
behavior is not mandatory, but only encouraged on evaluation 
reports.  Actually evaluators are obliged to consider such 
incidents, their significance, and the frequency with which the 
incidents occurred in assessing performance and potential.  In 
fact, the AFI encourages the use of comments relating to the 
individual being found guilty, pled guilty or no contest, of a 
reportable civilian offense.  The applicant was found guilty in a 
civilian court.  He has made no attempts to justify his actions or 
provide any evidence showing the comments on contested report were 
inaccurate or unjust.  The inclusion of the referral comment on 
the contested report was appropriate and within the rater’s 
authority to document the incident.  Moreover, a final review of 
the contested report was accomplished by the additional rater and 
subsequent agreement by the reviewer served as a final “check and 
balance” in order to ensure the report was given fair 
consideration in accordance with all applicable Air Force policies 
and procedures.

The applicant further alleges he did not receive midterm feedback 
and that he was not advised on the areas he needed improvement.  
While current Air Force policy requires performance feedback for 
personnel, a direct correlation between information provided 
during feedback sessions and the assessments on evaluation reports 
does not necessarily exist. For example, if after a positive 
feedback session, an evaluator discovers serious problems, the 
evaluator must record the problems in the evaluation report even 
when it disagrees with the previous feedback.  There may be 
occasions when feedback was not provided during a reporting 
period.  Lack of counseling or feedback, by itself, is not 
sufficient to challenge the accuracy or justness of a report.  
Evaluators must confirm they did not provide counseling or 
feedback, and that this directly resulted in an unfair evaluation.  
Specific information must be provided about the unfair evaluation 
so the Board can make a reasoned judgment on the appeal.  Finally, 
every airman knows the existing standards for indebtedness, 
weight, fitness, etc.  Lack of counseling in these areas provides 
no valid basis for voiding a report.

The applicant also alleged that while signing the report, he was 
not able to check “no” indicating he did not receive feedback.  
According to the governing AFI the ratee’s signature in the 
acknowledgment block does not constitute concurrence or 
nonconcurrence of the content or rating on the evaluation, it is 
an acknowledgement of receipt.

The applicant believes the contested report unfair and not an 
accurate assessment of his performance.  However, the applicant 
has failed to provide any evidence to substantiate the contested 
report was rendered unfairly or unjustly.  Other than his own 
assertions, he has not provided any evidence to substantiate his 
allegations.  The Board works under the assumption that evaluation 
reports are accurate and objective.  When a report is accepted for 
file, only strong evidence to the contrary will warrant removal 
from a service member’s record.  Furthermore, it is important to 
hear from the rating chain, not necessarily for support, but for 
clarification/explanation.  The applicant has not provided any 
information or support from his rating chain regarding the 
contested reports.  Without documentation from the rating chain, 
it must be concluded that the report is accurate as written.  Air 
Force policy is an evaluation report is considered to represent 
the rating chain’s best judgment at the time it is rendered.  
Furthermore, 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 and 
he has not provided any evidence to show the contested report was 
unjust or inaccurate.

The applicant further requested to have the mark down rating for 
failing his fitness assessment removed based on the memorandum 
from his wing commander removing the contested fitness failure.  
AFPC/DPSIM provided notification stating the contested fitness 
assessment was removed from the AFFMS, therefore, the mention of 
it on the contested report is inappropriate and should be amended 
to reflect “meets” as his previous fitness assessment was 
satisfactory. 

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes virtually every point made by the OPR and 
argues while the ERAB notes the AFI was referencing administrative 
or judicial punishment, it makes no mention of a civilian 
conviction.  The reference is vague and leaves the door open to 
interpretation.  A conviction in a civilian court of law is a 
judicial action.  The AFI reference does not indicate whether it 
has to be military or civilian judicial action.  Also, the AFI 
makes no reference about civilian convictions being prohibited.  
He was not stating the conviction was prohibited, but rather the 
underlying punishment stated in the comment was prohibited.  The 
rater's comment is in error and needs to be voided.  The Texas 
State First Court of Appeals has ruled the penal code he received 
his civilian conviction for is unconstitutional.  He is appealing 
his civilian conviction and once it is finalized, he will seek 
additional action to further correct his military records.

He contested that he did not receive a midterm feedback and that 
he could not check "no" in Section IX, Ratee's Acknowledgement on 
the contested report.  The "yes" block was prefilled in by the 
reporting officials when he received the report for his signature.  
Therefore, since it was prefilled and he was unable to check “no” 
this should be considered as he did not receive all required 
feedback.

He has provided factual evidence to the ERAB and has been accused 
of using his own opinion when he submitted his application.  The 
ERAB is using its opinion in stating he did not provide any 
substantiating documents or evidence to contest the report in 
question.  They also used their opinions in their interpretation 
of the AFIs.  He has provided documentation showing the 
information on the contested report is not accurate.  One of the 
Air Force core values is integrity and within integrity is 
honesty.  Having this contested report with false information in 
his records without being corrected is not being honest and 
therefore not following the core values that the Air Force is must 
abide by.

The applicant’s complete response is attached at Exhibit E.


THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing 
law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate 
the existence of an error or injustice to warrant partial relief.  
While the applicant makes a variety of arguments in support of his 
request that the contested enlisted performance report (EPR) be 
declared void and removed from his records, we do not find the 
applicant’s arguments and evidence presented sufficient for us to 
recommend granting complete relief.  The applicant’s principal 
argument seems to be that the EPR should be removed because it 
contains a prohibited comment regarding the punishment he received 
as a result of his civil court conviction.  We note the governing 
AFI allows for comments on performance reports relating to an 
individual being found guilty, plead guilty or no contest, but 
does not allow the comments to reflect the type of punished 
received as a result of an administrative or judicial action.  
While the office of primary responsibility indicates that the 
prohibition against these comments do not relate to a civil court 
conviction, our review of the AFI reveals that it is silent on 
whether or not comments related to the punishment received from a 
civilian court conviction are permissible.  While we believe it 
was appropriate for the rater to comment on the applicant’s civil 
conviction on the contested report, given the fact that the AFI 
does not indicate that different rules apply when the matter 
pertains to a civilian judicial action, we believe the contested 
comment about the punishment received was not in compliance with 
the noted provisions of the AFI.  Therefore, while the applicant 
would argue that it would be appropriate to declare the report 
void and remove it from his records, we believe that it would be 
more appropriate to amend the contested comment to remove any 
mention of the punishment that was the result of the civilian 
conviction.  In our view, this constitutes full and fitting 
relief.  As for his request related to the referral rating and 
comments regarding the failed fitness assessment (FA), we note 
that since AFPC/DPSIM has administratively removed the contested 
FA from the Air Force Fitness Management System (AFFMS), there is 
no longer a basis for the referral comments or rating regarding 
the now removed FA.  Accordingly, rather than remove the report, 
we conclude that it would be appropriate to amend the EPR to 
remove the comment and change the rating in this section to 
“Meets” standards as recommended by the Air Force OPR.  Finally, 
as for the applicant’s argument that the EPR should be declared 
void because he was not provided midterm feedback and that he was 
not able to check “no” in ratee’s acknowledgement, we note 
according to Air Force policy, the lack of counseling or feedback, 
by itself, is not sufficient to challenge the accuracy, validity 
or justness of a report and that the ratee’s signature does not 
constitute concurrence or nonconcurrence of the content or rating 
on the report, it only acknowledges receipt.  Accordingly, we 
recommend the applicant’s records be corrected to the extent 
indicated below. 


THE BOARD RECOMMENDS THAT:	

The pertinent military records of the Department of the Air Force 
relating to APPLICANT be corrected to show the Enlisted 
Performance Report, AF Form 910, rendered for the period 
1 March 2013 through 2 August 2013, be amended in Section III, 
Performance Assessment as follows:

	a.  Block 2. Standards, Conduct, Character & Military 
Bearing, by amending the comment “Convicted in civilian court of 
law for online solicitation of a minor—received 10 years’ 
probation & 10K fine,” to “Convicted in civilian court of law for 
online solicitation of a minor”

	b.  Block 3. Fitness, be changed to reflect “Meets,” rather 
than “Does Not Meet” and the comment “member failed Air Force 
Physical Fitness Test composite score” be removed.


The following members of the Board considered AFBCMR Docket Number 
BC-2014-00308 in Executive Session on 27 Jan 15 under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

All members voted to correct the records as recommended.  The 
following documentary evidence pertaining AFBCMR Docket Number BC-
2014-00308 was considered:

	Exhibit A.  DD Form 149, dated 17 Jan 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSID, dated 11 Apr 14.
Exhibit D.  Letter, SAF/MRBR, dated 28 Jul 14.
Exhibit E.  Letter, Applicant, dated 28 Nov 14.



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