RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-00825

					COUNSEL:  NONE

		HEARING DESIRED:  NO 


APPLICANT REQUESTS THAT:

1.  He be medically discharged.

2.  His Referral Officer Performance Report (OPR) closing 29 Jun 
10 be removed.

3.  He be reinstated and his eligibility for the Calendar Year 
2010 (CY10) Reduction-In-Force (RIF) board be removed.

4.  His separation code of LCC (RIF) be removed.

5.  A Medical Evaluation Board (MEB) and Physical Evaluation 
Board (PEB) be ordered to determine if the reason for separation 
should have been a disability separation rather than RIF.

6.  He be placed back in an Assignment Availability Code (AAC) 
of 17 and rendered ineligible for the CY10 RIF board.


APPLICANT CONTENDS THAT:

He believes a review of the procedures used by the wing during 
the nine-month investigation which led to his dismissal through 
the CY10 RIF board. 

His 4th Amendment rights and guidance from the Secretary of the 
Air Force (SECAF) in AFI 36-2406, Officer and Enlisted 
Evaluation Systems and AFI 36-3003, Military Leave Program, were 
violated.

His should not have been eligible for the CY10 RIF board based 
on the ongoing investigation, In Accordance With (IAW) Personnel 
Service Delivery Memorandum (PSDM) 10-20, Section 9.  Charges 
were never preferred against him and his command requested and 
received grand jury subpoenas from the civil court which was 
used to open an investigation.

He was moved in and out of AAC code 17 multiple times as a 
convenience of his command to ensure that his assignment was 
cancelled so he would be eligible for the CY10 RIF board.

Unsupported and unreliable allegations were noted in his 
contested report, which also noted that he was Absent Without 
Leave (AWOL); however, these comments were simply not true and 
unsubstantiated.

The applicant provides no rationale as to why his failure to 
timely file should be waived in the interest of justice.  

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


STATEMENT OF FACTS:

On 5 Jun 04, the applicant was commissioned as a second 
lieutenant.  On 4 Jul 04, the applicant entered active duty in 
the Regular Air Force.  

The applicant received a referral report rendered for the period 
11 Sep 09 – 29 Jun 10.  The report cited several referral 
comments to include: violating AFI 36-3003; not in the local 
area upon completion of paternity leave and start of annual 
leave; falsifying an official statement; being engaged in an 
unprofessional relationship; disobeying a lawful order and being 
AWOL.

On 1 Mar 11, the applicant was honorably released from active 
duty with a reason for separation of reduction in force, in the 
grade of captain.  He was credited with 6 years, 7 months, and 
28 days of active service during this period.   


AIR FORCE EVALUATION:

AFPC/DPSID recommends denial of the applicant’s request to 
remove the referral report closing 29 Jun 10.  DPSID based their 
findings on a four year delayed request; insufficient evidence 
and the presumed legitimacy of the original crafting of the OPR. 
The applicant has not provided evidence to show that the report 
was unjust or inaccurate as written.

The applicant received a referral OPR for violating AFI 36-3003; 
not in the local area upon completion of paternity leave and 
start of annual leave; falsifying an official statement; being 
engaged in an unprofessional relationship; disobeying a lawful 
order and being AWOL.  Evaluators are obliged to consider such 
incidents, their significance, and the frequency with which they 
occurred in assessing performance and potential.  Only the 
evaluators know how much an incident influenced the report.  In 
Accordance With (IAW) AFI 36-2406, paragraph 1.3.1., evaluators 
are strongly encouraged to comment in performance reports on 
misconduct that reflects a disregard of the law, whether civil 
law or the Uniform Code of Military Justice (UCMJ), or when 
adverse actions such as Article 15, Letters of Reprimand (LOR), 
Admonishment (LOA), or Counseling (LOC), or placement on the 
Control Roster (CR) have been taken.  The rating chain 
appropriately chose to comment and document on the underlying 
wrongdoing, which caused the report to be referred to the 
applicant for comments and consideration to the next evaluator. 
The applicant provided no evidence within his case to show that 
the referral comment on the OPR was inaccurate or unjust; 
therefore, we contend that the inclusion of the referral comment 
on the OPR was appropriate and within the evaluator's authority 
to document given the incident.  Moreover, a final review of the 
contested evaluation was accomplished by the additional rater 
and a subsequent agreement by the reviewer/commander served as a 
final "check and balance" in order to ensure that the report was 
given a fair consideration in accordance with the established 
intent of the current Officer and Enlisted Evaluation System in 
place.  We conclude that the contested report was proper and 
completed in accordance with all applicable Air Force policies 
and procedures.  Consequently, we find this element of the 
applicant's appeal to be without merit.

In summary, DPSID does not believe the applicant has provided 
sufficient substantiating documentation or evidence to prove his 
assertions that the contested evaluations were rendered unfairly 
or unjustly, and has merely offered his view of events in the 
light that is most beneficial to him.  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 all the members of the rating chain-not only for support, 
but also for clarification/explanation.  The applicant has 
failed to provide any information from all the rating officials 
on the contested report.  It is determined that the report was 
accomplished in direct accordance with all applicable Air Force 
policies and procedures.  

The complete DPSID evaluation is at Exhibit C.

AFPC/DPAPP recommends denial of the applicant’s request to 
remove the AAC code 17.  DPAPP notes that after a review of the 
applicant’s military records, they could not determine at any 
time was he placed on an AAC code 17.  However, they did find 
that he was placed on AAC code 15, Court-Martial or Civilian 
Criminal Court and AAC code 21, Commander Directed Hold, from 
the available data.  Further, both AAC codes were applied 
properly to the applicant and neither exceeded the time limits 
of the AFI.  

The complete DPAPP evaluation is at Exhibit D.

AFPC/DPSOR recommends denial of a change to the separation code, 
narrative reason for separation and character of service.  DPSOR 
notes the procedures surrounding the applicant's separation were 
conducted in accordance with established directives and are 
correct as indicated on the applicant's DD Form 214.  DPSID 
found no evidence of an error or injustice in the applicant's 
discharge processing.

The applicant was in the rank of captain with a core Air Force 
Specialty (AFS) of 38F and a Total Federal Commission Service 
Date (TFCSD) of 2004, which made him eligible for the CY10 RIF 
board.  The applicant's record met the RIF board and he was not 
selected for retention.  The applicant was subsequently 
discharged with a Mandatory Separation Date (MSD) of 1 Mar 11 in 
accordance with the PSDM directive.  The base separations 
authority directed the applicant receive an honorable service 
characterization.  The RIF board convened and reviewed the 
applicant's entire record in accordance with established 
guidelines and procedures.  The applicant had the opportunity to 
submit a letter to the board to address any circumstances and/or 
highlight any accomplishments in his record.

The applicant contends that he was under investigation which 
made him ineligible to meet the CY10 RIF board.  This is an 
incorrect assessment.  PSDM 10-20, paragraph 9, states “Officers 
notified by their commander (verbally or in writing) that they 
are under investigation, pending administrative discharge or 
court-martial charges, on appellate leave, or UCMJ action is 
under consideration or pending are eligible.  However, UCMJ and 
administrative actions take priority over this program.  Once 
pending administrative, non-judicial and/or judicial actions are 
resolved, officers may subsequently be discharged from the Air 
Force IAW guidelines of this program.”  Therefore, the applicant 
remained eligible to meet the CY10 RIF board even if he had been 
under investigation.

The complete DPSOR evaluation is at Exhibit E.

The BCMR Medical Consultant recommends denial; noting the 
applicant has not met the burden of proof of an error or 
injustice that warrants the desired MEB/PEB review nor a change 
in established reason for discharge to medical.

In addressing the applicant’s implicit desire for a medical 
separation/retirement, the military Disability Evaluation System 
(DES), established to maintain a fit and vital fighting force, 
can by law, under Title 10, United States Code (U.S.C.), only 
offer compensation for those service incurred diseases or 
injuries which specifically rendered a member unfit for 
continued active service and were the cause for career 
termination; and then only for the degree of impairment present 
at the time of separation and not based on future occurrences or 
progression of disease.  

In the case under review, although the supplied record indicates 
the applicant was exposed to mortar fire during a deployment in 
2008 and experienced headaches, it could not be established that 
the applicant was unable to reasonably perform his military 
duties due to one or more medical conditions during his military 
service or at the time of his release from active duty order; as 
would be further documented in service treatment records, 
performance reports, and/or profile restrictions imposed 
prohibiting worldwide qualification.  Moreover, under paragraph 
E3.P3.3.4, Cause and Effect Relationship, “Regardless of the 
presence of illness or injury, inadequate performance of duty, 
by itself, shall not be considered as evidence of unfitness due 
to physical disability unless it is established that there is a 
cause and effect relationship between the two factors.  

Based upon the limited supplied service medical evidence, the 
Medical Consultant found no medical condition that established, 
[or should have], a cause and effect relationship with the 
termination of the applicant’s service.  Although the applicant 
has been assigned disability compensation for a number of 
illnesses or injuries by the Department of Veterans Affairs, 
again, none have been shown to have interfered with his military 
service to the extent, that warranted placement on Medical Hold 
for an MEB and processing through the DES.  

On the other hand, operating under a different set of laws 
(Title 38, U.S.C.), with a different purpose, the Department of 
Veterans Affairs (DVA) is authorized to offer compensation for 
any medical condition determined service incurred, without 
regard to [and independent of] its demonstrated or proven impact 
upon a service member’s fitness for continued service or 
narrative reason for release from military service; nor the 
intervening or transpired period since the date of separation.  
With this in mind, Title 38, U.S.C., which governs the DVA 
compensation system, was written to allow awarding compensation 
ratings for any condition with a nexus with military service.  
This is the reason why an individual can be found fit for 
release from active military service for one reason and yet 
sometime thereafter receive compensation ratings from the DVA 
for a conditions found service-connected, but which were not 
proven militarily unfitting during the period of active service, 
e.g., the applicant’s compensation for PTSD.  The DVA is also 
empowered to conduct periodic re-evaluations for the purpose of 
adjusting the disability rating awards (increase or decrease) as 
the level of impairment from a given service connected medical 
condition may vary (improve or worsen, affecting future 
employability) over the lifetime of the veteran.

The complete BCMR Medical Consultant evaluation is at Exhibit F.

AFPC/JA recommends denial.  JA notes the application was not 
filed within the requisite time limits, the applicant has 
offered no justification for his tardiness, and he has failed to 
establish proof of any error or injustice that would warrant 
excusing his untimeliness in the interest of justice.

First, the applicant has provided nothing to substantiate his 
claim that his 4th Amendment or other Constitutional rights were 
violated-either factually or in theory.  Second, he was clearly 
eligible to meet the CY10 RIF board; there was no authority at 
that time that would have excluded the applicant from 
consideration because he might have been under investigation.  
On the contrary, the governing PSDM 10-20 specifically stated in 
paragraph 9 that officers under investigation are still eligible 
to meet the board.  In addition, the applicant's various 
allegations regarding assignment codes are irrelevant to the 
legal sufficiency of his discharge; moreover, DPAPP has noted 
that all assignment codes applied to the applicant were proper.  
In its comprehensive advisory, DPSIDE has refuted all of the 
applicant's claims that his OPR and Promotion Recommendation 
Form (PRF) were not supported by reliable evidence or were 
otherwise in violation of the governing directive.  Among other 
things, they point out that the burden of proving error or 
injustice is on the applicant-and he offered no proof that the 
facts reported on these forms were inaccurate, or that anyone in 
his rating chain rendered these reports in bad faith.

Finally, applicant suggests that his discharge documents should 
be changed to reflect a separation due to medical disabilities 
rather than by RIF.  Alternatively, he requests that a PEB/MEB 
be ordered to determine if his discharge should be (or should 
have been) for medical disability rather than reduction-in-
force.  In a comprehensive advisory, the AFBCMR's Medical 
Advisor has thoroughly reviewed the applicant's medical record 
and found no evidence of any medical condition that would have 
rendered the applicant unfit for military duty.

The complete JA evaluation is at Exhibit G.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant notes that after reviewing the response from JA, 
he was not eligible to meet the CY10 RIF Board.  

In addition, he received an email from JA, which noted that; 
“You are correct.  We confused this with another case.”

He was governed under PSDM 10-20, in Mar 2010; as he was under 
investigation and was not eligible to meet the CY10 RIF Board.  

The applicant’s complete response, with attachments, is at 
Exhibit I.


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, the Air Force offices of primary 
responsibility (OPRs) and the AFBCMR Medical Consultant have 
provided an exhaustive review of the applicant’s issues and we 
are in agreement with their opinions and recommendation and 
adopt the rationale expressed as the basis for our conclusion 
the applicant has not been the victim of an error of injustice.  
In addition, while we cannot determine with any certainty, it 
appears the applicant may have received an earlier version of 
the PSDM for the CY10 RIF Board, which was later amended to 
state that members under investigation would be eligible for the 
CY10 RIF board.  However, based on the evidence provided by the 
applicant, prior to being considered by the RIF board, he was 
advised, through his chain of command, that Air Force Judge 
Advocates (AF/JA) office and the Secretary of the Air Force 
General Counsel (SAF/GC) had determined that members pending 
UMCJ action/under investigation/Court-Martial proceedings, etc., 
will not be restricted from consideration by the RIF board.  
Therefore, in the absence of evidence to the contrary, we find 
no basis to recommend granting the requested relief.


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-2014-00825 in Executive Session on 14 Apr 15 under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2014-00825 was considered:

	Exhibit A.  DD Form 149, dated 23 Feb 14, w/atchs.
	Exhibit B.  Pertinent Excerpts from Personnel Records.
	Exhibit C.  Letter, AFPC/DPSIDE, dated 3 Nov 14.
	Exhibit D.  Letter, AFPC/DPAPP, dated 21 Nov 14.
	Exhibit E.  Letter, AFPC/DPSOR, dated 3 Dec 14.
	Exhibit F.  Letter, AFBCMR Medical Consultant, 
	            dated 12 Dec 14.
	Exhibit G.  Letter, AFPC/JA, dated 30 Dec 14.
Exhibit H.  Letter, SAF/MRBR, dated 9 Jan 15.
Exhibit I.  Letter, Applicant, dated 25 Jan 15.