RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-01308

						COUNSEL:  NONE

						HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

His Enlisted Performance Report (EPR) rendered for the period 
19 Nov 96 through 9 Sep 97 be removed from his records.


APPLICANT CONTENDS THAT:

The report in question should be removed based on his 31 May 97 
acquittal for driving under the influence (DUI).  In 1998 he 
applied to have the contested report removed from his records but 
was unsuccessful.

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


STATEMENT OF FACTS:

On 1 Nov 83, the applicant commenced his enlistment in the Regular 
Air Force.

The applicant’s EPR profile as a TSgt is listed below:

Period Ending		   Overall Evaluation
	 15 Jan 96				5
	 18 Nov 96				5
	* 9 Sep 97				4
	  9 Sep 98				5
	  9 Sep 99				5

*Contested Report

According to documentation provided by the applicant on 8 Aug 97, 
he received a Judgment of Dismissal from the 26th Judicial 
District Court of Bossier Parish, Louisiana for his 31 May 97 DUI.

On 1 Nov 11, the applicant was honorably retired and was credited 
with 28 years of active service.   

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’s request was not submitted in a timely matter.  The 
applicant did not file an appeal through the Evaluation Report 
Appeals Board (ERAB).  The report in question has been a matter of 
record for over 17 years.  The test to be applied is not merely 
whether the applicant discovered the error within three years, but 
whether through due diligence, he could or should have discovered 
the error.  The applicant waited 17 years to file this appeal and 
offered no justification for the extensive delay.  As a result of 
this very long delay, the Air Force no longer has documents on 
file (i.e. Base Personnel Information File, Unfavorable 
Information File, control roster, letter of reprimand, etc.), 
memories have either faded or are not available, and these factors 
seriously complicate any ability to determine the merits of the 
applicant's request.  In short, the Air Force asserts that the 
applicant's unreasonable delay regarding a matter dating back 17 
years has greatly complicated its ability to determine the factual 
merits of the applicant's position.

According to 36-2406, Officer and Enlisted Evaluation System, 
paragraph A2.4., Time Limit Waivers, The applicant can request a 
waiver of the 3-year time limit by citing unusual circumstances 
that prevented filing the appeal in a timely manner.  However, 
ratees are responsible for reviewing their records at least 
annually for accuracy and the board should consider the due 
diligence of the applicant to apply for correction.  Applications 
that do not include a waiver will be returned without action.  
Grounds for a waiver do not include: Failing to understand the 
appeals process; being discouraged from appealing by superiors, 
peers, or counselors; failing to understand how serious an impact 
an evaluation could have on your career in later years; not 
reviewing your records during the intervening years.  The 
applicant has not provided a convincing circumstance that would 
have prevented him from submitting the application in a timely 
manner and although the AFBCMR is not governed by AFI-36-2406, we 
would recommend the denial based on timeliness alone and urge the 
AFBCMR to come to the same conclusion.

The applicant contends that the contested EPR is unjust based on 
the dismissal of a 31 May 1997 DUI charge and therefore the EPR 
should be removed.  Upon reviewing the contested EPR, there is no 
mention of a DUI by his evaluators, but rather mention an 
"incident resulting in revocation of base driving privileges, 
member worked hard to correct the behavior and remain an asset to 
the organization."  Although the applicant provided court 
documents, this document states "the defendant pled guilty to this 
misdemeanor… which validates the comment on the evaluation.  It 
appears the applicant pled guilty to the DUI offense and was 
placed on a probationary period.  The applicant successfully 
completed the probationary period and the court "set aside" the 
conviction; however, this does not mean the "revocation of base 
privileges" did not occur during the reporting period and 
therefore affected the applicant's duty performance. The applicant 
has not provided any substantial evidence which indicates the 
evaluators of the contested reports wrote an unfair or impartial 
EPR and only presented his personal view of events.  Furthermore, 
a final review of the contested evaluation was accomplished by the 
endorser and a subsequent agreement by the 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.  Based upon the evidence provided, DPSID concludes that the 
contested EPR is accurate and was completed in accordance with all 
applicable Air Force policies and procedures.

Lastly, the applicant has not provided sufficient documentation or 
evidence to substantiate his assertions that the contested report 
was 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.  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.  The applicant has not substantiated that the 
contested report was not rendered accurately and in good faith by 
all evaluators based on knowledge available at the time.

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 15 May 15, 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 exhausted all remedies provided by existing 
law or regulations.

2.  The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file.

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 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.  
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-2014-01308 in Executive Session on 16 Jun 15, under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2014-01308 was considered:

	Exhibit A.  DD Form 149, dated 27 Mar 14, w/atch.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSID, dated 16 Mar 15.
	Exhibit D.  Letter, SAF/MRBR, dated 13 May 15.