ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-01611 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her Officer Performance Report (OPR), rendered for the reporting period 7 Jun 07 through 9 Nov 07, be declared void and removed from her military personnel records. ________________________________________________________________ RESUME OF CASE: On 24 Mar 10, the Board considered and denied applicant’s original request to void the contested OPR and amend her Promotion Recommendation Form (PRF). In the initial case, she contended that contested OPR was unjust because at the time it was prepared, it did not comply with multiple provisions of the governing instruction and as a result, she did not receive fair consideration for a “Definitely Promote” (DP) recommendation on her PRF. If she had received a DP recommendation, she would have been selected for in-residence Senior Developmental Education (SDE). While the Board did not find the evidence sufficient to void the contested report, it did recommend amending the additional rater comments in the contested OPR. For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit I (with Exhibits A through H). On 3 Nov 10, the Board considered and denied applicant’s request for reconsideration of her application indicating that her request did not meet the criteria for reconsideration by the Board. By law, reconsideration is authorized only where newly discovered relevant information has been presented that was not available when the application was originally submitted and the Board determined that the applicant had not submitted new and relevant information meeting the criteria for reconsideration (Exhibit J). By virtue of a DD Form 149, dated 24 Oct 12, with attachments, the applicant requests reconsideration of her case, indicating that a miscommunication with the AFBCMR staff precluded her from being able to provide comments or file a Complaint Pursuant to Article 138, UCMJ in regard to the Command Directed Investigation (CDI) that was used by the Board to make a determination in her case. Because she was not aware that the Board was going to use the CDI as part of their decision process, she was untimely in filing her Article 138, UCMJ Complaint. On 8 Oct 11, she filed an Application for Redress Under Article 138, UCMJ challenging the validity of the CDI and requesting a statement of support to have her OPR removed from her permanent record. On 10 Dec 11, the 12th Air Force Commander denied the applicant’s request indicating that her request was untimely and also finding the CDI to be thorough and legally sufficient. He found no evidence that would justify granting relief in her case and recommended she address her concerns with the AFBCMR. In support of her request, the applicant provides an expanded statement, a copy of her Article 138, UCMJ Complaint, various supporting statements and emails pertaining to the CDI, and a copy of the original AFBCMR Record of Proceedings and Directive. The applicant’s complete submission, including attachments, is at Exhibit L. ________________________________________________________________ THE BOARD CONCLUDES THAT: After again reviewing this application and the evidence provided in support of her request, we remain unconvinced the applicant has been a victim of an error or injustice. We have previously determined the applicant’s request to void the contested OPR was not warranted and we still find no basis to grant the relief requested. The applicant’s contentions are duly noted; however, we do not find her latest submission sufficient to persuade us that she is the victim of an error or injustice. While the applicant makes a variety of arguments intended to impugn the actions of her chain of command and the efforts of the investigating officer assigned to conduct the objectionable CDI, much of what she provides in support of her instant request consists of additional arguments on the evidence of record and documents that this Board has already considered in the previous iterations of this case. As the applicant has been previously advised, reconsideration is only authorized when new evidence is presented that was not available when the initial application was originally filed. However, the vast majority of the new evidence the applicant provides consists of supporting statements from several former colleagues and subordinates attesting to her positive attributes as an officer and commander and their bewilderment at the outcome of the investigation. However, we do not find the opinions by personnel who were neither members of the applicant’s chain of command, nor involved in the conduct of the investigation, rendered years after the events in question, sufficient to undermine the results of the CDI. Furthermore, while the applicant argues that an alleged mis-communication with the Board staff precluded her from reviewing the CDI or taking timely action to file an Article 138 complaint, we do not find these assertions sufficient to conclude that her ability to prove that she was the victim of an error or injustice was somehow compromised. In this respect, we note that our prescribing directive clearly indicates that applicants will have access to all records considered by the Board, except those classified or privileged. The CDI Report is a privileged document, which the Board is not the custodian of, and falls under the exception to this provision. Additionally, according to documentation provided by the applicant, the 12th Air Force Commander, when reviewing her Article 138 complaint, took the added step of thoroughly reviewing the CDI Report in question and concluded that it was both thorough and legally sufficient. Therefore, in view of the above, we find no basis upon which to recommend favorable consideration of the applicant’s request. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of probable material error or injustice; 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-2009-01611 in Executive Session on 19 Sep 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit I. Record of Proceedings, dated 24 Mar 10, w/Exhibits A through H. Exhibit J. Letter, Counsel, dated 15 Jun 10. Exhibit K. Letter, AFBCMR, dated 3 Nov 10. Exhibit L. DD Form 149, dated 24 Oct 12, w/atchs. Panel Chair