RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-00528 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His referral Officer Performance Report (OPR) covering the period 25 Aug 10 through 7 Mar 11 be declared void and removed from his records. 2. He be retroactively promoted to the rank of lieutenant colonel (Lt Col) in accordance with the results of the CY10A Lt Col Line Central Selection Board. ________________________________________________________________ APPLICANT CONTENDS THAT: In 2011, his leadership unjustly and improperly punished him for an incident which occurred two years and two assignments prior, resulting in excessive consequences far beyond what was intended or justified, even though his leadership at that time had taken what they deemed to be the appropriate punitive measures. In Mar 11, he received an untimely Letter of Reprimand (LOR) with a Unfavorable Information File (UIF) for a Mar 09 incident in which he was arrested for driving under the influence (DUI) from a leadership chain that was not his leadership at the time of the incident. The LOR w/UIF resulted in his receiving a referral OPR for the reporting period 25 Aug 10 through 8 Mar 11, even though the incident was well outside of the reporting period. AFI 36-2406, Officer and Enlisted Evaluation System, states a performance report will not include events from the previous rating period if they were known to and were considered by the previous evaluators. When he was arrested, he immediately reported the DUI to his leadership, who took what they felt were the appropriate actions. The administrative and punitive actions taken were untimely and impermissible by the regulation. The untimely administrative actions taken in 2011, to include the removal of his name from the Lt Col promotion list, were not made for the purpose of counseling nor to correct improper behavior as these tools are intended, rather they were improperly used for the sole purpose of post hoc record keeping. AFI 36-2406 directs a rater to consider the significance and frequency of incidents (including isolated instances of poor or outstanding performance) when assessing total performance. His supervisors in 2009 were fully aware of the details surrounding his arrest and they assessed his overall performance. They continued to support him for a Definitely Promote (DP) for promotion to Lt Col, and pushed him for attendance at Intermediate Developmental Education (IDE) where he achieved straight “As” and was a distinguished graduate. His division leadership in 2011 nominated him as Field Grade Officer (FGO) of the Quarter three times, and he was recognized as in the top 10% of FGOs with whom his rater had worked. Even on his referral OPR, his leadership continued to endorse him for Command, attendance at Senior Developmental Education (SDE), and leadership roles. Repeating the assessment of his error and increasing his punishment two assignments later is an injustice. It is clear the purpose of the LOR and administrative punishments was not to correct behavior but simply to offer tardy documentation. His records are now incomplete and likely misleading for a subsequent promotion board. The same authority that removed his line number to Lt Col, also removed his LOR and UIF, eliminating his lengthy response including the fact that he immediately reported the incident. While he is happy the inappropriate items are removed from his record, all that now remains is the referral OPR that obliquely references the LOR for his DUI and failing to report his arrest to security. The collateral consequences are unjust because they were greater than intended. His leadership in 2009 did not intend to inhibit his promotion. However, had they inserted derogatory information into his subsequent OPR, he still would have had the opportunity to meet the in-the-zone (IPZ) Lt Col Selection Board with a strong overall record. The 2011 propriety action removing him from the promotion list not only went against the intent of his leadership at the time, but effectively removed his promotion entirely, and put his future retention in the Air Force in question, delivering a harsher punishment than would have been possible at the time of the incident. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant serves on active duty in the rank of Major. On 28 Mar 09, the applicant was arrested for driving under the influence (DUI). He immediately reported the DUI arrest to his leadership and was verbally counseled. The applicant did not personally report the arrest to the appropriate security office, which was the proper procedure for that particular organization. His leadership did not make the incident an official matter of record by formally documenting it in his military record. On 18 Aug 09, the applicant was convicted of DUI by a civilian court. On 8 Mar 10, the applicant was subsequently selected for Lt Col on the Calendar Year (CY) 2010A Lt Col Line Central Selection Board, with a projected pin-on date of 1 May 11. In Sep 10, while filling out security paperwork for a Special Access Program at a new assignment, the applicant properly documented the 2009 DUI conviction. On 25 Jan 11, the applicant’s current commander issued him a LOR for the DUI arrest from Mar 09, and for failing to report the DUI arrest to his security office at the time. Based upon the LOR, the applicant received the contested referral OPR. The referral bullet read “Received LOR 25 Jan 11 for DUI of alcohol back in 2009 and failing to report arrest to F-35 JPO Security Office.” On 8 Apr 11, the applicant’s commander initiated a promotion propriety action (PPA) to remove the applicant’s name from the Lt Col promotion list due to his civilian conviction for DUI. The action was reviewed and determined to be legally sufficient on 21 Apr 11. On 20 Jun 11, the Secretary of the Air Force approved the removal of the applicant’s name from the Lt Col promotion list. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility, which are included at Exhibits C, D, E, and F. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIM recommends denial of the applicant’s request to remove his LOR. The applicant was unable to provide a copy of the LOR to determine if it was issued correctly. The use of the LOR by commanders and supervisors is an exercise of supervisory authority and responsibility directed by AFI 36-2907, Unfavorable Information File Program. A complete copy of the AFPC/DPSIM evaluation is at Exhibit C. AFPC/DPSOO recommends denial of the applicant’s request to be reinstated on the Calendar Year (CY) 2010A Lt Col Line Central Selection Board promotion list. The applicant was selected for promotion by the CY10A Lt Col Line Central Selection Board which convened on 8 Mar 10. The applicant’s projected promotion date was 1 May 11. AFI 36-2501 states commanders question promotion when the preponderance of evidence shows the officer has not met the requirement for exemplary conduct set forth in Title 10, U.S.C. 8583 or is not mentally, physically, morally, or professionally qualified to perform the duties of the higher grade. Air Force policy states that formal rules of evidence do not apply to a promotion propriety action. In addition, there is no time line as to when the action should be initiated as long as it is prior to the pin-on date. The removal action was reviewed by base and Air Force legal offices and the action was found to be legally sufficient to warrant the action taken. A complete copy of the AFPC/DPSOO evaluation is at Exhibit D. AFPC/JA recommends approval of the applicant’s request to void and remove his LOR, referral OPR, and to reinstate him on the Lt Col promotion list. The applicant was arrested for driving while intoxicated in the process of driving an intoxicated co- worker home after a unit function. Immediately after the event, the applicant reported the incident to his chain of command. His leadership on 2009 chose to counsel the applicant for his misconduct, believing that this was an isolated incident-very much out of character for the applicant—that did not warrant further action. In fact, that command leadership subsequently recommended the applicant for promotion with a “Definitely Promote” recommendation. The adverse actions taken in 2011 were in fact technically and legally permissible. Nevertheless, the applicant is supported in his submission by letters from a Navy Commander who was in the applicant’s chain of command at the time of the incident, and the Air Force (now Lt Col) commander who was responsible for the action taken in 2009. They both confirm that the applicant reported the incident to his immediate chain of command immediately after it occurred, that he learned from his mistake, and that he continued to perform above his peers thereafter. The commander stresses in the strongest terms his belief that the applicant’s capacity to serve as a Lt Col was not compromised by the 2009 DUI. Under all the unique circumstances in this case, the actions taken in 2011 were inappropriate and unjust. The command entity that was in the best and proper position to take action in this case was the applicant’s commanders and supervisors in place at the time the incident occurred. Acting fully within their discretion, they elected not to elevate what they viewed to be an uncharacterized and isolated incident to the level of a written reprimand and referral OPR. Ultimately, it was their decision to exercise their judgment that way and it was not appropriate or justified for a command—two assignments later—to second guess that command decision-making and substitute their judgment for commanders who were there at the time and were in a position to best understand the circumstances and nuances of what happened. Moreover, to do otherwise thwarts the finality of command decision-making that is an integral part of military command and discipline. It is improper to sanction a successor commander’s second guessing of a previous discretionary command action, particularly when, like here, the overall circumstances do not suggest that the original action was totally improper and requires reversal. The totality of the unique circumstances in this case has created an injustice that demands correction of the applicant’s record. A complete copy of the AFPC/JA evaluation is at Exhibit E. AFPC/DPSID recommends approval of the applicant’s request to void and remove his referral OPR. The applicant contends that being given an LOR and its reporting on the referral OPR by subsequent leadership two years later was untimely, inappropriate for their purpose, and was accomplished for the sole purpose of post hoc record keeping. AFPC/JA opined in this case that the actions taken by the rating chain in choosing to hold the applicant accountable a second time, and years after the originating incident, and report of the incident in an OPR, thereby causing it to be a referral is an injustice. We agree with this assessment. A complete copy of the AFPC/DPSID evaluation is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant repeats his initial contentions and supports each contention with quotes from his letters of recommendation and from the Air Force advisories. In addition, in response to the AFPC/DPSOO advisory, he responds that removal of the referral OPR is critical. The AFPC/JA legal advisory states “the actions taken by the (2011) rating chain in choosing to hold the applicant accountable a second time, resurrecting the offense years later, and initiate an LOR to be reported on a referral report constitutes an injustice.” A complete copy of the applicant’s response, with attachments, is at Exhibit H. ________________________________________________________________ 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. After a thorough review of the evidence of record and the applicant’s complete submission, we believe a preponderance of the evidence establishes sufficient doubt as to the propriety of the applicant’s referral OPR to warrant granting relief. While we note the comments of AFPC/DPSOO, we agree with the opinion and recommendation of AFPC/JA and adopt its rationale as the basis for our determination that the applicant has been the victim of an injustice. Specifically, we note at the time of the incident the applicant immediately reported his error to his leadership, who were in the best and proper position to take action. They took the disciplinary actions they felt were appropriate at the time. We do not believe it was appropriate or justified for a command—two assignments later—to second guess the original commanders’ decision-making and substitute their judgment for commanders who were there at the time and were in a position to best understand the circumstances and nuances of what happened. Further, by delaying the punishment for the applicant’s offense for two years, any opportunity the applicant had to recover from his error, which appeared to be the earlier commander’s intent, was effectively removed. Accordingly, we believe the ensuing actions rendered upon the applicant (Letter of Reprimand, referral OPR, and the PPA which removed him from the Lieutenant Colonel Promotion List) were completely unjustified. Therefore, we recommend the applicant’s record be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that: a. Any and all references to the 2009 Driving Under the Influence (DUI), be, and hereby are, declared void and removed from his records. b. The referral Officer Performance Report (OPR) rendered for the period 25 August 2010 through 7 March 2011 be, and hereby is, declared void and removed from his records. c. The Record of Promotion Propriety Action (PPA), dated 1 April 2011, and all associated documents, be, and hereby are, declared void and removed from his records. d. Upon Senate confirmation, he be promoted to the rank of lieutenant colonel (O-5) effective and with a date of rank of 1 May 2011. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-00528 in Executive Session on 29 Jan 13, 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 to AFBCMR Docket Number BC-2012-00528 was considered: Exhibit A. DD Form 149, dated 23 Jan 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIM, dated 16 Mar 12. Exhibit D. Letter, AFPC/DPSOO, dated 30 May 12. Exhibit E. Letter, AFPC/JA, dated 8 Jun 12. Exhibit F. Letter, AFPC/DPSID, dated 3 Jul 12. Exhibit G. Letter, SAF/MRBR, dated 13 Nov 12. Exhibit H. Letter, Applicant, dated 4 Jul 12, w/atchs. Panel Chair