RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-01473 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His nonselection for promotion by a Special Selection Board (SSB) for the Calendar Year 2009C (CY2009C) Major Central Selection Board be voided. 2. The AF Form 709, Promotion Recommendation Form (PRF), from June 2011 be removed from his records. 3. His second non-selection for promotion to Major be removed from his records. 4. He be reinstated into the Air Force and granted a direct promotion to major with all back pay and allowances. ________________________________________________________________ APPLICANT CONTENDS THAT: In December 2007, he volunteered for a deployment to Kandahar Air Base. In early 2008, he filed equal opportunity (EO) and Inspector General (IG) complaints to stop the computer circulation of pornography by unit officers and enlisted members, as well as to investigate other systemic misconduct within the unit. In reprisal, he was branded as not a team player, uncooperative and ill-motivated. The EO and IG complaints resulted in a Commander-Directed Investigation (CDI) into the allegations of abuse of authority, intimidation, inappropriate use of government computers, dereliction of duty and harassment. While the CDI was pending, his rating officials, in reprisal, released him early from deployment and referred him for a mental health exam. The exam results were favorable to him as there was no finding of mental illness or personality disorder. He was returned to duty. On 31 March 2009, he received a referral officer performance report (OPR) for the period of 12 November 2007 through 27 September 2008. The additional rater completed her portion in November 2009. He filed an appeal through the Evaluation Report Appeals Board (ERAB) in September 2009. It was returned without action stating the OPR was not yet a matter of record. Despite the referral OPR not being a matter of record, the senior rater issued a “Do Not Promote” Performance Recommendation Form (PRF). In November 2009, the referral OPR and PRF were forwarded to the promotion board. In February 2010, he was non-selected for promotion to major by the CY09 Central Selection Board (CSB). In May 2010, he received two outstanding OPRs. In July 2010, he submitted ERAB #1 to void the referral OPR and request an SSB. While the ERAB was pending, he received a “Promote” PRF. On 30 September 2010, the ERAB approved his request to void the referral OPR and his case was forwarded for SSB consideration. However, ERAB #1 did not remove the “Do Not Promote” PRF referencing the referral OPR. An ERAB official suggested he request an amended ERAB. On 19 October 2010, the Air Force Personnel Center (AFPC) granted an SSB for CY09. On 29 November 2010, ERAB #2 voided the 2009 PRF. Through no fault of his own, he was prejudiced before the CY10 Major Board. The Board considered his 2010 “Promote” PRF. His supervisor told him that the referral OPR, that had not yet been voided, adversely affected the PRF narrative and the promotion recommendation. He was prevented from timely removing the referral OPR as it was not filed until over 20 months after its September 2008 close-out. In January 2011, the SSB reconsidered him for CY09. There was no PRF in his record prior to the SSB. The SSB could not look at the favorable OPR closing in May 2009 as it was delayed until March 2010 and not a matter of record before CY 2009. In May 2010, the CY10 Major Board nonselected him for promotion. On 1 June 2010, the SSB CY09 results were released and he was again, nonselected for major. As a two time nonselectee, he was scheduled to separate on 30 September 2011. The failure to provide the PRF, violated procedures for both regular promotion boards and SSBs. The SSB lacked the PRF which provided a performance based differentiation to assist the selection board. Therefore, results of the CY09 SSB that convened in January 2011 must be set aside. AFPC failed to coordinate with their subordinate AMC promotion officials. It was an AFPC promotion official that informed him to submit a letter to the SSB stating that his senior rater refused to rewrite the PRF. After the senior rater learned that the lack of a PRF may invalidate the 2011 SSB, he rewrote the PRF in June 2011. In mid-July, the ERAB returned his memo without action because it was not in effect a minor, administrative correction; rather, it constituted an appeal of the new PRF. In late July 2011, he again asked about the PRF. In August 2011, he began terminal leave. Remedy by the Board is available where the promotion process has proven unfair or unworkable, the error or unfairness for non- selection is identified and the officer is likely to have been promoted but for the error or unfairness. There is an AFBCMR case involving a Force Shaping Board process that was not fair or equitable because of an adverse retention recommendation form; similar to a PRF. The officer was reinstated without a relook SSB. The Board found there was a lack of fair and equitable consideration and that the adverse action was consistent with a retaliatory act for the officers filing of an IG complaint. The officer’s records were otherwise outstanding and she was granted direct reinstatement without an SSB. Letters of support have been provided from three lieutenant colonels and a GS-14, all within the intelligence career field. They independently reviewed his records and concluded that he would have received at the least a “Promote” PRF for CY09. They also concluded that he would have been promoted under the selection rate for “Promote” PRF’s which was 97 percent. This case has proven the remedial SSB process was unfair. Further the SSB proceedings are unworkable because the senior rater circumvented reaccomplishing the PRF by disguising the derogatory comments from the voided OPR. He requests the Board grants the relief requested. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Air Force who served from 27 September 2001 through 27 September 2011. On 21 October 2009, the AMW/IG received a complaint from the applicant alleging reprisal. The investigation found there was no abuse of authority and no reprisal. The allegation was dismissed. On 10 February 2010, ACC/IG responded to a complaint filed with SAF/IG in November 2009 alleging a cover-up by 9 AF/IG and the handling of the applicant’s concerns. A thorough review was conducted and it was determined his allegations were addressed in a fair and unbiased manner. On 22 February 2010, HQ AMC/IG notified the applicant that they conducted an investigation into his allegations of reprisal and found that the responsible management official did not reprise against him, nor did they abuse their authority. As a result, they recommended his allegations be dismissed. The remaining relevant facts pertaining to this case, extracted from the applicant’s master personnel records, are described in the letters prepared by the Air Force offices of primary responsibility which are included at Exhibits C through F. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial of removing the PRF for the CY2009C Major CSB from the applicant’s records. On 23 September 2009, the applicant submitted a request to void the 27 September 2008 OPR to the ERAB; however, due to no response to a request for additional information, the case was closed. On 3 September 2010 the applicant again requested the ERAB void the 27 September 2008 OPR, which was approved on 30 September 2010 and an AF Form 77, Letter of Evaluation, was placed into the applicant’s record in place of the OPR. Additionally, the applicant filed another request to the ERAB on 19 October 2010 requesting the CY2009C PRF be removed and he be provided SSB consideration. That request was approved on 29 November 2010. The SSB convened on January 2011, with the contested OPR and PRF not present in his Officer Selection Record (OSR). The applicant filed another ERAB on 2 July 2011 to void his 21 December 2009 OPR; due to a lack of response for additional information, the application was closed. On 6 July 2011, his senior rater, who wrote the original contested PRF, petitioned the ERAB to substitute the AF Form 77 with a newly revised PRF that eliminated any reference to the applicant’s referral OPR. This action is authorized under AFI 36-2401, para 2.2, if someone other than the ratee finds error in the report, he or she may initiate corrective action. In this case, the senior rater initiated the appeal on the applicant’s behalf. The applicant was given a reasonable amount of time to acknowledge and or respond with a memorandum, which the applicant provided for use in the appeal. This application was approved by the ERAB on 31 October 2011, which voided the AF Form 77 present in the record and replaced it with a new “Do Not Promote” PRF. The applicant was notified of this decision by telephone. The applicant contends that he was done an injustice when he was approved for a January 2011 SSB without the voided PRF. He believes that the successful removal of his 2008 OPR and CY2009C PRF should have resulted in a new PRF. He also does not understand why the ERAB did not, at the time of the ERAB, decide to void the CY2009C PRF. The ERAB considers specific relief as requested by applicants. It is not an investigative body and does not seek relief other than what is requested. The applicant had to specifically request the ERAB void his PRF. As stated above, he successfully appealed to the ERAB and the PRF was removed. Therefore, the applicant was provided the relief sought in time for his January 2011 SSB. The applicant later submitted a PRF justification sheet to his new Senior Rater requesting a new PRF be written to replace the existing AF Form 77 in the evaluation record. That request was in violation of AFI 36-2401, para A1.5.22.1, in that the reaccomplished evaluation report, or in this case PRF, must be signed by the original evaluator who signed the original PRF. Only under extremely circumstances would it have been appropriate for his new rater to rewrite the document. The applicant feels his original rater’s ERAB request constituted an injustice. The senior rater’s comments and recommendation are required. The applicant feels the senior rater ignored requests to write his PRF in time for his 10 January 2011 SSB. The original senior rater took appropriate action after learning the applicant approached his new senior rater requesting his PRF be rewritten. The fact that these actions took place after the January 2011 SSB is irrelevant to the applicants overall case and has no merit. There is also a presumption that the PRF was quality reviewed and properly completed prior to its submission to the ERAB for substitution on 31 October 2011. The applicant also contends he is the victim of reprisal due to filing EO and IG complaints against several fellow unit members while deployed. The applicant was released early from this deployment and was ultimately given a referral OPR at his home station. The applicant has failed, within this case, to prove that this was reprisal with regard to the PRF. The SAF/IG report does not substantiate a single incident of reprisal or that could have cast doubt on the impartial preparation or execution of the contested PRF. The SAF/IG report also identified that a previous Commander-Directed Investigation completed prior to the SAF/IG report did not substantiate any of those allegations. Therefore, the CY2009C PRF that was prepared, quality reviewed and approved for substitution by the ERAB is a legitimate document which corroborates the findings of the CDI and SAF/IG investigation. The applicant’s contentions of improper processing or consideration of the contested report is without merit. The applicant has not provided any substantiating evidence to prove his assertions that the approved substitute PRF that was placed into his records was rendered unfairly or unjustly. Air Force policy dictates that an evaluation report is accurate as written when it becomes a matter of record. To effectively challenge an evaluation, it is necessary to hear from all the members in the rating chain; not only for support, but also for clarification and explanation. The burden of proof is on the applicant and he has not substantiated the contested PRF was not rendered in good faith by all evaluators based on knowledge available at the time. To void this evaluation would not give any potential future supplemental selection board an accurate and complete picture of the applicant’s overall duty performance. The complete DPSID evaluation is at Exhibit C. AFPD/DPSOO recommends denial of the applicant’s request to void his nonselections to major and to directly promote him to major. The applicant was considered and not selected for promotion to the grade of major by the CY09C and CY10D major CSBs that convened on 2 November 2009 and 6 December 2010, respectively. Additionally, he was considered and not selected for promotion by the SSB that convened on 10 January 2011 for the CY2009C CSB. An SSB convened for the purpose of having a relook based on an error or injustice is just that, a relook. Any nonselection for that purpose does not constitute another nonselection. Therefore, there is nothing to be voided. The nonselection was based on a complete review of the applicant’s record. There is no evidence to suggest the applicant was prejudiced by this board. The applicant received a “Promote” recommendation with no negative comments. Without proof of error or injustice, the nonselection should not be voided. The results of the original CY2009C promotion board were based on a complete review of the applicant’s entire selection record, assessing the whole person factors, such as, job performance, professional qualities, depth and breadth of experience, leadership, and professional development. Although the officer may be qualified for promotion, he may not be the best qualified of other eligible officers competing for the limited number of promotion vacancies in the judgment of a selection board with the discretionary authority to make such selections. To grant a direct promotion would be unfair to all other officers who have extremely competitive records, but did not get promoted. Additionally, both Congress and DoD have made clear their intent that errors ultimately affecting promotions should be resolved through the use of SSB’s. When many good officers are competing for a limited number of promotions, it is extremely competitive. Without access to all the competing records and a review of their content, we believe sending approved cases to SSBs for remedy is the fairest and best practice. However, in this case, direct promotion and SSB consideration would be inappropriate. The complete DPSOO evaluation is at Exhibit D. AFPC/DPALO3 does not make a recommendation and provides information regarding assignments, should the applicant be reinstated. The 14N career field is manned at 71.88 percent at O-3 and 61.98 percent at O-4. Upon meeting his first major’s board in 2009, the applicant was in the 2001 year group. The 14N career field is currently 17 officers below sustainment for that year group. The career field also requires a top-secret clearance; therefore, his clearance must be revalidated prior to assuming 14N duties. Should the applicant be reinstated with a valid security clearance, he would be matched to an assignment based on his previous qualifications and the needs of the Air Force. The complete DPALO3 evaluation is at Exhibit E. AFPC/JA recommends denial of the application. The CY2009C and CY2010D central selection boards were conducted in accordance with the law and governing instructions. The applicant failed to prove any injustice with respect to those boards, or that any additional SSB consideration is required. He has similarly failed to establish any error or injustice that would warrant a direct promotion to major. Therefore, his discharge pursuant to 10 U.S.C 632 and AFI 36- 3207, para 3.4, for having been twice passed over for promotion to O-4 was proper. That determination moots the applicant’s request for reinstatement in the Air Force as he has established no basis that would mandate or justify doing so. The applicant failed to prove any error or injustice with respect to any of the actions he challenges. The complete JA evaluation is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through counsel, the applicant states the factual assertions are baseless, irrelevant sideshows to the merits. The two primary claims are: prejudicial SSB CY2009 relook, without any PRF despite his due diligence; and the rewritten PRF in 2011 was improperly presented as a performance based differentiation, but instead was based on alleged performance that bypassed the OPR process. The new PRF resurrects the same performance comments from the voided OPR and resulted in the same effect as if the original OPR and PRF were never removed. With regard to DPAL03’s advisory, should he be reinstated, he has an active top secret clearance and is undergoing a periodic reinvestigation. With regard to DPSID’s assertion that he never requested a new PRF prior to his SSB, he repeatedly requested a new PRF, but his senior rater refused to rewrite the 2009 PRF. His supervisors also requested a new PRF, but the senior rater again refused. He further addressed the instances in which a new PRF was requested, yet, never written. He now contends the senior rater forfeited his right to 10 months later; provide input to correct the same PRF. DPSID also states that he never requested a substitute PRF before the SSB and that it was the senior rater’s own initiative in 2011 to rewrite the PRF after learning the new senior rater was approached. He was told the lack of a PRF was a material error and requested a new PRF through the command and the Air Force Personnel Center. The advisory misleads the Board by asserting that he never requested a substitute PRF; however, the advisory writer was informed of the senior rater’s refusal in June 2011. The JA option offers conclusive statements without discussion of the facts. There is no explanation for any conclusions which suggests the intent to unduly influence the Board. The JA opinion should be ignored. DPSID’s argument is that the senior rater’s substituted PRF can still adversely comment on performance that covers an unrated period not a matter of record. They failed to comprehend the dilemma in this case. How can evaluators convert their voided ratings to an unapproved PRF? The senior rater used the PRF to make an end-run around the OPR process after the ERAB decision to void the evaluator’s original referral OPR and PRF. The rewritten PRF was still adverse with a “Do Not Promote.” It was the senior rater’s way to bypass the OPR rating to then include derogatory performance allegations. 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. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After a thorough review of the evidence of record, the applicant’s submission and counsel’s response to the Air Force advisories, we are not persuaded that his CY 2009C SSB should be voided, his second non-selection to major be removed and he be reinstated and granted a direct promotion to major with all back pay and allowances. His contentions in this regard are duly noted; however, in our opinion, the Air Force offices of primary responsibility have adequately addressed these contentions and we are in agreement with their assessment of his case. We agree with AFPC/DPSOO that a special selection board is simply a relook and does not constitute a non-selection; accordingly, the request to void the SSB is not favorably considered. 4. Additionally, the applicant requests his June 2011 PRF be removed from his records. The applicant, through counsel, contends that the June 2011 PRF is an end-run around to the OPR process; we disagree. The governing regulation states that senior raters may request subordinate supervisors provide information based on the officer’s duty performance. The applicant has not provided substantial evidence that his senior rater’s comments were based on unreliable information as contended. Therefore, we do not find the June 2011 PRF should be removed from his records. In view of the above, we find no basis to recommend granting the applicants request to be reinstated into the Air Force and receive a direct promotion to major. 5. The applicant alleges that he has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC 1034). We reviewed the evidence of record to reach our own independent determination of whether reprisal occurred. Based on our review, we do not conclude the applicant has been the victim of reprisal. The applicant was provided relief, as appropriate, by the ERAB. Therefore, it is our determination the applicant has not been the victim of reprisal based on the evidence of record in this case. 6. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of an error or injustice; that the application was denied without a personal appearance; and that 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-2012-01473 in Executive Session on 4 February 2013, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-01473 was considered: Exhibit A. DD Form 149, dated 21 Mar 12, w/atchs. Exhibit B. Applicant’s Master Personnel Record. Exhibit C. Letter, AFPC/DPSID, dated 21 May 12. Exhibit D. Letter, AFPD/DPSOO, dated 31 July 12. Exhibit E. Letter, AFPC/DPALO3, dated 17 Aug 12. Exhibit F. Letter, AFPC/JA, dated 20 Sep 12. Exhibit G. Letter, SAF/MRBR, dated 1 Oct 12. Exhibit H. Applicant’s Response, dated 1 Nov 11 [sic], w/atchs. Exhibit I. Unredacted SAF/IG investigation withdrawn.