RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00799 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. The Letter of Reprimand (LOR) dated 28 Nov 11, be removed from his military personnel record, as well as all references to it. 2. The referral Officer Performance Report (OPR) rendered for the period of 1 Jun 11 thru 14 Mar 12, be declared void and removed from his record. 3. He be restored to his original date of rank (DOR) and place on the promotion list to major (O-4). APPLICANT CONTENDS THAT: He unjustly received an LOR for failing to advise a senior officer on board an aircraft, that a particular aeronautical maneuver the senior officer wished to perform might be questionable. The allegations contained in the LOR, were that as Mission Commander (MC), he allowed a barrel roll to take place without objecting, allowing the aircraft to be operated outside its operating capabilities in violation of the AFI and the aircraft’s operating manual. At the time of the incident, there was a lack of a technical order for the MC-12W, and therefore no written or other guidance from the leadership of the unit concerning which particular maneuvers were authorized. While the applicant was the MC, on this flight, the senior pilot, in his instructor capacity, had the legal authority to take command or trump any decisions he saw fit, rendering him at all times in charge of the aircraft. The findings of two Flight Evaluation Boards (FEBs) reached similar conclusions regarding the incident in question, that a barrel roll did not take place, but rather a maneuver similar to an instrument aileron roll was performed. Based on a referral letter of evaluation from the commander at his deployed location, he received a referral OPR when he returned to his home station. This was an isolated incident, not repeated, and without injury, death, or loss of property. His record both before this incident, and during his subsequent two years of service has been exemplary. It would be a loss to the Air Force if the OPR or any references to the LOR remain in place, as they would permanently affect his ability to serve in the Air Force. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant was serving in the grade of captain (O-3) during the period of time in question. On 18 Nov 11, the 4th Expeditionary Reconnaissance Squadron (ERS) Commander at Bagram Air Base initiated a Commander Directed Investigation (CDI) into all aspects of the facts and circumstances concerning prohibited flight maneuvers engaged in by members of the squadron while flying the MC-12. Allegation #1: Were prohibited flight maneuvers performed by members of the 4th Expeditionary Reconnaissance Squadron (4ERS). Analysis/Conclusion: A preponderance of the evidence existed to show that members of the 4 ERS engaged in Barrel Rolls, a flight maneuver prohibited, on at least three occasions. Therefore, this allegation was substantiated. Recommendation: All officers demonstrated a breakdown in judgment, airmanship, and basic flight discipline. The applicant should receive an LOR for failing to intervene. On 28 Nov 11, the applicant received an LOR based on the findings of the CDI. The specific event occurred on 26 Oct 11, during a flight while deployed to Afghanistan. The applicant used poor judgment when he failed as aircraft commander to intervene and tell another pilot to stop performing a prohibited aerobatic maneuver in a MC-12 aircraft. On 29 Nov 11, the applicant submitted a response to the LOR, accepting full responsibility for his actions and the conduct of the flight and crew. On 8-9 Feb 12, an FEB for the pilot in question convened and considered all the evidence presented to it, in closed session and found he DID exhibit a lack of judgment on 11 Sep 11, 22 Sep 11 and 26 Oct 11, by accomplishing or allowing to be accomplished rolling maneuvers, a full 360 degrees of roll, in the MC-12W, similar to the instrument aileron roll described in AFMAN 11-217V1, Instrument Flight Procedures; DID NOT intentionally disregard instructions, regulations or procedures while accomplishing or allowing to be accomplished these rolling maneuvers on 11 Sep 11, 22 Sep 11 and 26 Oct 11. The FEB noted the evidence presented during the FEB indicates incomplete, confusing and contradictory MC-12W guidance. While a roll was not specifically prohibited by existing guidance, the aircraft was not certified for aerobatics; and while there were many benefits to rapid procurement and employment of the MC-12W to operations in Afghanistan, the existing written guidance in the POH did not address the tactical employment requirements of the MC-12W. Lastly, the FEB noted a Dash 1 technical order had not been published. The FEB stated that although the pilot executed poor judgment on three separate dates, they considered this one event and recommended he be retained in aviation service due to his otherwise sound aviation record. On 12 Apr 12, the applicant received an OPR rendered for the period of 1 Jun 11 through 14 Mar 12, on which was marked “Does Not Meet Standards” in performance factors area #5 (Judgment and Decisions) which made his OPR a referral. His rater stated in section IV (Rater Overall Assessment) that “As MC-12 MC, allowed pilot to perform in-flight maneuver violating current Pilot Operating Handbook, rec’d LOR.” The rater further stated in section XI (Referral Report) “my rating of ‘Does Not Meet Standards’ in sections III and IX, as well as my comments in section IV pertaining to your lack of judgment while deployed to Afghanistan in the MC-12.” The applicant’s OPR profile is listed below: PERIOD ENDING OVERALL EVALUATION 31 May 10 Meets Standards (MS) 31 May 11 MS *14 Mar 12 Does Not MS 30 Nov 12 MS 30 Nov 13 MS 26 Aug 14 MS On 7 May 12, the applicant submitted a response to the referral OPR, bearing responsibility for his actions on 26 Oct 11. He did not file an appeal through the Evaluation Report Appeals Board (ERAB). On 10 Aug 12, the applicant’s commander issued him an AF Form 4363, Record of Promotion Delay Resolution, that approved his promotion delay termination with his effective DOR adjusted to 10 Aug 12 On 16 Oct 12, according to special order JB-005061, the applicant was promoted to the grade of major, with a DOR and effective date of 10 Aug 12. On or about 30 Jan 14, the applicant applied for voluntary separation under the 2014 Fiscal Year (FY) Force Management Voluntary Separation Pay (VSP) Program. On 10 Apr 14, the applicant’s request was approved for 26 Sep 14, the date that he requested. On 26 Sep 14, the applicant was furnished an honorable discharge, and was credited with 12 years, 3 months, and 28 days of active service. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, D, E, and F. AIR FORCE EVALUATION: AFPC/DPSIM recommends denial of the applicant’s request to remove the LOR. DPSIM states that they cannot speak to whether or not the commander’s actions were just or not; at most they can only discuss if proper procedures were followed in the administration of the action. Since the LOR that the applicant provided was incomplete, the OPR cannot determine when the applicant acknowledged the LOR, or the commander’s final decision. After careful review, they determined the evidence presented was incomplete. This doesn’t mean that it was not completed properly; it simply means they cannot determine if it was completed properly. Therefore, they cannot support recommendation for relief to this claim. Finally, the Special Programs Branch defers recommendation of the removal of the OPR to the Officer Evaluations Branch. A complete copy of the AFPC/DPSIM evaluation is at Exhibit C. AFPC/DPSID recommends denial of the applicant’s request to void the contested OPR, indicating there is no evidence of an error or an injustice. In accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems, 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, Admonishment, or Counseling, or placement on the Control Roster 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, 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. Based upon the presumed sufficiency of the LOR as served to the applicant, it has been concluded that its mention on the contested report was proper and in accordance with all applicable Air Force policies and procedures. Consequently, we find this element of the applicant’s appeal to be without merit. Finally, 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. 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 OPR was not rendered in good faith by all evaluators based on knowledge available at the time. A complete copy of the AFPC/DPSID evaluation is at Exhibit D. AFPC/DPSOO recommends denial of the applicant’s request to restore his original DOR to major. The applicant was selected for promotion by the Calendar Year 10D Major Line Central Selection Board which convened on 6 Dec 10. He was scheduled to pin-on major on 1 Apr 12. Since the applicant had received an LOR for the actions which resulted in the delay, the approving authority to terminate the delay is the Secretary of the Air Force (SECAF). Notwithstanding the Commander’s recommendation, the SECAF may promote the officer on the applicant’s original DOR, promote the applicant with an adjusted DOR to reflect the date on which the applicant met the exemplary conduct standard and was ready for promotion to the higher grade (Title 10, Section 8583), extend the applicant’s delay or remove the applicant from the promotion list. On 5 Sep 12, SECAF approved the termination of the delay with an effective DOR adjustment to 10 Aug 12, the same date his commander found him qualified for promotion and initiated the termination action. AFI 36-2501, Officer Promotions and Selective Continuation, 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. It should be noted that the reason for the delay of promotion was not the LOR but the actions that resulted in the initial delay. A complete copy of the AFPC/DPSOO evaluation is at Exhibit E. AFPC/JA recommends denial indicating there is no evidence of an error or an injustice. In determining whether to issue an LOR, a great deal of discretion is vested in the commander or supervisor issuing it. Unlike a military justice action, the evidence to support the action need not be based on a “beyond a reasonable doubt” burden of proof required for criminal prosecutions. Rather, as an administrative action, the standard of proof for an LOR (and referral OPR) is a preponderance of the evidence; i.e., that it is more likely than not that the fact occurred as alleged. That standard was clearly met in this case. Moreover, all due process and other requirements for an LOR prescribed in AFI 36-2907, Unfavorable Information File, were complied with. The decision to issue the LOR, referral OPR and delay in promotion constituted a totally proper and appropriate exercise of the commander’s discretion, and the applicant has failed to offer any evidence that the decision was arbitrary, capricious or an abuse of that discretion. In addition, the decision by the SECAF to adjust the applicant’s DOR for promotion to major was likewise a proper exercise of discretion which should not now be disturbed by the Board in the absence of evidence of abuse of that discretion. A complete copy of the AFPC/JA evaluation is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through counsel the applicant refutes virtually every point made by the OPRs and argues that he does not contend that proper procedures were not followed in the administration of the LOR and OPR, rather it is the LOR and OPR themselves that are the points of contention. He presented evidence that two FEBs independently found that “there was no intentional disregard of instructions, regulations or procedures in accomplishing these maneuvers.” If the factual basis for the comment in the LOR or OPR are not true or are inaccurate or just, then any reference to the basis for the comment must be withdrawn. Two separate FEBs refute the finding of the CDI upon which the LOR and subsequent OPR are based. Even if there was a doubt as to which should be given greater weight the CDI or FEBs, the preponderance standard would weigh in favor of the two FEBs rather than the one CDI. It is the hope of the applicant that the Board will closely consider the overwhelming evidence that contradicts, or at the very least calls into question the basis for the imposition of the LOR and subsequent OPR. A failure to grant relief will otherwise result in the termination of the career of an officer who has great potential for continued service to our nation. 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 warranting removal of the Letter of Reprimand (LOR), and restoration of the applicant’s date of rank (DOR) and place on the promotion list. We took careful notice of the applicant's complete submission in judging the merits of the case; however, we do not find the evidence provided sufficient to override the rationale provided by the Air Force offices of primary responsibility. Thus, we agree with the opinions and the recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting this portion of the relief sought in this application. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s Officer Performance Report (OPR). After a thorough review of the facts and circumstances of this case, we believe the applicant has been the victim of an injustice. We note the comments of AFPC/DPSID and AFPC/JA, indicating the applicant has failed to sustain his burden of proof; however, we believe he has raised sufficient doubt regarding the equity and accuracy of the contested OPR. In this respect, we note the overall rating of the contested report represents a significant regression when compared to his performance history both prior and subsequent to the period under review. Additionally, while the applicant was the mission commander, he was junior to the co-pilot who requested and performed the aerobatic maneuver. We believe this is an isolated incident that would not have occurred but for the influence of the lieutenant colonel co-pilot. We are persuaded a preponderance of the evidence supports the contested report is not an accurate assessment of the applicant’s performance during the period in question. We believe the Letter of Reprimand (LOR) sufficiently addresses administrative action for this incident. Therefore, in view of the above, we believe the correction cited below will provide the applicant proper relief and as such recommend his records be corrected as indicated. THE BOARD DETERMINES THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that AF Form 707, Officer Performance Report (Lt thru Col), rendered for the period 1 June 2011 thru 14 March 2012, be declared void and removed from his records. The following members of the Board considered AFBCMR Docket Number BC-2014-00799 in Executive Session on 22 Apr 15, under the provisions of AFI 36-2603: The following documentary evidence pertaining AFBCMR Docket Number BC-2014-00799 was considered: Exhibit A. DD Form 149, dated 5 Feb 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSIM, dated 7 Mar 14. Exhibit D. Memorandum, AFPC/DPSID, dated 6 Nov 14. Exhibit E. Memorandum, AFPC/DPSOO, dated 29 Dec 14. Exhibit F. Memorandum, AFPC/JA, dated 7 Jan 15. Exhibit G. Letter, SAF/MRBR, dated 11 Feb 15. Exhibit H. Letter, Applicant, dated 27 Feb 15, w/atchs.