AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  95-02235 
COUNSEL : 
HEARING DESIRED:  YES 

N T  <-  6 19-E . -  

APPLICANT REQUESTS THAT: 

The  Officer  Performance  Reports  closing  12  January  1994  and 
8 January 1995 be corrected to reflect "Meets Standards" in every 
block on the front side and all references to sexual orientation 
be deleted from Sections VI and VII. 

APPLICANT CONTENDS THAT: 

The reasons the applicant believes the records to be in error or 
unjust and the evidence submitted in support of the appeal are at 
Exhibit A. 

Applicant's  complete submission is attached at Exhibit AI. 

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STATEMENT OF FACTS: 
The relevant facts pertaining to this application, extracted from 
the  applicant's  military  records,  are  contained  in  the  letter 
prepared  by  the  appropriate  office  of  the  Air  Force. 
Accordingly,  there  is  no  need  to  recite  these  facts  in  this  - 
Record of Proceedings. 

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AIR FORCE EVALUATION: 

The Chief, Evaluation Procedures Section, AFMPC/DPPPEP, reviewed 
the  application  and  states  that  the  comments  in  question  are 
specific  and  they  tell  the  behavior  and  the  results  of  the 
behavior.  The  OPRs  are  considered  an  accurate  assessment  of 
performance at the time they were  rendered.  They recommend the 
request be denied. 
A complete copy of the evaluation is attached at Exhibit C. 
The  Chief,  Appeals  and  SSB  Branch,  AFPC/DPPPA,  reviewed  the 
application and states that to effectively challenge O P R s ,   it is 

AFBCMR 95-0223 

important to  hear  from all  the  evaluators  from the  reports-not 
only  for  support,  but  for  clarification/explanation. 
In 
applicant's case, he does not have support of any evaluators from 
the  contested  reports. 
According  to  the  rating  chain, 
applicant's  admission  of  homosexuality  rendered  him  unable  to 
accomplish  his  primary  mission  and  made  him  incompatible  for 
military  service. 
Applicant  had  his  security  clearance  and 
flying  status  suspended  as  a  result  of  his  admission  of 
homosexuality. 
This  made  him  unable  to  perform  his  duties. 
Applicant's  counsel states that applicant's  "announcement of his 
sexual orientation did not require that his security clearance be 
rescinded. 
They  agree;  there  was  no  requirement  to  remove 
applicant's  security  clearance,  but  that  fact  alone  does  not 
invalidate  the  action. 
The  commander  had  it  within  his 
discretion  to  determine  the  applicant's  state  of  mind  and 
character in rendering that judgment.  They find it logical that 
the applicant's apparent lack of candor with the Air Force would 
cause his commander concern regarding his security status.  While 
the applicant believes the comments in the narrative portion of 
the  reports  are vague,  they  do  not  concur with  his  assessment. 
The comments speak to the specific behavior  and the results are 
quite clear and are in complete accordance with Air Force policy. 
While  the  applicant  states  the  reports  address  certain 
information  being  considered  by  a  board  of  inquiry,  they,  in 
fact,  do  not  address  any  pending  action  but  address  "behavior 
incompatible with  minimum  standards  of personal  conduct."  The 
board of inquiry is not mentioned in the report, nor is anything 
that  could  be  considered  "pending."  The  reports  appdar  to  be 
written in complete accordance with Air Force policy in effect at 
the time they were rendered. 
Counsel  states  'I [applicant I  s] sexual orientation has  nothing  to 
do  with  his  performance." 
The  consistent  theme  throughout 
applicant's  case  and  in  his  counsel's  brief  is  that  duty 
performance  is  all  that  should  be  reflected  on  an  OPR.  They 
(applicant/counsel) believe the reports are invalid because they 
address  information outside  the  applicant's  performance  of  his  - 
specific job.  They do not agree with these statements.  While a 
ratee's  duty  performance  is  a  large  portion  of  an  OPR, 
officership traits, off-duty behavior,  character, integrity, and 
other  intangible  characteristics  and  behaviors  influence  the 
report.  The  "whole-person" concept  is used  by  both  evaluators 
and promotion boards.  Applicant was marked down in the sections 
dealing  with  leadership  skills,  professlonal  qualities,  and 
judgment  and  decisions.  Information  other  than  specific  duty 
performance would be appropriate determinants in these sections. 

Contrary  to  counsel's  assertions  of  evaluator  bias,  they  find 
absolutely  no  evidence  of  prejudicial  behavior  or  treatment 
regarding  the  assessment  of  applicant's  performance  on  the 
contested  reports.  It  appears  that  the  raters  made  carefully 
considered  comments  and  assessed  applicant's  performance 
objectively in accordance with Air Force policy. 

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AFBCMR 95-0223 

While  counsel  states  that  this  case  goes  to  the  core  and 
integrity of the officer evaluation system, they point  o u t   that 
when applicant entered  into the military, he had to concur that 
he was not a homosexual.  They believe applicant would be better 
served employing arguments that do not address  integrity, as he 
apparently  gave  fraudulent  information  to  military  officials. 
Evidence  has  not  been  provided  that  convinces  them  there  was 
inappropriate  information  or  intent  in  the  rendering  of  the 
reports.  Therefore, they recommend denial of the application. 
A complete copy of the evaluation is attached at Exhibit D. 

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APPLICANT'S  RESPONSE TO AIR FORCE EVALUATION: 
Complete copies of  the Air  Force  evaluations were  forwarded to 
counsel on 18 March  1996 for review and response within 30 days. 
No response was received by this office. 

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ADDITIONAL AIR FORCE EVALUATION: 

The  Chief,  Evaluation Procedures Section, AFPC/DPPPEP,  reviewed 
the  application and  states that the  governing regulation states 
that  when  reports  are  referred,  the  evaluator  'I ... . mus t 
specifically  detail  the  behavior  or  performance  causing  the 
referral in his or her comment."  Generic terms such as "personal 
preference' or even "sexual orientation" are not specific enough; 
one  would  have  to  guess  if  the  comment  referred  to 
heterosexuality, bisexuality, or homosexuality.  The requirement 
to be specific is meant to prevent any possible misunderstanding 
of what is stated.  Use of the term "homosexual" meets regulatory 
requirements  and  is  appropriate.  Reports  using  less  explicit 
terminology  which  could  lend  itself  to  misinterpretation would 
not  be  accepted  for  file;  they  would  be  returned  for  - 
reaccomplishment to include more specific terms. 

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Regarding the question of whether the comments are discriminatory 
in  nature,  the  vagueness  of  the  question  itself  makes  it 
difficult  to  answer. 
If  the  inferred  question  is,  would 
personnel reviewing applicant's  records for assignments and such 
discriminate  against  him,  that  is,  base  kheir  decisions on his 
homosexuality  instead of  solely on qualifications,  they believe 
it's  possible,  even  probable,  given  the  knowledge  that 
homosexuality is not in accordance with Air Force standards.  If 
the  inferred  question  is,  is  it  unfair  to  mention  the  admitted 
homosexuality, the answer is no, it is merely reporting a stated 
fact  from a  reliable source  (applicant).  In summary, the  terms 
'I homos exua 1 If 
and  I'  homosexual  orient at ion"  meet  regulatory 
guidance  and  are  appropriate  for  inclusion  in  performance 
reports. 
They  recommend  the  reports  remain  in  applicant's 
record. 

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AFBCMR 95-0223 

A complete copy of the evaluation is attached at Exhibit F. 

The Staff  Judge Advocate, AFPC/ JA, reviewed the application and 
states that AFR  36-10  (Officer Evaluation System, dated 1 August 
1988) was  the  regulation which  governed  the preparation of  the 
OPRs  in question.  In their opinion, mention of an admission of 
homosexuality  does  not  fall  within  any  of  the  proscribed 
categories of comments which may not be considered or referred to 
They  interpret  the  plain  language  of  the 
by  evaluators. 
regulation to have created a specific list of prohibited comments 
and since there is no mention of sexual orientation on the list 
of prohibited comments, they believe such comments are permitted. 
They  note  that  certain  comments  are  mandatory  when  an  OPR  is 
referred.  As the DPPPEP advisory points out, AFR  36-10 requires 
specificity in order to prevent misunderstanding,  and allow for 
focused,  meaningful  rebuttal. 
The  regulation  is  explicit, 
stating in part:  "The evaluator who causes an OPR to be referred 
must  specifically detail the behavior or performance causing the 
referral in his or her  comments."  They believe the applicant's 
self-admitted  status  of  being  a  homosexual  to  be  appropriate 
comment in an OPR under the applicable regulation. 
A complete copy of the evaluation is attached at Exhibit G. 

APPLICANT'S RESPONSE TO THE ADDITIONAL AIR FORCE EVALUATION: 

Counsel  reviewed  the Air  Force  evaluations  and  states that  the 
advisories  fail  to  address  the  matters  he  raised  in  his  27 
January 1995 letter to- 
at Randolph AFB.  The opinions 
also miss  the point and purpbse of the AFR  36-10 in effect with 
respect to  the OPRs rendered on applicant.  The Board will have 
to  ask themselves what  applicant's sexual orientation has to do 
with his performance as an Air Force officer.  Before his sexual 
orientation  became  disclosed,  his  OPRs  were  uniformly  - 
When  his  sexual  orientation  was  disclosed,  he 
outstanding. 
failed to meet standards in the O P R s   before the Board.  Contrary 
to AFR 36-10, paragraph 3-9, the evaluator fails to "specifically 
detail the behavior of performance causing the referral in his or 
her  comments. '' 
The  reason  is  that  there  is  nothing  in 
applicant's behavior or performance to justify the ratings of the 
evaluator. 

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< 

One need not indulge in wild speculation to understand what is at 
Applicant  advised  his  commander,  the 
work  in  these  O P R s .  
evaluator,  of  his  sexual  orientation.  The  evaluator  referred 
applicant to a Board  convened pursuant to AFR  36-2 for possible 
discharge.  It  is not  too much  o€ a  stretch  to  understand  the 
evaluator  considered  the  possibility  of  the  Board  retaining 
applicant in the Air  Force.  In that  event,  the  evaluator  well 
understood that stating applicant's sexual orientation in an OPR 
would have an adverse effect on further promotion opportunities. 

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AFBCMR 95-0223 

The evaluator conceded that  if applicant were  retained, the OPR 
would "kill" his career. 

- 

The evaluator's prejudice with respect to homosexuals serving in 
the  Air  Force  is  clear.  During  the  Board,  the  evaluator  was 
asked  "Would you  agree with me  that  you prefer  not  to have-see 
homosexuals in the United States Air Force, sir? Answer: Yes." 

The  advisory  opinions  do  not  meet  the  issue  of  applicant's 
performance. 
Knowing  applicant's  sexual  orientation,  or,  for 
that matter, the color of his eyes, or the  fact that he is left 
handed or right handed, tells the reader absolutely nothing about 
the manner in which applicant performs his duties as an Air Force 
officer . 
Counsel's complete response is attached at Exhibit I. 

THE BOARD CONCLUDES THAT: 

f 

The applicant has exhausted a l l   remedies provided by existing 

1. 
law or regulations. 

2.  The application was timely filed. 

3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  After 
thoroughly reviewing the evidence of record, we are not persuaded 
that  applicant  has  been  the  victim  of  either  an  error  or  an 
injustice.  Counsel's contentions are duly noted; however, we do 
not  find  these  assertions,  in  and  by  themselves,  sufficiently 
persuasive to override the rationale expressed by the Air  Force. 
It appears that  the comments used by  the evaluators to describe 
applicant's  sexual  orientation  were  specific,  accurate,  and  in 
compliance with  the  governing  regulation.  Counsel  argues  that 
applicant's  sexual orientation has  nothing  to  do  with  his  duty  - 
performance; however, we note that the Air Force states that the 
"whole person"  concept is used by  both  evaluators and promotion 
boards.  The applicant was marked  down in sections dealing with 
leadership  s k i l l s ,   professional  qualities,  and  judgment  and 
decisions. 
Clearly,  information  other  than  specific  duty 
performance  would  be  appropriate  factors  to  consider  in  these 
sections.  We  note  that  the  applicant  has  not  submitted  any 
supporting documentation from the rating chain and has  failed to 
provide  evidence  showing  that  the  reports  were  not  accurate 
assessments  as  rendered. 
Therefore,  we  agree  with  the 
recommendations  of  the  Air  Force  and  adopt  the  rationale 
expressed as the basis for our conclusion that the applicant has 
failed  to  sustain  his  burden  of  establishing  the  existence  of 
either an error or an injustice. 

4.  The applicant's case is adequately documented and it has not 
been  shown  that  a  personal  appearance with  or  without  counsel 

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will  materially  add  to  our  understanding  of  the  issue(s) 
involved.  Therefore, the request for a hearing is not favorably 
considered. 

AFBCMR 954223 

THE BOARD DETERMINES THAT: 

The  applicant  be  notified  that  the  evidence  presented  did  not 
demonstrate  the  existence  of  probable  material  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 this application in 
Executive  Session  on  13  February  1997  and  25  September  1997, 
under the provisions of AFI 36-2603: 

I 

Mr, David C. Van Gasbeck, Panel Chairman 
Mr. Michael P. Higgins, Member 
Ms. Sophie A. Clark, Member 

The following documentary evidence was considered: 

Exhibit A, 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G. 
Exhibit H . 
Exhibit I. 

DD Form 149, dated 5 Jul 95, w/atchs. 
Applicant's Master Personnel Records. 
Letter, AFMPC/DPPPEP, dated 25 Aug 95. 
Letter, AFPC/DPPPA, dated 28 Feb 96. 
Letter, AFBCMR, dated 18 Mar 96. 
Letter, AFPC/DPPEP, dated 16 Apr 97. 
Letter, AFPC/JA, dated 18 Apr 97. 
Letter, AFBCMR, dated 10 Jun 97. 
Counsel's response, dated 30 Jul 9 x  

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p n e y r m a n  

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