AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBERS: 96-01049(Cs #2) & 
96-03731 (CS # 3 )  

HEARING DESIRED:  Yes 

2  0 1997 

APPLICANT REOUESTS THAT: 

1.  His  selection  for promotion  to  the  grade  of  major  by  the 
Calendar  Year  1994A  (CY94A) Major  Board  be  restored  with  an 
effective date of rank  (DOR) of 1 November 1995. (Case #2) 
2.  His permanent change of station (PCS) assignment to HQ USAF, 
Washington, D.C. , be reinstated. (Case #2) 
3.  The referral Officer Performance Report  (OPR)  for the period 
9 June 1995 through 20 May 1996 be declared void and removed from 
his records. (Case #3) 

- 

These  actions  were  unjust  and  the  result  of  unresolved 
Control 

APPLICANT CONTENDS THAT: 
Regarding Requests 1 &  2: 
personality and opinion differences between the -Air 
Squadron  (ASC) ,  ACC, commander 
-who 
his  career. 
initiated  an  investigation  on  him 
regarding  a  family  matter  which  was  previously  resolved  in  a 
ed hard and performed well for four years 
civil court  He's 
at -and 
F B s .   He provides statements attesting to 
evements. He  also  provides  documentation 
his  abilities an 
pertaining to the  events mentioned  in the  I'Statement of  Facts'' 
section below. 

told him he was doing a 

and himself. 
ctually sought 

Reqardinq Request 3: 

The  contested  report  makes  false  statements,  uses 
inappropriate language, and cites an unjust reprimand given under 
unfair conditions. Contrary to what  is said on the OPR, he  was 
not  found  guilty  by  state  court  of  harassing  his  tenant  and 
destroying property. He was not  convicted on any charges. Also, 
the  period  of  the  OPR  is  incorrect. Two  separate  reports were 
required for this 
'od: one  for 9 Jun-23 Oct  95 when he  was 
assigned to 
and another for 24 Oct 95-20 May 96 when 
he was transferred to the 20th  Operations Group  (OG). The 20 May 
1996 change of reporting official (CRO) should have resulted in a 
separate report  for the period 23  Oct  95-20 May  96. This would 
have  shown  his  performance  as  exemplary.  He  provides  a 

Classification/On-the-Job Training Action form and a letter from 
the rater of the contested report to support his claim. 
Applicant's complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

urrently  a  captain  (DOR: 21  Nov  87) assigned-to 

Documents  relevant  to  the  following  events  are  provided  for 
review at Exhibits A and C. 

Durin  the period in question, the applicant was assigned to the 
as a maintenance  officer. He  also 
d A S C ,  ACC, at -AFB, 
served as detachment commander  (Detco) of Det  7, 
Operations 
Group  (OG) , from 5 January to 1 8   February 1994. 

ted 1 6   February 1994, the -G 
commander advised 
commander  of  applicant's  duty-related  problems 
OG  Detco, L e . ,  lack of operational experience and 
a tendency to bypass normal chain of  command. Specifically, the 
-0G 
commander  indicated that  applicant on  several occasions 
made  agreements with  US  Military  Group  (USMILGRP) Peru without 
coordinating with W O G  personnel, which had  an impact on the 
operation of the detachment. In addition, applicant's reports to 
higher headquarters often contained  inflammatory language about 
the  host  nation  and  he  continued  to  bypass  normal  command 
channels after being repeatedly counseled. 

ant was  subsequently removed  from his position as 
for cause. 

On  1 6   June  1994, 
a  Letter  of  Reprimand  (LOR) for 
failure to follow 
direct order to consult with him 
before relieving key squadron supervisors. Applicant rebutted the 
LOR. 
On  1 7   July 1995, after obt  ' 
e  applicant 
appeared as a defendant  in 
proceeding 
mal i c ious 
charged  with  fourth  deg 
destruction of property of  a value of  about  $300.00, and  three 
counts of  telephone harassment. The victim  was  his  sister. The 
court initially found him guilty of one count of telephone abuse 
and  the  malicious  destruction  of  property.  Subsequent  to  the 
applicant's motion, the court struck the guilty judgment and he 
was  offered  probation  before  judgment  and  ordered  to  pay 
restitution in the amount of $225.00 to the victim. The burglary 
charge was not prosecuted. He was found not guilty of the battery 
of his sister and of two counts of telephone harassment. Since he 
successfully completed the probation, his record was  cleared an 

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no conviction 
this situation 

was  recorded.  (Detailed background  information on 
is provided in Exhibits A and C.) 
Applicant  was 
initially  considered  and  selected  by  the  CY94A 
board,  which 
convened  on  22  August  1 9 9 4 .  
His  Promotion 
Recommendation 
Form  (PRF) reflected an overall recommendation of 
"Promote.  He 
was  officially  notified  of  his  selection  for 
promotion to major on 30 October 1 9 9 4 ,   with a scheduled promotion 
date of 1 November 1 9 9 5 .  
On  21  August  1 9 9 5 ,   subsequent  to  a  phone  call  from  the 
applicant's sister regarding the charges she had brought against 
him  (see above), Lt  Col  G--  directed  an  O S 1   investigation be 
conducted. The investigation concluded on 18 December 1 9 9 5 .  

another LOR on 3 October 1 9 9 5   for failing to 
APP1 
obey 
irect order to provide him suitable candidates 
to fill an embassy liaison position  in South America. Applicant 
had nominated himself and, when told to identify an alternative, 
responded  that  no  one  else was  capable of  doing  the  job. A s   a 
result, an Unfavorable Information File  (UIF) was established on 
13 October 1 9 9 5 .   Applicant provided a rebuttal. 
On 23  October 1 9 9 5 ,   applicant was given a duty title of Special 
Assistant toQlCdOG commander. 

Applicant  was  verbally  notified  on  30  October  1 9 9 5   that  his 
promotion  was  delayed.  The  basis  was  the  preliminary  O S 1  
s  situation  with  his  sister.  On 
investigation  regardin 
13 November  1 9 9 5 ,   the 
OG  commander  notified  applicant  of 
initiation  of  action  to  delay  promotion  to  1 May  1 9 9 6 ,   and 
applicant acknowledged receipt and understanding. He submitted a 
rebuttal on 1 4   November  1 9 9 5 .   On 21 November  1 9 9 5   the  file was 
found legally sufficient to delay promotion. On 1 6   January 1 9 9 6 ,  
the ACC commander approved the request for delay to 1 May 1 9 9 6 .  

OG  commander notified  the  applicant 
applicant's name be removed from the 
'st. Specified  reasons,  in  part,  were:  his 
OG Detco; the actions which prompted the two 
performance feedback sessions on 1 4   November 

On  1 5   March  1 9 9 6 ,   the 
that he was recommendin 
ma j or  promot io 
removal as the 
LORs; counseli 
1 9 9 4 ,   30  January 1 9 9 5 ,   and  13  Octo 
decisions, missed staff meetings and 
and officers 
ntially misl 
've TDY  (to 
his request 
of the findings of  t 
or informing 
responded, 
at  he  consented  to  probation  before 
judgment and probation has since been lifted  [on 
this was  not  a  conviction; that  he  had  informed 
could obtain details from the ADC  regarding the permissive TDY. 
Applicant's  detailed  rebuttal  to  the  1 5   March  1 9 9 6   letter  is 
provided at Exhibit A. 

' 

3 

In a  follow-on letter to the applicant dated  8 April  1 9 9 6 ,   the 
OG  commander  amended  his  recommendation  to  include  an 
ched O S 1   report dated 22 March 1996.: 

t 

Fighter 
On  30 April  1 9 9 6 ,   the  Staff  Judge Advocate  (SJA), 
Wing, rendered a legal review of the Removal from Promotion List 
Action. The SJA indicated that, while there was no question that 
the applicant demonstrated technical expertise in his  field, he 
lacked  the  command  skills  necessary  to  fulfill  the  grade  of 
major. The SJA concluded that the evidence was-  legally sufficient 
to support a recommendation for 'removal from the promotion list 
to the grade of major. 
On  7 May  1 9 9 6 ,   ACC  advised AFPC  that  commander  had  initiated 
removal  action.  ACC/JA  found  the  file  legally  sufficient  for 
removal from promotion action. 
On or about 30 July 1 9 9 6 ,   the contested OPR was referred to the 
applicant. The rater had indicated applicant met  all performance 
factors.  However,  the  additional  rater  amended  the  report  to 
reflect  "Does  Not  Meet  Standards1I  in  Leadership  Skills, 
Professional Qualities, and Judgment &  Decisions. The additional 
.  .  was 
rater  also  commented, in part,  that  the  applicant 
found guilty by  state court  of  harassing  tenant  and  destroying 
property."  Applicant  and  his  counsel  responded and  included an 
explanation  of  the  court  action.  On  6  September  1 9 9 6 ,   after 
considering the applicant's rebuttal, the reviewer concurred with 
the additional rater's assessment and ratings. 

On 9 September 1 9 9 6 ,   the Secretary of the Air Force directed that 
She 
applicant's  name  be  removed  from  the  promotion  list. 
indicated  that  in  deciding  this  action,  she  specifically 
disregarded  all performance  feedback data  included in  the  case 
file. 

Applicant  will  be  eligible  for  promotion  consideration  at  the 
next board scheduled to convene on 1 6   June 1 9 9 7 .  

AIR FORCE EVALUATION: 

Reqardinq Requests 1 and 2: 
The Assignment Advisor, AFPC/DPAIP2, indicated that, if  it 
is  found  that  actions  relating  to  applicant's promotion  were 
unjust ,  then reinstatement of assignment to HQ USAF, Washington, 
D. C. , is appropriate. 

The Officer Promotion Management, AFPC/DPPPO, recommends all 
aspects of this application be denied. AFI  3 6 - 2 5 0 1   requires that 
commanders  question  promotion  when  the  preponderance  of  the 
evidence shows the officer is not mentally, physically, morally, 
or professionally qualified to perform the duties of  the higher 
grade.  Formal  rules  of  evidence  do  not  apply  to  a  Promotion 

4 

Propriety  Action.  In  this  case, the  commander  was  within  his 
authority to request promotion delay and removal. 

The Staff Judge Advocate, AFPC/JA, provided two advisories. 
The author indicates that the procedural aspects of the Promotion 
Propriety Action were followed in the instant case. The 15 March 
letter  of  notification  does  improperly  include  three  AF  Form 
724s,  Performance Feedback Worksheet  (PFW) .  Use of PFWs for any 
personnel action was prohibited by AFR  36-10 unless it was first 
introduced by  the officer. The applicant addresses the PFWs -in 
his response but  did not first raise the matter. Therefore, use 
of  the PFWs is inappropriate and the Board  should not  consider 
them or references to them in making its decision. Nevertheless, 
the author believes there is more than ample evidence to support 
the removal, and  notes the Secretary must  have been  advised of 
this flaw in the package as her action specifically mentions that 
she disregarded the PFWs. The applicant articulates his personal 
disagreement  with  the  actions  taken  against  him  but  has  not 
provided  any evidence from anyone  in his  chain of  command that 
supports his  view  that  all  the  actions were  somehow unjust  or 
overblown. The statements he provides attest  to his performance 
at other times and places but do not directly address his current 
dilemma. Applicant's response, in many instances, is little more 
than  quibbling  and  blame-shifting.  The  standard  used  in 
determining whether removal from a promotion list is appropriate 
is whether the preponderance of evidence shows that  the officer 
is professionally unfit  to assume the duties of  the next higher 
grade. In this case the chain of  command and the Secretary have 
concluded that the applicant was not fit and removed him from the 
promotion  list. Nothing  in his  submission demonstrates that  an 
injustice occurred which  should be  corrected by  the  Board. The 
Secretary did not  abuse her discretion in removing him from the 
promotion list and her action is fully supported by the evidence 
of record. The author recommends these two requests be denied. 
Regardinq Request 3: 

The  Staff  Judge  Advocate,  AFPC/JA,  indicates  that  the 
response to the referral report by the applicant and his counsel 
is an official part  of  the OPR  document; therefore, the author 
would  argue  that,  taken  as  a  whole,  the  document  gives  an 
accurate  picture  of  applicant's  encounter  with  the  law.  The 
author disagrees with  the applicant's underlying  assertion that 
since  there  was  ultimately  no  conviction  because  of  his 
successful completion of his probation, the whole episode is not 
fair game  for comment  in his  OPR. The  author views  the  action 
taken  in applicant's civil  case  as an  "action  tantamount  to  a 
finding  of  guilty." 
Should  the  Board  find  that  the  OPR  as 
currently  written,  to  include  the  applicant's  response,  is 
misleading,  then  it  is  suggested  that  the  following  be 
substituted:  "Also had  action  taken by  a  state  court  that  was 
tantamount  to  a  finding  of  guilty  of  harassing  tenant  and 
destroying  property  when  he  was  placed  on  probation  before 
judgment . 

5 

The Chief, Appeals &  SSB Branch, AFPC/DPPPA, believes that, 
since  the  probation  before  judgment  is  discussed  in  the 
applicant's rebuttal comments attached  to the contested report, 
there is no reason to replace the comrhent  in question. Further, 
the  additional  rater  is  not  heard  from.  The  form  applicant 
provides regarding a job change does not reflect other signatures 
to  show  the  change  was  approved--it  is  only  signed  by  the 
commander. The report on individual person  (RIP) provided by the 
applicant  does  not  show  who  the  new  rater  was.  Since  the 
applicant did  not  provide  replacement  reports covering the  two 
time periods, the author can only conclude that this is merely an 
attempt on the applicant's part  to prove the referral report is 
invalid. It  is apparent that  the substandard behavior beginning 
in  1994  continued  through  the  contested  reporting period.  The 
removal from the promotion list package documents the applicant's 
substandard performance during the contested rating period. The 
author  is not  convinced  the  contested  report  is  inaccurate as 
written and recommends that it remain in the record as is. 
Complete copies of  the Air  Force evaluations, with attachments, 
are provided at Exhibits C, D, E, F and G. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Reqardinq Requests 1 and 2: 

Applicant  and  counsel  reviewed  the  advisory  opinions. 
Applicant elaborates on his circumstances and believes the entire 
matter  has  been  exaggerated  and  personalized  as  a  result  of 
personality differences between himself  and Lt Col G--. In view 
of  the  [AFPC/JA's] derogatory comments about  his  character, he 
sought  a  psychological  evaluation, which  he  provides.  He  also 
provides a polygraph test to show he is being truthful. He showed 
no  deception.  Counsel  contends  that  the  file  does  not  contain 
anything remotely suggesting an officer with an inferior record. 
The applicant has been insulted by an attorney-advisor employing 
highly  inappropriate personal  comments, which should be  totally 
disregarded.  In  support, applicant  provides  a  letter  from  the 
24th OG  commander. The  commander  states  that, while  he  cannot 
retract the deeds attributed to the applicant in his  [16 February 
1994  letter  to  the  726th ASC  commander  regarding  applicant's 
duty-related problems while  the  24th OG  Detco] ,  he  acknowledged 
that  the  applicant  was  suspended  between  two  seemingly 
conflicting organizations. He adds that applicant's difficulties 
were not uncommon. He adds that as a captain and a communications 
officer, the  applicant was not  suited to command that  unit. He 
believes that applicant's unit underestimated the challenges and 
that  it  was  not  fair to  the  applicant  or  the  mission  to  have 
selected him for that position. Consequently, he feels it is now 
unfair that the applicant should be denied promotion. 

Reqardinq Recruest 3: 
Applicant  argues that when  a CRO  occurs, and  the  previous 
rater has  1 2 0   or more days supervision, the previous rater must 

6 

provide a performance report.  His rater, from  9 Jun-23 Oct  95 
was Lt  Col G - - .   The October 1 9 9 5   performance  feedback and the 
1996 performance reports were accompli,shed by  different people. 
Whether  the  suggested  wording  can  be' squeezed  into  the  blank 
remaining is of no moment. What is important is that the Maryland 
Court  [situation] is mischaracterized. This is unfair in terms of 
due process. 

Applicant's complete responses, with attachments, are provided at 
Exhibit I. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all 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 a 
thorough  review  of  the  evidence  of  record  and  applicant's 
submission, we are not persuaded that his promotion to major and 
assignment to HQ USAF should be reinstated, or that the contested 
OPR  should be  voided.  Applicant's contentions were  duly noted 
and the documentation he provided carefully considered.  However, 
we  do  not  find  these  assertions,  in  and  by  themselves, 
sufficiently persuasive to override the rationale provided by the 
Air Force. The arguments the applicant makes and the materials he 
provides to this Board were previously considered by his chain of 
command  and  the  Secretary  of  the  Air  Force.  However,  the 
Recommendation  for  Removal  from  the  Promotion  List  was  found 
legally  sufficient  and  in  compliance  with  all  procedural 
requirements. We note the Secretary appropriately disregarded a l l  
performance  feedback  data.  The  removal  action  appears  to  be 
supported by  the evidence of  record  and we  find no basis upon 
which  to  conclude  that  it  was  unjust  or  inappropriate.  Having 
reached  that  conclusion,  we  see  no  reason  to  reinstate  the 
applicant's assignment to HQ USAF, which was canceled as a result 
of  the  promotion  delay.  With  respect  to  the  OPR,  applicant's 
rebuttal  is  an  official  part  of  the  report  and, taken  in  its 
entirety, the OPR document appears to give an accurate picture of 
the  applicant's encounter  with  the  law.  He  has  not  provided 
persuasive  evidence  that  the  contested  report  is  inaccurate, 
misleading,  or  unfair.  We  therefore  agree  with  the 
recommendations  of  the  Air  Force  and  adopt  the  rationale 
expressed as the basis  for our decision that  the  applicant has 
failed to sustain his burden that he has suffered either an error 
or  an  injustice.  Therefore, we  find  no  compelling  basis  to 
recommend granting the relief sought. 

4.  The documentation provided with  this case was  sufficient to 
give the Board a clear understanding of the issues involved and a 

7 

personal  appearance, with  or  without  legal  counsel, would  not 
have  materially  added  to  that  understanding. 
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  probable  material  error  or 
injustice; that the applications were denied-without a personal 
appearance; and that the applications will only be  reconsidered 
upon  the  submission  of  newly  discovered  relevant  evidence  not 
considered with these applications. 

The following members of the Board considered these applications 
in Executive Session on 17 April  1997, under the provisions of 
AFI 36-2603: 

Mr. David C. Van Gasbeck, Panel Chairman 
Mr. Jackson A. Hauslein, 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. 

12 Dec 96, w/atchs. 

DD Forms 149, dated 11 Apr 96, w/atchs, and 
Applicantis Master Personnel Records. 
Letter, HQ AFPC/DPAIP2, dated 26 Jul 96. 
Letter, HQ AFPC/DPPPO, dated 19 Sep 96. 
Letter, HQ AFPC/JA, dated 11 Oct 96, w/atchs. 
Letter, HQ AFPC/JA, dated 3 Jan 97. 
Letter, HQ AFPC/DPPPA, dated 15 Jan 97. 
Letters (2), AFBCMR, dated 28 Oct 96 &  undated. 
Letters, Applicant &  Counsel; dated 13 Dec 96, 

w/atchs; 18 Feb 97, w/atch; and 24 Feb 97, 
w/atchs. 

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