ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
4EC 0 8 1998
IN THE MATTER OF:
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558-76-8013
-..
DOCKET NUMBER: 88-028
COUNSEL: NONE
HEARING DESIRED: YES
She be promoted to the grade of lieutenant colonel; or, that the
AF Form 77, Supplemental Evaluation Sheet, which replaced t w o
voided Officer Evaluation Reports (OERs), be altered to inform
promotion boards of the reason for the removal of the reports.
If the AF Form 77 is altered, she be considered for promotion to
the grade of lieutenant colonel by a Special Selection Board
(SSB) .
RESUME OF CASE:
On 22 November 1988, the Board considered and granted an appeal
by the applicant that her Officer Effectiveness Reports (OERs) ,
closing 14 August 1981 and 19 December 1987 be declared void and
removed from her records. A summary of the evidence considered
by the Board and the rationale for its decision is set forth in
the Record of Proceedings (ROP), which is attached at Exhibit H.
The applicant was subsequently considered and selected for
promotion to the grade of major by the CY89 Central Major
Selection Board, which convened on 4 December 1989.
On 17 March 1995, applicant applied to the Board requesting an
Officer Performance Report (OPR) , closing 10 April 1992 , be
amended to reflect a professional military education (PME)
recommendation for Senior Service School; her officer selection
brief (OSB) be updated to reflect award of the Meritorious
Service Medal, Second Oak Leaf Cluster (MSM 20LC); and she be
promoted to the grade of lieutenant colonel; or, in the
alternative, she be granted SSB consideration by the CY94A
Lieutenant Colonel Selection Board. On 26 September 1995, her
application was partially approved by the Board - granting
correction to the OPR and SSB consideration. A summary of the
evidence considered by the Board and the rationale f o r its
decision is set forth in the Record of Proceedings (ROP), Docket
Number 95-01061, at Exhibit I. In view of the Board's decision,
applicant's record was reconsidered for promotion to lieutenant
I’
colonel and nonselected by the 13 January 1997 and 19 May 1997
SSBs .
On 12 August 1997, the applicant wrote the Secretary of the Air
Force concerning the Air Force promotion system (Exhibit J).
Specifically, the applicant believes she was placed at an unfair
disadvantage in the promotion process when she was considered for
promotion to lieutenant colonel by the absence of the two officer
evaluation reports (OERs), which were removed by the Board in an
attempt to remedy the ill effects of a severe sexual harassment
case. She’believes her record can no longer be considered fairly
in the promotion process.
The following is a resume of applicant’s OPR ratings subsequent
to her promotion to the grade of major.
#
Period Endinq
19 Dec 90
LO Apr 92
28 Sep 92
7 Jul 93
6 Jul 94
6 Jul 95
6 Jul 96
##
### 30 May 97
####30 May 98
Eva1 uation
Meets Standards (MS)
MS
MS
MS
MS
MS
MS
MS
MS
# Top report at the time saAe was consiered and nonselected for
promotion to lieutenant colonel by the CY94A Central Lieutenant
Colonel Board, which convened on 11 October 1994
## Top report at the time she was considered and nonselected for
promotion to lieutenant colonel by the CY96C Central Lieutenant
Colonel Board, which convened on 8 July 1996.
### Top report at the time she was considered and nonselected for
promotion to lieutenant colonel by the CY97C Central Lieutenant
Colonel Board, which convened on 21 July 1997.
#### Top report at the time she was considered and nonselected
for promotion to lieutenant colonel by the CY98B Central
Lieutenant Colonel Board, which convened on 1 June 1998.
Information maintained in the Personnel Data System (PDS) reveals
that the applicant has been nonselected for promotion to the
grade of lieutenant colonel by four selection boards and that she
currently has an established date of separation of 31 August
i a a a
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. .
A I R F O R C E E Y A L U A T I Q N :
Pursuant to the Board's request, the Chief, Appeals and SSB
Branch, HQ AFPC/DPPPA, provided an advisory opinion addressing
the issues raised by the applicant in her letter to the Secretary
of the Air Force.
DPPPA stated that they thoroughly reviewed the procedures used in
conducting and processing the applicant's SSB considerations and
find them to be in direct accordance with the governing
instruction which implements the law.
The applicant explains her promotion to the grade of major by the
CY90 Board, with the "holes" in her record, by stating the board
was not as selective or competitive as the lieutenant colonel
selection boards. DPPPA concurs. DPPPA does not concur with the
applicant's contention that the SSB process cannot fairly
consider her record for promotion. Officers are selected and
nonselected by both central boards and SSBs with "holes" in their
records.
DPPPA stated that the applicant's contention that her record
cannot be objectively assessed in the SSB process is unfounded.
At the 2 September 1997 SSB, an officer was recommended to be
selected for promotion to the grade of colonel with one of his
most recent OPRs voided from his record. The applicant's omitted
OERs were much farther down in her record than the selected
individual to whom DPPPA is referring. While all documents in an
officer selection record (OSR) are important, it is common
knowledge that the most recent reports in a record are the most
important, as they reflect performance in the officer's current
grade.
DPPPA stated that it is not Air Force policy for a record to be
selected or not selected for benchmark status on the basis of
whether or not it contains an omitted report. To be selected for
promotion to the grade of lieutenant colonel in-the-promotion
(IPZ) by an SSB requires that the consideree's record outscore
all the originally nonselected records and, at least, tie or
outscore one originally selected record. 'This has been Air Force
policy since 1976. No changes to standards have occurred since
the applicant has been in the Air Force.
DPPPA stated that while the applicant suggests changes to the
appeals and SSB process, it is not within her discretion to
determine how her SSB consideration occurs. DPPPA indicated that
the action to void the OERs from the applicant's record was done
at her request through the appeal process. If the applicant
wanted the P0594A and P0596C selection boards to know why the
reports were voided, she had the option of writing to the
promotion board president. The applicant chose not to exercise
her option of writing to both the central selection boards and
SSBs. While the applicant believes the boards were unable to
render an objective decision due to a lack of information.
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regarding her voided reports, DPPPA believes it was her choice
not to provide them the information she now believes was
pertinent.
DPPPA stated that throughout the applicant's letter and attached
background paper, she continually refers to senior officers who
have told her she has a "promotable" record.
While these
officers are entitled to their opinions of the applicant's
performance and promotion potential, they were not the
individuals specifically charged with assessing her record at the
promotion-board. DPPPA has no reason to believe their judgment
is more accurate than that of a duly constituted board, assessing
the applicant's record in comparison with her peers.
DPPPA stated that unofficial documentation cannot be placed in an
OSR to offer an explanation for the voided action, it is left to
the consideree to inform the board - if they so choose - of the
reason the report was voided.
DPPPA does not recommend the Board grant the applicant direct
promotion to the grade of lieutenant colonel. DPPPA stated the
applicant has failed to prove the appeals or SSB process worked
to her detriment. The applicant received as full and fair
consideration by the central boards and S S B s as allowed, limited
only by her decision not to write letters to each particular
board president. Based on the evidence provided, DPPPA strongly
recommends against direct promotion and deviation from
established board procedures.
A complete copy of this evaluation is appended at Exhibit K.
APPL ICANT 'S REVIEW OF AIR FO RCE E VALUATION:
The Special Selection Board (SSB), or any selection board, is
supposed to rate past performance and thereby assess performance-
based future potential for advancement in rank. The ?@ Form 77
in her records does not reflect on a period of performance.
Rather, it wipes out a period of excellent performance (falsely
described in a retaliatory performance report as otherwise) and
substitutes documentation, which at best could only be described
as "neutral." This did not make her records whole. AFPC is no
doubt aware of this (the potentially prejudicial impact of an AF
Form 77), as it has in the past granted SSB consideration without
the AF Form 77 on file (see attachment 1). If the Board has any
question, it need only compare the AF Form 77 to any OER or OPR
she has received - and it, too, can see how the damage is done.
No letter she could write the selection board would credibly
provide the missing information - nor should she be required to
submit to each selection board materials that, in effect,
members'
prospectively
perceptions. Nor can she (or anyone else) "recreate" a fair OPR
f o r this period because of t h e elements of reprisal involved.
N o r do the instructions to the selection boards provide board
\\ second - gue s s "
promot ion
board
members any help. The only oblique mention of the "holes,, in a
record is found in the Secretary's instruction to the SSB. She
respectfully submits that being made whole (required for full and
fair promotion consideration) does not just mean eliminating a
wrong-it also means restoring what was right. The fact remains,
she cannot be 'made whole" - not because of her error, but
because her rating chain chose to viciously punish her * because
she objected to blatant harassment and subjected her to reprisal
for her complaints regarding that harassment. If the Board
cannot make her record whole for an SSB, then she respectfully
submits t K e Board must consider direct promotion as the fairest
possible solution to this problem.
As she pointed out to the Secretary of the Air Force, although
board members are briefed not to prejudice any records with
missing performance reports, many board members do so
(subconsciously or otherwise) . Equally unfair, neither senior
raters nor PRF management level review boards are provided any
information about the cause of the "hole(s)" in her record
although they, too, make critical promotion decisions that
related directly to the selection process. In effect, the AF
Form 77 (1) will always leave a shadow of doubt, (2) will always
be subject to unfavorable interpretation, and ( 3 ) falls far short
of the performance report it was designed to replace.
The damage done to her records cannot be undone at this date.
She also believes her case is unique. It is impossible to go
back and "recreate" a fair, accurate and unbiased OER.
Accordingly, the only relief she can request is a direct
promotion to the grade of lieutenant colonel. She is ready and
willing to appear before the Board if necessary. Both Major
General McB- - - and Colonel L--- have indicated that they would be
pleased to testify to the Board either by phone or in person.
Both of these officers have extensive experience as central board
and SSB members and in General McB---'s case as SSB presidents.
A complete copy of this response is appended at Exhibit L.
Pursuant to the Board's request, the respective Air Force offices
provided advisory opinions addressing the issues raised by the
applicant in her 31 October 1997 rebuttal.
The Selection Board Secretariat, HQ AFPC/DPPB, stated that they
are unable to confirm or disprove the comments of a former Air
Force officer, Major (Retired) N---, regarding scoring procedures
for Special Selection Boards (SSB) prior to 1983. DPPB indicated
that the current SSB procedures have been in effect since, at
least, February 1983. In June 1988, the Secretary of the Air
Force reviewed the SSB procedures in detail, without change.
Further, the SSBs, which were conducted on 13 January 1997 and
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19 May 1997 to reconsider the applicant for promotion, were in
compliance with all governing directives (Exhibit M).
The Appeals and SSB Branch, HQ AFPC/DPPPA, do not believe the
applicant has raised any new or valid arguments not previously
discussed fully in their initial advisory. DPPPA indicated that
the applicant has not provided any credible evidence to- support
any of her opinions and comments. Rather, she simply refutes
their advisory by expounding on and restating her case. The
applicant believes the method the Air Force uses to correct or
replace mi-ssing reports to have been prejudicial in her case, and
ultimately was to blame for her nonselection to the grade of
lieutenant colonel. As DPPPA previously pointed out, the fact
the applicant was promoted by an SSB to the grade of major with
an AI? Fom 77 filed in her selection record proves selection
boards are not biased by missing documents. DPPPA contends that
the applicant was "made whole" when she was retroactively
promoted to major by the PO489 SSB. A direct promotion now would
be only the beginning of a series of appeals each time she was
nonselected for promotion. While it is distressing the applicant
had to endure these unfortunate circumstances, it is evident she
does not have a competitive record to be selected for promotion
to lieutenant colonel. DPPPA does not believe that the AF Form
77 was a contributing factor in the applicant's nonselection by
either SSB. The statements on the AF Form 77 are not viewed in a
negative light by promotion boards or SSBs. They inform the
board members that an injustice had occurred when the report was
originally written, and the report was subsequently removed by
approval of the Secretary of the Air Force. Numerous applicants
are promoted by SSBs that have had AF Forms 77 in their records.
One recent case in point not only had an AF Form 77 in place of
an OPR, it also had an AF Form 77 in place of an AF Form 709,
Promotion Recommendation Form (PRF) . Both of these reports were
removed by approval of the Secretary of the Air Force, and the
consideree was subsequently promoted by SSB.
There is no
requirement to maintain statistics on how many officers met a
central board with either an AF Form 77 in lieu of an OPR or with
a "corrected copy" statement on an OPR.
As DPPPA previously pointed out, if the applicant desires
subsequent promotion boards to know the situation surrounding the
removal of the OPR, it is up to her. They disagree with the
applicant's belief that it is in the best interest of justice for
the board to deviate from the regulatory guidelines and correct
her report as she specified in her letter to the Secretary of the
Air Force. While they understand the applicant's frustration
with the correction system, DPPPA must stress her case is not
unique. It would not be in the best interest of the majority of
the force to allow an individual to chose the manner in which
corrections to records are made. Even if the applicant were to
prove the promotion system was biased against her based on the AF
Form 77 present in her selection record, DPPPA does not
understand how this correlates to her promotion status. If the
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b rds were founl to be
promote the applicant.
Based on the evidence provided, DPPPA strongly recommended
against direct promotion and deviation from established board
procedures. A complete copy of this evaluation is appended at
Exhibit N.
sgal, the remedy would not be to
. .
e
outst-
s
I,
a
of the usual \I
OSe officers beins - considered because it at best rovj dee
'
Her case is about reprisal - reprisal for resisting the sexual
advances of her squadron commander, reprisal for complaining
about the resulting false derogatory performance report - and the
long lasting effects of those reprisals. Reprisal is relatively
rare in the Air Force, but that is what makes her situation
unique.
As to the issue of granting a Special Selection Board (SSB)
without the AF Form 77 in the file, she provided considerable
evidence, including testimony from senior officers that had
served on regular SSBs that such was the case. These senior Air
Force officers have indicated the presence of an AF Form 77 i
us Uallv vi ewed negativelv bv board members or at l
d
neutral record of - Derformnce -lace
record;. AFPC evaded the Board's request to comment on the issue
of granting an SSB without the AF Form 77 in the file. AFPC's
responses provided extensive additional "rebuttal" commehts
regarding her counter-arguments to their . original advisory
opinion.
AFPC has been silent on the procedural anomalies she described in
her request for reconsideration. For example, AFPC does not
refute the fact its scoring system was "developed to minimize the
selection rate." In fact, AFPC actually confirmed a former AFPC
official's (Major N---) comment that the Secretary of the Air
Force did not approve the SSB procedures until 1988-six years
after SSBs began.
She does not take issue with the SSBs having been constructed and
administratively conducted in accordance with the written
requirements of relevant statutes and instructions. She asks the
Board, however, to look at the basic requirement for an SSB in
view of her situation and according to Title 10, Section 628.
Her record before the various boards did not "appear as they
would have appeared." It is therefore hard to understand how an
SSB could ever effectively and fairly evaluate her record of
performance.
She was selected for promotion to the grade of major by a normal
central selection board in 1989. An SSB did not promote her to
major (or any other rank) nor was she retroactively selected for
promotion. Thus, the whole AFPC premise f o r their position is
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and perhaps they are confusing the
built on a false assertion,
issues.
A general officer in her chain of command very recently discussed
with her the results of the most recent Management Level Review
(MLR) of which he was a member. This MLR considered her records
(above the zone) in order to establish the promotion
recommendation for the next selection board for lieutenant
colonel. He indicated the board members considered her overall
record to be outstanding. However, he also indicated that the
MLR members considered the missing reports to be a "problem', and
agreed "were it not for the [negative] effect of the missing
[reports]" she would readily have competed for and probably
received a definitely promote "DP.', From this candid exchange it
would seem the adverse effect of missing performance reports on
board members' perceptions of missing performance reports still
exists (AFPC's view notwithstanding) and will continue to do so
at all levels.
AFPC is correct that she did not complain when she was selected
for major. She was very relieved that an unjustly rendered false
OER that would certainly have seen her passed over had been
removed and that she had been selected. She did not know then
that the AFBCMR's well-intended corrective action had placed her
chances of further promotion, regardless of her future
performance level, at grave risk.
AFPC's surmise that she was not selected because her record did
not match the quality of the benchmark records is an unfounded
assumption not based on any specific testimony or evidence. On
the other hand, her assertion to the contrary is based on first
hand testimony that, if the Board desires, can readily be made
available (referenced testimony from selection board members).
AFPC's statement that the AF Form 77 is not viewed in a negative
light is specifically contradicted by former members and
presidents of central promotion boards and special selection
boards who have discussed their board experiences with her.
While an AF Form 77 documents the injustice took place, it
neither explains it nor corrects it. AFPC has provided no
rebuttal comment concerning her previous statements that a letter
to the selection board simply does not work.
As she previously pointed out, AFPC is somewhat in error
regarding what she has requested. She requested that the system
be changed in order that promotion boards could more equitably
consider the record of performance of those officers who have AF
Form 7 7 s in their promotion folders. In the absence of any
recognition by AFPC that officers with missing performance
reports are in fact handicapped in the process of competition for
promotion (and in the absence of a resulting change to the AF
Form 77 process) , the remedy is indeed to promote such officers
if they are otherwise qualified.
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She readily understands there may be some reluctance on the part
of the Board to perhaps set what could be regarded as a general
precedent whereby any officer who has a missing performance
report could challenge their nonselection for promotion on that
basis and possibly receive a direct promotion. The setting of
such a precedent is not required since her case is unusual -
resulting from the long-lasting effects of reprisal,. ‘possibly
unique.
A complete copy of this response is appended at Exhibit P.
%
1. 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 unpersuaded that the applicant should be
directly promoted to the grade of lieutenant colonel or that the
AF Forms 77 should be altered and reviewed by a Special Selection
Board (SSB). Applicant’s contentions and supporting documents
were carefully considered.
We observe that due to the
applicant‘s request, two Officer Performance Reports (OERs),
closing 14 August 1981 (as a second lieutenant) and 19 December
1987 (as a captain), were removed from her records and AF Forms
77 were inserted in place of the now voided reports. In this
respect, we note that it is standard Air Force policy to insert
the cited form in a member’s record when a performance report is
voided and that it is not unique to the applicant’s records. No
evidence has been presented which would lead us to believe that
the cited form was erroneous or contrary to the provisions of the
Air Force regulations and policies. While the applicant may view
her circumstances as unfair, we do not believe the AF Form 77, in
and by itself, is prejudicial to the applicant. We have seen no
indication that the applicant was treated unfairly in comparison
to similarly situated officers who have had a performance report
voided. In addition, we note that the applicant could have
written letters to each particular board president concerning the
basis for removal of the OERs; however, she chose not to write
the board president regarding the circumstances.
2. We believe the applicant has received appropriate promotion
consideration as a result of the previous corrective action by
the AFBCMR.
The fact that she has not been selected for
promotion cannot be blamed on one specific thing; i.e., the
voided OERs or the AF Form 77. Applicant’s nonselections are
indicative of the intensely competitive nature of the promotion
selection process and it cannot be determined that one sole
factor was the reason for these nonselections. Selection boards
use the whole person concept to subjectively assess each eligible
officer’s relative potential to serve in the next higher grade
and there is no guarantee the applicant would have been promoted
under any circumstances. We therefore agree with the Air Force
analyses of this case and find an insufficient basis to conclude.
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A..
has suffered a promotion injustice.
that th- a m 1 i can
Accordingly, in the absence of persuasive evidence that the
applicant's record was substantially in error, or that the board
was unable to make a reasonable decision concerning her
promotability in relationship to her peers, we find no compelling
basis to recommend granting the relief sought in this
application.
3. 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.
D 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 6 October 1998, under the provisions of AFI
36-2603:
Mr. Michael P. Higgins, Panel Chair
MS. Ann L. Heidig, Member
Mr. Steven A. Shaw, Member
The following documentary evidence was considered:
Exhibit H .
Exhibit I.
Exhibit J.
Exhibit K.
Exhibit L.
Exhibit M.
Exhibit N.
Exhibit 0.
Exhibit P.
Record of Proceedings, dated 2 Dec 88.
Record of Proceedings, dated 23 Oct 96.
Letter from applicant, dated 12 Aug 97.
Letter, HQ AFPC/DPPPA, dated 16 Sep 97.
Letter from applicant, dated 31 Oct 97, w/atchs.
Letter, HQ AFPC/DPPB, dated 27 Apr 98.
Letter, HQ AFPC/DPPPA, dated 1 May 98.
Letters, SAF/MIBR, dated 6 Oct 97 and 18 May 98.
Letter from applicant, dated 15 Jun 98, w/atchs.
Panel Chair
v
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AF | BCMR | CY2003 | BC-1990-01087
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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. 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. The senior rater used the PRF to make an end-run around the OPR process after the ERAB decision to void the evaluators original referral OPR and PRF.
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c. The OPR, closing out 28 November 1989, be amended to reflect a closing date of 18 October 1990. d. The Officer Performance Report (OPR), closing 20 June 1994, be amended by changing the statement, “Returned to MG with trepidation, but has met the challenge and is leading Medical Logistics to a new level,” to “Assumed duties, has met the challenge and is leading Medical Logistics to a new level.” e. His Officer Selection Brief (OSB) be corrected to reflect the duty title, “Commander,...
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