RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02873
            INDEX CODE:  111.01

            COUNSEL:  CHARLES W. TUCKER

            HEARING DESIRED:  No


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered for the period 2 Jan  97
through 1 Jan 98 be declared void and removed from his record.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The referral OPR was  not  written  by  a  rater  who  had  first-hand
knowledge of his removal  from  command;  there  were  no  grounds  to
relieve him  from  command;  the  command-directed  investigation  was
biased because he was not provided an opportunity to  make  statements
on his own behalf; the referral OPR erroneously  states  that  he  was
relieved based on unprofessional conduct and  inappropriate  treatment
of subordinates; he did not receive feedback prior to his removal from
command; his former commander did not write  a  letter  of  evaluation
(LOE) to document the circumstances pertaining to his relief; and, the
rater assigned from 20 Apr 97 to 11 Aug 97 did not provide an  LOE  or
OPR.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
22 Sep 80.  He is currently serving on extended  active  duty  in  the
grade of lieutenant colonel, effective, and with a date of rank  (DOR)
of 1 Dec 96.




Applicant’s Officer Effectiveness Report (OER) and OPR  profile  since
1990 follows:

            PERIOD ENDING          OVERALL EVALUATION

              4 May 90               Meets Standards
              4 May 91               Meets Standards
              4 May 92               Meets Standards
              4 May 93               Meets Standards
              1 Apr 94               Meets Standards
              1 Apr 95               Meets Standards
              1 Jan 96               Meets Standards
              1 Jan 97               Meets Standards
            * 1 Jan 98     Does Not Meet Standards (Referral Rpt)
             27 Jun 98               Meets Standards
             27 Jun 99               Meets Standards

*  Contested OPR.

From 19 Feb through 31 Mar 97, an  investigation  was  conducted  into
allegations made by several  members  of  the  436th  Logistics  Group
against the applicant.  A Report of Investigation (ROI), dated  31 Mar
97, revealed the following findings, analysis, and conclusions:

     1. Allegation that  applicant  made  disparaging  remarks  about
        individuals  in  front  of   peers   and   subordinates   was
        substantiated.

     2. Allegation that  applicant  used  inappropriate  language  in
        public which demeaned unit supervisors and  undermined  their
        authority was substantiated.

     3. Allegation that applicant displayed leadership style contrary
        to the Chief of Staff’s policy denouncing use of fear  and/or
        intimidation was substantiated.

     4.  Allegation  that  applicant   created   an   atmosphere   of
        intimidation was substantiated.

     5. Allegation that applicant contributed  to  the  prejudice  of
        good order and discipline by abusing the chain of command was
        substantiated.

     6. Allegation that  applicant  failed  to  set  the  example  as
        commander and an officer by violating unit policies  was  not
        substantiated.  That he failed to set the example  with  good
        judgment was substantiated.

     7.   Allegation   that   applicant   developed    unprofessional
        relationships with military members was substantiated.

     8. Allegation that applicant allowed a former first sergeant  of
        the  Supply  Squadron  to  be  absent   without   leave   was
        inconclusive requiring further investigation.

     9. Allegation that applicant violated Air Force Instructions  by
        delegating  approval  of  Consolidated  Inventory  Adjustment
        Document Register (M-10 Report) from himself  to  the  deputy
        chief of supply was substantiated.

    10.  Allegation  that  applicant  reprised  against  a   civilian
        employee after learning she testified in an investigation  of
        a complaint alleging applicant  committed  sexual  harassment
        was not substantiated.

    11.  Allegation  that  applicant  encouraged  and  supported  the
        establishment of a temporary vehicle painting operation which
        failed to ensure  a  safe  working  environment  for  persons
        conducting  the  painting  was   inconclusive.    That   this
        operation may have been the source of heavy  metals  released
        into  the  industrial  waste  water,   violating   OSHA   and
        environmental standards was not substantiated.

    12. Allegation that applicant violated the Privacy Act of 1974 by
        sending an e-mail message to everyone in the Supply  Squadron
        which contained a Powerpoint slide presentation of the Aug 96
        Wing Quality Review Board was not substantiated.

    13.  Allegation  that  applicant  prejudiced   good   order   and
        discipline and breached custom of the  service  by  assigning
        two lieutenants to a self-help  work  detail  with  a  senior
        noncommissioned officer (NCO) designated as their  supervisor
        was substantiated.

    14. Allegation that applicant violated Air Force Instructions  by
        conducting an officer performance  feedback  session  with  a
        witness present was substantiated.

    15.  Allegation  that  applicant  subjects   his   personnel   to
        humiliation, ridicule and sarcasm was substantiated.

    16. Allegation that applicant communicated threatening speech was
        substantiated.

The Investigation Officer recommended the following:

     1. Consultation  with  the  436th  Airlift  Wing/Judge  Advocate
        (AW/JA) to evaluate the appropriateness of removing applicant
        from command.

     2.  Consultation  with  the  436th   AW/JA   to   evaluate   the
        appropriateness  of  disciplinary  action  regarding  several
        counts of Uniform Code of Military Justice (UCMJ)  violations
        identified in the report.

     3. Investigate the allegation that  applicant  fraternized  with
        enlisted members.

     4.  Administratively  hold  the  former  first   sergeant   from
        retirement pending the completion of  an  investigation  into
        the allegation that he was absent without leave.

       5.     MSgt  C----  should  obtain  an   occupational   medical
examination  to  determine  the  degree  to   which   (if   any)   his
participation in the  spray  painting  operation  contributed  to  his
medical condition.

On 3 Apr 97, a legal review of the investigation  revealed  that  each
allegation had been adequately addressed and  that  the  investigating
officer’s factual conclusions were supported by a preponderance of the
evidence contained in the record.

On 11 Apr 97, the commander of  the  436th  Logistics  Group  formally
removed the applicant from command of the 436th Supply Squadron  as  a
result  of  a  Commander-Directed  Investigation  (CDI)  conducted  to
determine the validity of complaints made by several  members  of  the
436th Logistics Group against the  applicant.   All  but  one  of  the
allegations were substantiated.  Applicant appealed to  the  commander
and to the commander’s successor in the form of  a  detailed  rebuttal
for a reversal of the decision; however, his appeal  was  denied  both
times.

On 2 Jun 97, applicant received a Letter of  Admonishment  (LOA)  from
his commander indicating he engaged in inappropriate  conduct  towards
subordinates that  was  unprofessional;  he  failed  to  exercise  the
qualities of leadership essential to command; he used abusive language
and public ridicule toward subordinates that undermined unit  cohesion
and morale; he routinely used profanity and  made  derogatory  remarks
about other subordinates; and, he ordered two  second  lieutenants  in
his command to perform a work detail under the supervision of an NCO.

On 8 Nov 97, a Supplemental  ROI  was  prepared  by  an  investigating
officer to conduct an  investigation  into  matters  relating  to  the
Article 138 Complaint  filed  by  the  applicant.   The  investigating
officer concluded that it was a commander’s prerogative to select  his
subordinates and it was also his prerogative to remove  them  when  he
has lost confidence in their ability to execute their responsibilities
in a manner that he deems appropriate.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Promotion, Evaluation &  Recognition  Division,  AFPC/DPPP,
reviewed  this  application   and   indicated,   despite   applicant’s
contention to the contrary,  the  rater  was  knowledgeable  regarding
applicant's removal from command.  A rater is charged  with  assessing
and documenting what the officer did, how well  he  did  it,  and  his
potential based  on  that  performance  during  the  entire  reporting
period.  AFI 36-2402, paragraph 1.2, states, “In  determining  whether
or not to record information on the OPR,  evaluators  should  consider
the following:  the vast majority of Air Force  officers  serve  their
entire  career  with  honor  and  distinction.   Failure  to  document
misconduct which reflects departure from the core values  of  the  Air
Force does a disservice to  all  officers  competing  for  promotion.”
DPPP,  therefore,  concludes  that  the  referral  OPR  would  be   an
inaccurate assessment if it did not mention his removal from command.

In regard to the  applicant’s  contentions  that  his  rater  did  not
request input from him to use in preparing the now contested  referral
OPR, it is not required.  It is the rater’s ultimate responsibility to
determine which accomplishments are included on the OPR and whether or
not it is necessary for him  to  gather  additional  information  from
other sources (including the ratee) in order  to  render  an  accurate
assessment of the individual.

While the applicant contends the investigation was biased  and  flawed
and there were no grounds to relieve  him  from  command  because  the
report of investigation did not include input  from  him,  a  trained,
unbiased investigating officer from social actions concluded, “It is a
commander’s prerogative to select his subordinates and it is also  his
prerogative to remove them  when  he  has  lost  confidence  in  their
ability to execute their responsibilities in a manner  that  he  deems
appropriate.”  The  investigating  officer  also  concluded  that  the
commander who removed the applicant had sufficient reason  to  believe
the  allegations  made   against   the   applicant   were   adequately
substantiated without testimony from the  applicant  and  he  has  not
proven the investigation was  biased.   DPPP  therefore  believes  the
referral OPR was an accurate  assessment  of  applicant’s  performance
during the contested reporting period.

The applicant believes both of his former raters should  have  written
letters of evaluation or an OPR to document the circumstances  pending
to his relief of command during the contested report period.  AFI  36-
2402, paragraph 6.7, states, in part, “LOEs are optional....”  In  the
applicant’s case, if either of his raters had decided  to  prepare  an
LOE  to  document  the  circumstances  surrounding  his  removal  from
command, they would have been  required  to  prepare  a  referral  OPR
instead of the LOE.  AFI 36-2402, paragraph 6.7.5.1,  states,  “If  an
LOE prepared by the rater would contain referral comments,  the  rater
prepares an OPR instead.  The reason for the report will be  “Directed
by HQ USAF.”  Neither of the applicant’s former raters  were  required
to prepare an OPR because one year had not  passed  since  applicant’s
last report when the change of reporting  officials  (CROs)  occurred.
DPPP also notes that neither of the applicant’s former raters had  the
required 120 days’ supervision necessary to render an  OPR  (114  days
and 108 days).  DPPP, therefore, concludes that no violation of AFI 36-
2402 occurred in this instance.

The applicant was the subject  of  a  command-directed  investigation;
however, he did not include a copy of the ROI  for  review.   However,
the 2 Jun 97 LOA  the  applicant  received  confirmed  he  engaged  in
inappropriate conduct towards subordinates that was unprofessional; he
failed to exercise the qualities of leadership essential  to  command;
he used abusive language and public ridicule toward subordinates  that
undermined unit cohesion and morale; he routinely used  profanity  and
made derogatory remarks about other subordinates; and, he ordered  two
second lieutenants in his command to perform a work detail  under  the
supervision of an NCO.

Applicant repeatedly states that his  commander  made  a  decision  to
remove him from command without hearing both sides of the story and he
is now asking the Board to make a decision to remove  a  referral  OPR
from his records based on his removal from command—without giving  the
Board the opportunity to review all of the  evidence  surrounding  his
removal  from  command.   DPPP  suggests  the  applicant  include   an
unredacted copy of the ROI to  support  his  appeal—especially  if  he
believes the information in  the  restricted  release  file  would  be
essential to his  case.   Although  he  claims  he  never  received  a
complete copy of the ROI, he may ask the releasing agency  to  forward
the information to the Board.  He must waive, in writing, the right to
review the information and include a  copy  of  the  waiver  with  his
rebuttal comments to DPPP’s advisory.

DPPP further states that Air Force policy is that an evaluation report
is accurate as written when it becomes a matter of record and it takes
substantial evidence to the contrary  to  have  a  report  changed  or
voided.  To effectively challenge an OPR, it is important to hear from
all the evaluators on the contested report—not only  for  support  but
for  clarification/explanation.   The  applicant  failed  to   provide
support from anyone in the rating chain of the contested report and in
the absence of information from evaluators, official substantiation of
error or injustice from the Inspector General (IG) or  Social  Actions
is appropriate.  Based  on  the  evidence  provided,  DPPP  recommends
denial.

A complete copy of the Air Force evaluation is attached at Exhibit C.

The Staff Judge Advocate, AFPC/JA, also reviewed this application  and
indicated that DPPP provided  an  excellent  advisory  in  this  case,
particularly with respect to  the  technical  issues  raising  alleged
violations of the governing Air Force instruction.   JA  concurs  with
their advisory and offers a few additional comments.

Applicant was investigated, subsequently admonished  and  relieved  of
his duties, and ultimately received a referral OPR because he  engaged
in  inappropriate  conduct  towards  subordinates  that   was   deemed
unprofessional and which called into serious question his  ability  to
command.  The LOA administered  to  the  applicant,  dated  2 Jun  97,
provides in particular:

    My investigation has revealed that you failed to exercise the
    qualities of leadership essential to command.  Your use of abusive
    language and public ridicule towards subordinates has undermined
    unit cohesion and morale.  In the presence of junior officers and
    NCOs, you routinely use profanity and made derogatory remarks
    about other subordinates.  Further, you ordered two second
    lieutenants in your command to perform a work detail under the
    supervision of an NCO.  This action had an obvious negative impact
    on morale and good order in the squadron under your command.  I
    recognize the fact that, as a commander, you had to deal with
    difficult personalities, but this in no way excuses you from your
    responsibilities as an officer and as a commander.

Applicant challenges these conclusions and argues that he  was  denied
due process in having been relieved of command, in the handling of the
original investigation, in the handling  of  subsequent  Article  138,
UCMJ, investigations, and in the receipt of  the  challenged  referral
OPR.  JA disagrees.

First,  notwithstanding  applicant’s  claim  to  the   contrary,   the
statement in his OPR to the effect that he  was  relieved  of  command
because of unprofessional conduct and inappropriate  treatment  is  an
absolutely true statement.  In fact, he was relieved of  command,  and
the  basis  provided  by  his  superiors  for   doing   so   was   the
unprofessional conduct  and  inappropriate  treatment  of  individuals
described in the  LOA.   Nevertheless,  applicant  claims  that  these
conclusions are incorrect and that he was denied due process  and  the
opportunity to effectively respond to  the  allegations  that  led  to
these conclusions.  In particular, he claims he was denied  his  right
to provide written statements to the investigating officer in response
to a series  of  questions  that  would  have  addressed  the  various
allegations against him.  In fact,  the  evidence  in  the  case  file
reveals that applicant was offered the opportunity to  be  interviewed
by the investigating officer but that, based  on  the  advice  of  his
counsel, he declined an  oral  interview  in  favor  of  answering  in
writing a series of written questions posed  to  him.   Based  on  the
advice of the wing legal office, however,  the  investigating  officer
elected not to interview the applicant in this manner.  Moreover,  the
investigating officer concluded  that  he  had  more  than  sufficient
information to establish the alleged behavior  without  the  need  for
such an interview.  While some input from  the  applicant  would  have
provided a more complete investigation, it was not  required  in  this
case.  More importantly, the  applicant’s  rights  were  not  violated
since he was offered  an  opportunity  to  respond;  it  was  not  his
prerogative to determine the methodology that an investigating officer
had to use to obtain his statement.

Even if JA assumed arguendo that the  failure  to  obtain  information
from the applicant during the original investigation was improper,  it
was clearly harmless under all the facts  and  circumstances  in  this
case.  In the end, after having received inputs from the applicant  in
response to all of the  most  serious  allegations  against  him,  the
applicant’s  commander  determined  nevertheless  that  he  had   lost
confidence in the applicant as a commander, that the applicant  should
be relieved of command, and  that  the  applicant  had  committed  the
various infractions detailed in the LOA.  Contrary to  the  statements
of the applicant, his commander explained that he dropped the  initial
letter of reprimand against the applicant not because he was convinced
by the applicant’s responses that the latter had failed to commit  the
acts in question, but rather, because of frustrations with the  wing’s
legal office in  bringing  the  case  to  a  close.   In  response  to
questioning by an investigating officer appointed by the commander  of
the 21st Air Force to look into matters relating  to  the  applicant’s
Article 138  complaint,  applicant’s  commander  reiterated  that  the
information provided by applicant in response to the  allegations  did
not change or alter his opinion with respect to  the  trust  of  those
allegations (see applicant’s Exhibit 13).  Based  on  the  information
available in the case file, the applicant’s commander’s  decision  was
fully supported by the evidence of record (JA noted that on 19 Nov 97,
Headquarters  USAF/JAG,  reviewed  the  records  of  complaints  filed
against applicant’s commander under Article 138, UCMJ, and  determined
that the actions taken were appropriate and sustained the actions).

Finally, JA would agree with the analysis and  conclusion  reached  by
the Article 138 investigator referenced above (Exhibit 13) that it  is
the prerogative of a commander to select his subordinates and also his
prerogative to remove them  when  he  has  lost  confidence  in  their
ability to  execute  their  responsibilities  in  a  manner  he  deems
appropriate.  Appointment to command is a unique privilege in military
society, a privilege that can be revoked by a  superior  commander  at
any  time.   There  is  no  notice  nor  are  there  any  other  legal
requirements associated with the decision to relieve  a  commander  of
command.  In JA’s view, the applicant’s commander acted reasonably and
in accordance with the evidence available to him.   The  referral  OPR
which followed accurately reflects what occurred and is proper.  As JA
noted at  the  outset,  the  specific  procedural  challenges  to  the
referral OPR process (that the rater had no first-hand knowledge, that
the rater did not obtain input from the ratee, that no previous raters
had written an LOE, etc.) were adequately discussed  by  DPPP  in  its
advisory and correctly resolved adversely to  the  applicant.   Should
the Board determine that the evidence in the  existing  case  file  is
insufficient to render its decision, JA would agree with DPPP that the
Board should  review  a  complete  copy  of  the  original  report  of
investigation conducted in this case.  In JA’s opinion,  however,  the
evidence in the case file as exists now is sufficient to conclude that
the applicant has suffered no material error or injustice relevant  to
the issues he has raised.  For that reason, JA  recommends  that  this
application be denied.

A complete copy of their evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were  forwarded  to  applicant  on
30 Nov 98 for review and response.  As of this date, no  response  has
been received by this office.

_________________________________________________________________

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 probable error or injustice.  After a review  of  the
evidence of record and applicant’s submission, we  are  not  persuaded
that the OPR in question should be declared void and removed from  his
records.    We   have   thoroughly   reviewed   applicant’s   numerous
contentions; however, we find no persuasive evidence showing that  the
contested OPR is not an accurate assessment of his performance  during
the contested time  period.   Notwithstanding  applicant’s  contention
concerning the rater of the OPR, we are persuaded the rater was  fully
knowledgeable  of  applicant’s   removal   from   command   and   find
insufficient basis that he was unable to render an accurate assessment
of applicant’s performance.  Applicant’s  allegations  concerning  the
investigation into his conduct is duly noted.  However, we do not find
these uncorroborated assertions, in and  by  themselves,  sufficiently
persuasive to override  the  rationale  provided  by  the  Air  Force.
Therefore, we 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.

_________________________________________________________________

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 16 December 1999, under  the  provisions  of  Air
Force Instruction 36-2603:

                  Ms. Martha Maust, Panel Chair
                  Ms. Nancy W. Drury, Member
                  Ms. Rita J. Maldonado, Member
                Mrs. Joyce Earley, Examiner (without vote)

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 5 Oct 98, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPP, dated 4 Nov 98.
     Exhibit D.  Letter, AFPC/JA, dated 16 Nov 98.
     Exhibit E.  Letter, AFBCMR, dated 30 Nov 98.




                                   MARTHA MAUST
                                   Panel Chair