RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-02083
            INDEX NUMBER:  131.00; 111.05

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Performance Reports (OPRs),  rendered  for  the  periods  17 May
1994 through 16 May 1995 and  17  May  1995  through  14 December  1995,  be
removed from his records and that he be given  a  direct  promotion  to  the
grade of lieutenant colonel.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The commanding  officer  reprised  against  him  after  disclosed  protected
communications were revealed by two senior commanding officers in his  chain
of command.  He advised two senior commanding  officers  that  his  squadron
commander treated him unfairly, falsely incriminated  him  in  a  Report  of
Survey, and falsified documents.   Protected  communications  were  breached
and the squadron commander reprised against  him  by  diluting  two  of  his
OPRs.  The diluted OPRs prevented him  from  being  promoted  to  lieutenant
colonel.

He filed a reprisal complaint  at  the  time  of  discovery,  23  May  1996.
SAF/IGS investigated and concluded  that  reprisal  did  not  occur.   After
further review, he discovered that the  SAF/IGS  investigation  was  biased,
was not thorough and was unbalanced.  Key witnesses  were  not  interviewed.
Interviewing  all  witnesses  is  a   requirement   of   SAF/IGS’   Military
Whistleblower Reprisal Review Criteria Work Sheet,  but  the  worksheet  was
not adhered to or complied with.  He attempted  to  redress  the  complaint,
but SAF/IGS  declined  to  reopen  the  investigation.   The  SAF/IG  system
repeatedly failed to investigate all of his allegations and failed to  apply
the spirit and intent of  regulations/instructions  and  policies  governing
the prohibition of actions committed in his case--no due process.

The applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 30 December 1982,  the  applicant  was  appointed  a  second  lieutenant,
Reserve of the Air Force, and was voluntarily  ordered  to  extended  active
duty on the same date.  He  was  progressively  promoted  to  the  grade  of
major, effective 1 October 1994.

A resume of the applicant’s  last  10  Officer  Performance  Reports  (OPRs)
follows:

      PERIOD ENDING    OVERALL EVALUATION

      26 Jun 93  Meets Standards (MS)
      16 May 94  MS
  *   16 May 95  MS
 **   14 Dec 95  MS
      25 Oct 96  MS
      23 Jul 97  MS
  #   30 Apr 98  MS
 ##   19 Jan 99  MS
###   01 Sep 99  MS
      31 Mar 00  MS

  * Contested report.

 ** Contested report; administrative correction was made to  the  report  on
26 March 1996, correcting the period of the report.

  # Top report in file when considered and not  selected  for  promotion  by
the CY98B Lieutenant Colonel Board, which convened on 1 Jun 98.

 ## Top report in file when considered and not  selected  for  promotion  by
the CY99A Lieutenant Colonel Board, which convened on 19 April 1999.

### Top report in file when considered and not  selected  for  promotion  by
the CY99B Lieutenant Colonel Board, which convened on 30 November 1999.

The Evaluation Reports Appeal Board (ERAB) denied  the  request  on  9  June
1999.  They stated that the allegations of biased ratings and a  personality
conflict with members of the rating chain were unsubstantiated.

_________________________________________________________________

AIR FORCE EVALUATIONS:

The  Staff  Judge  Advocate,  AFPC/JA,   reviewed   this   application   and
recommended that the two OPRs be voided and  removed  from  the  applicant’s
records.  They noted  that,  with  the  exception  of  the  two  reports  in
question,  the  applicant  has  an  outstanding   record   of   performance.
Nevertheless, he was nonselected for promotion by  three  central  selection
boards.  While the reports do not contain any negative information,  neither
of them contains a strong recommendation for  a  duty  assignment  following
his  then-current  position  nor   do   they   contain   a   strong   school
recommendation.  A promotion analysis done at AFPC/DPPP revealed that  these
reports “starkly” contrasted with the applicant’s other performance  reports
both prior to and subsequent to the contested reports, and that the  failure
of the rater and additional rater to include  a  sufficient  job  “push”  or
school  recommendation  were  likely  the  reasons  why  the  applicant  was
nonselected for promotion.

AFPC/JA agreed with SAF/IGS that the evidence of record is  insufficient  to
establish that the relatively weak OPRs written by the rater and  additional
rater were the result of reprisal because of the  protected  communications.
Underlying  the  applicant’s  allegation,  however,  is  his   belief   that
unethical and unfair practices committed  by  his  commander  precluded  his
receiving a fair and unbiased performance report.  While the  applicant  did
not couch his request for relief in those terms and chose instead to  narrow
his basis to a claim of reprisal, AFPC/JA believes that a  preponderance  of
the evidence of record supports the broader allegation and provides a  basis
to void the two reports.  Notwithstanding that  the  applicant  couched  his
request for relief in terms of reprisal,  the  more  general  allegation  of
unfair and unethical treatment in the squadron that underlies  the  reprisal
allegation does provide a basis  upon  which  the  Board  can  grant  relief
without the need  to  deny  the  application  and  force  the  applicant  to
reconstitute his basis for relief and arguments in support thereof.

They started their analysis with a realization that the  normal  rules  that
are applied in assessing a challenge to an OPR do not apply in  a  situation
wherein an applicant alleges that a  poor  report  is  the  result  of  bias
and/or  unfair  treatment  on  the  part  of  those  in  the  rating  chain.
Typically,  applicants  are  required  to   support   their   request   with
recommendations from raters and additional raters that  the  report  was  in
error and should be corrected.  However, if the basis for the allegation  is
that these very persons in the rating chain are the cause  of  the  problem,
their support is not likely to be forthcoming.  Nevertheless, the  applicant
has received the support of the additional rater on  the  reports,  who,  in
AFPC/JA’s opinion, corroborated the applicant’s allegations.

As AFPC/JA examined the evidence in the  case  file,  they  noted  that  the
evidence provided by SAF/IGS in its Summary Report of Investigation is  very
sketchy.  It does not appear that the investigation  ever  looked  into  the
broader issue of the racial climate in the squadron and how  that  may  have
impacted the applicant’s relationship with the rater.  No other evidence  or
rationale is provided in the summary.  Perhaps, as  the  applicant  alleges,
SAF/IGS did not talk to  enough  persons  in  the  organization  to  get  an
accurate assessment of the situation.

While they are not in a position to assess the validity of  the  applicant’s
claim, AFPC/JA could not help but note that he provided numerous  statements
from seemingly reliable persons from within the organization who were  close
to the situation and who have  all  confirmed  that  the  applicant  was  an
outstanding performer who was  caught  up  with  a  squadron  commander  who
treated him unfairly, most likely due at  least  in  part  to  racial  bias.
Corroborating  all  of  the  evidence  are  two  communications   from   the
additional rater of the reports--first, a 14 November  1998  e-mail  to  the
applicant, and a letter dated 1 February 1999, to  the  Board  in  which  he
verifies without qualification the applicant’s  outstanding  performance  of
duty while assigned to Hurlburt  Field.   The  additional  rater’s  comments
strongly supports the claim of a personality conflict and  corroborates  the
other evidence which is  so  numerous  that  the  relationship  between  the
applicant and his commander and the overall racial dynamics of the  squadron
precluded the applicant  from  receiving  a  fair,  impartial  and  unbiased
performance report.  In reaching this  conclusion,  AFPC/JA  cautioned  that
they are not suggesting that the applicant has proven beyond all doubt  that
he was denied the opportunity for a fair performance assessment; but he  has
established sufficient doubt to resolve whatever uncertainty there might  be
in his favor.

Finally, AFPC/JA notes that one other factor which supports  the  conclusion
that the OPRs were not rendered in the requisite fair and  impartial  manner
is the fact that the reports are so out of character  with  the  applicant’s
otherwise truly outstanding record both  before  and  after  his  tenure  at
Hurlburt Field.  The fact that the  only  two  reports  in  the  applicant’s
record that are anything but outstanding occurred during the time  frame  in
question supports a conclusion that these reports are strongly suspect.

For all of the reasons  cited,  the  reports  should  be  removed  from  the
applicant’s records.  However, AFPC/JA does not support a direct  promotion.
 Air Force policy mirrors the position held by Congress and DoD that  errors
ultimately affecting  promotion  should  be  resolved  through  the  use  of
Special  Selection  Boards  (SSBs).   Direct  promotion   should   only   be
considered in the most extraordinary circumstances where  SSB  consideration
has been deemed to be totally unworkable.  In their  view,  the  applicant’s
case  does  not  fall  into  that   category.    AFPC/JA   recommended   SSB
consideration.  A complete copy of the evaluation is at Exhibit C.

The Chief, Appeals and SSB Branch,  AFPC/DPPPA,  accepted  the  findings  of
AFPC/JA.  The complete evaluation, with attachments, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to the  applicant  on  29
September 2000, for review and response  within  30 days  (Exhibit E).   The
applicant reviewed the advisory opinions and stated that it  is  the  intent
of Congress and DoD to judge  each  case  on  its  own  merit  and  the  DoD
directive gives each Military Department the discretion  to  direct  promote
military members who have  been  wrongfully  penalized  and  treated  in  an
unfair manner.  The applicant’s  complete  response,  with  a  copy  of  his
original application and attachments, is at Exhibit F.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of probable error or injustice warranting partial  relief  of  the
applicant’s requests.  We  noted  the  applicant’s  complete  submission  in
judging the merits of the case; however, we  agree  with  the  opinions  and
recommendations of the Air  Force  offices  of  primary  responsibility  and
adopt the rationale expressed as the  basis  for  our  conclusion  that  the
contested reports are not fair and accurate assessments of  the  applicant’s
duty performance and should be removed from his records.

4.  Applicant’s request for a direct promotion to the  grade  of  lieutenant
colonel was duly noted.  However, we believe a  duly  constituted  selection
board, applying the complete promotion criteria, is in the best position  to
render this determination, and that its prerogative to do so should only  be
usurped under extraordinary circumstances.  Therefore,  it  is  our  opinion
that the most appropriate and fitting relief is  to  place  the  applicant’s
record before Special Selection Boards (SSBs)  for  consideration  beginning
with the CY98B Lieutenant Colonel Selection Board and any subsequent  boards
to which he is entitled based on the corrected record.

5.  The documentation provided with this case was  sufficient  to  give  the
Board  a  clear  understanding  of  the  issues  involved  and  a   personal
appearance, with or without counsel, would  not  have  materially  added  to
that understanding.  Therefore, the request for a hearing is  not  favorably
considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that the Field Grade Officer  Performance
Reports, AF Forms 707A, rendered for the periods 17 May 1994 through 16  May
1995 and 17 May 1995 through 14 December 1995, be declared void and  removed
from his records.

It is further recommended that he be considered for promotion to  the  grade
of lieutenant colonel by a Special Selection Board for the CY98B  Lieutenant
Colonel Selection Board and any subsequent  boards  for  which  the  Officer
Performance Reports closing 16 May 1995 and 14 December 1995, were a  matter
of record.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 9 November 2000, under the provisions of AFI 36-2603:

            Mr. Richard A. Peterson, Panel Chair
            Mr. George Binks, Member
            Mr. Jackson A. Hauslein, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 28 Jul 2000, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/JA, dated 14 Sep 2000.
      Exhibit D.  Letter, AFPC/DPPPA, dated 19 Sep 2000, w/atchs.
      Exhibit E.  Letter, SAF/MIBR, dated 29 Sep 2000.
      Exhibit F.  Letter, Applicant, dated 16 Oct 2000, w/atchs.




               RICHARD A. PETERSON
               Panel Chair





AFBCMR 00-02083



MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to, be corrected to show that the Field Grade Officer Performance
Reports, AF Forms 707A, rendered for the periods 17 May 1994 through 16 May
1995 and 17 May 1995 through 14 December 1995, be, and hereby are, declared
void and removed from his records.

      It is further directed that he be considered for promotion to the
grade of lieutenant colonel by a Special Selection Board for the CY98B
Lieutenant Colonel Selection Board and any subsequent boards for which the
Officer Performance Reports closing 16 May 1995 and 14 December 1995, were
a matter of record.





                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency