RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 00-00060
INDEX NUMBER: 131.00; 111.01
XXXXXXXXXXXX COUNSEL: Alison Ruttenberg
XXX-XX-XXXX HEARING DESIRED: Yes
_______________________________________________________________
APPLICANT REQUESTS THAT:
His application be processed under the Military Whistleblowing
protection provisions.
It appears that the applicant makes the following primary requests:
a. Reinstate him to active duty.
b. Promote him to the grade of lieutenant colonel.
c. Reinstate him to flying status.
d. Expunge his records of a series of adverse actions.
e. Reinstate his security clearance.
The applicant specifically states that he is appealing the following 10
items:
a. The termination of his flying privileges.
b. The termination of his security clearance.
c. The “Do Not Promote” recommendation he received on his
Promotion Recommendation Form (PRF) for the Calendar Year (CY) 1994A
Central Lieutenant Colonel Promotion Board.
d. The referral Officer Performance Report (OPR) rendered on
him for the period 18 Dec 93 through 17 Dec 94.
e. The memorandum from his commander, dated 11 May 95, that
established a Special Security File (SSF) on him.
f. Letter of Reprimand (LOR), dated 2 Nov 95.
g. The referral Officer Performance Report (OPR) rendered on
him for the period 18 Dec 94 through 17 Dec 95.
h. Letter of Reprimand, dated 28 Mar 97.
i. The Unfavorable Information File (UIF) established on him
for the 28 Mar 97 LOR.
j. The referral Officer Performance Report (OPR) rendered on
him for the period 18 Dec 96 through 23 May 97.
Although the applicant does not specifically state, it appears that he
is also appealing the OPR rendered on him for the period 16 Nov 92
through 17 Dec 93.
_______________________________________________________________
APPLICANT CONTENDS THAT:
In an application totaling nineteen pages with 57 attachments and
eleven referenced reports (not attached), the applicant contends that
he suffered a series of egregious and deliberate retaliatory actions as
reprisals for whistleblowing.
In a chronological narrative, the applicant provides his account of the
events and actions taken against him and why he should be provided
relief under whistleblowing provisions.
The applicant’s complete submission is at Exhibit A.
_______________________________________________________________
STATEMENT OF FACTS:
According to information taken from the personnel data system (PDS),
the applicant graduated from the Air Force Academy and was commissioned
in May 1979. He completed Undergraduate Pilot Training on 30 October
1980 and completed training on the F-4 weapons system in 1981. He
completed training for conversion to the F-16C on 10 Jun 87. In 1992,
the applicant transitioned to the F-117A Stealth Fighter. According to
copies of documents provided by the applicant, In a memorandum dated
22 Aug 94, his commander referred him for a mental health evaluation.
The memorandum stated that the request was based on statements the
applicant made to the Office of Special Investigations (OSI) and other
individuals. The memorandum also stated that the referral was based on
perceived stalking and the applicant’s purchase of a shotgun, and the
commander’s belief that the applicant had made false allegations
against several individuals within the Wing. According to the
applicant, on 14 Sep 94, he received his copy of a PRF with a “Do Not
Promote” recommendation for the CY 94A Lieutenant Colonel Promotion
Board. On 11 May 95, the applicant was notified in a memorandum from
his squadron commander that his access to classified information and
unescorted entry into restricted areas was temporarily suspended due to
information contained in an OSI report, dated 18 Aug 94. On 2 Nov 95,
the applicant received an LOR from his Wing Commander for engaging in a
long course of unprofessional conduct involving multiple breaches of
his obligations as an Air Force Officer. Specifically, the applicant
was reprimanded for making unsubstantiated, serious criminal
accusations against a fellow officer, for repeatedly violating a lawful
order from his squadron commander not to discuss the death of a fellow
officer, and for violating an order to have no contact with a female
friend following his assault on her. On 28 Mar 97, the applicant
received a LOR from the numbered Air Force commander for the following
offenses:
a. Committing several physical assaults from 1 Oct 94 through
19 Apr 95 against his then-paramour, by striking her in the face with
his hand.
b. For attempting to shirk responsibility for his violent and
physically abusive behavior after his 19 Apr 95 physical assault by
wrongfully endeavoring to impede an investigation into the matter by
instructing his paramour not to talk to anyone, and to say that she
hurt her eye writhing around on the floor, or words to that effect.
c. From about 1 Jul 92 through 18 Apr 95 for wrongfully
engaging in adulterous, sexual intercourse on numerous occasions with
his paramour.
The letter also states that court-martial charges for the above
described misconduct were preferred against him on 2 Apr 96 by his
commander. On 6 Jan 97, the Numbered Air Force commander withdrew the
charges against him only after his paramour, the victim of his
misconduct and primary witness against him, terminated her cooperation
with the prosecution. His paramour refused to testify against him in
the court-martial action due to valid fears of reprisal. The LOR was
also placed in an UIF.
The applicant retired from the Air Force as a major on 1 June 1999. A
profile of his last 10 performance reports follows:
Closeout Date Overall Rating
31 May 89 Meets Standards
28 Feb 90 Meets Standards
06 Mar 91 Meets Standards
15 Nov 92 Meets Standards
*17 Dec 93 Meets Standards
*17 Dec 94 Does Not Meet Standards
*17 Dec 95 Does Not Meet Standards
17 Dec 96 Meets Standards
*23 May 97 Does Not Meet Standards
03 Mar 98 Meets Standards
* Four Contested Reports
_______________________________________________________________
AIR FORCE EVALUATION:
The Chief, Evaluation Programs Branch, AFPC/DPPPE, evaluated this
application and addressed the issues involving the four OPRs and PRF
the applicant is appealing. They recommend denial of the applicant’s
request.
DPPPE specifically addressed each of the contested reports as follows:
a. 17 Dec 93 OPR. The applicant contends that his commander
had the rater sign blank forms prior to the rater’s departure, edited
the rater’s original draft, then used the signed blank forms to prepare
and submit a “watered down” version of the OPR. As evidence, the
applicant provides a record copy of the “final” OPR and an unsigned,
unmarked “draft.” He does not indicate where or how he obtained the
alleged “draft” OPR (ratees are not authorized access to their OPRs
until they are completed and filed in their Unit Personnel Record
Group). Assuming the draft is authentic, the differences between it
and the record copy do not by themselves invalidate the final report.
The applicant has not provided anything from the rater confirming the
validity of the “draft,” the allegation that he signed blank forms, nor
that his “draft” was altered without his consent.
b. CY94 PRF. The applicant contends that the senior rater
would not explain the “Do Not Promote” recommendation he received
except to say that it was the commander’s determination. He also
contends that the PRF’s reference to “recent events” is inconsistent
with the guidance in AFI 36-2401. The senior rater is responsible for
evaluating an officer’s record of performance (ROP) and may consider
other information about performance and conduct as well as
recommendations from subordinate supervisors. In section IV of the
PRF, the senior rater explains “why the officer should or should not be
promoted” and “should” include information from the entire Record of
Performance… not just recent performance. While the senior rater may
have considered the commander’s recommendations in deciding to give the
applicant a “Do Not Promote” recommendation on his PRF, he assumed
authorship of, and responsibility for, the PRF when he signed it.
Further, while the PRF “should” include information from the entire
Record of Performance, there is no prohibition on the senior rater
focusing on “recent” performance or behavior when such information
forms the basis for the overall promotion recommendation and, in the
senior rater’s’ opinion, overshadows the other information contained in
the Record of Performance.
c. 17 Dec 94 OPR. Other than disagreeing with the statements
in the OPR that required it to be referred, the applicant contends the
report was referred strictly to render him ineligible for assignment.
He also claims that there is a typographical error in block III in that
it “appears… text overflowed out of the block.” Regardless of the
evaluator’s alleged motivation, the comments and ratings in the OPR
determine whether it must be referred. The applicant provides no
documentary evidence to invalidate the report. Further, while the
typographical error in block III may be valid, there is no support from
the rater to validate the correction proposed by the applicant in his
rebuttal. This administrative error is not sufficient justification to
void the OPR. The applicant’s counsel also raises several issues;
however, they are not considered sufficient to support the applicant’s
request.
d. 17 Dec 95 OPR. The applicant contends that the OPR is
flawed because it is based on an LOR he received that he contends is
also flawed. As support, the applicant refers to his 26 Feb 96
rebuttal to the referral OPR. There is no documentation presented to
support his arguments.
e. 23 May 97 OPR. As with the 17 Dec 95 OPR, the applicant
contends it is flawed as it is based on a flawed LOR. In support of
his claim, he includes a rebuttal to the OPR that he prepared but did
not submit “on counsel’s advice” (his attachment 38). DPPPE also
addresses several other objections the applicant expresses over the
OPR. They do not consider any of the arguments the applicant makes
sufficient to grant his appeal.
The complete evaluation is at Exhibit C.
The Chief, Promotion, Evaluation, and Recognition Division, AFPC/DPPP,
also evaluated this application and addressed the OPRs and PRF the
applicant is appealing. They state that all of the applicant’s
contentions were addressed by AFPC/DPPPE and they accept their review
and findings. They also provided a list of the promotion boards that
considered the applicant for promotion to lieutenant colonel. They
recommend denial based on the evidence presented and the review and
findings of DPPPE.
The complete evaluation is at Exhibit D.
The Staff Judge Advocate, Air Force Personnel Center, AFPC/JA, also
evaluated this application. They recommend denial of the applicant’s
request.
They note that the applicant never appealed any of the OPRs he now
attacks to the Evaluation Reports Appeal Board (ERAB), under the
provisions of AFI 36-2401 (Correcting Officer and Enlisted Evaluation
Reports). He said he did not appeal because to do so successfully
would require supporting statements from the very persons he believed
had retaliated against him for his disclosures of Capt B’s activities.
They believe applicant’s failure to seek relief from the ERAB is a
circumstance that the Board should consider in assessing the merits of
his claims. If he had appealed each OPR as soon as he received them,
the OPRs could have been scrutinized in a timely fashion in light of
his claims that they were based on retaliation. To wait for from
nearly three to more than six years and then ask the BCMR to find
retaliation to be the underlying motivation for the OPRs is patently
unreasonable in light of applicant’s bald-faced assertion that
retaliation is the reason for every action taken against him. In their
opinion, the reason the applicant failed to appeal the OPRs in question
in accordance with accepted procedures is that he could not meet the
burden of proof imposed on him by the instruction with regard to
alleged discrimination or unfair treatment.
The fundamental flaw in applicant’s claim for relief is he has not in
any fashion whatsoever established that the actions taken against him
were in retaliation for any proper actions he may have taken with
regard to Capt B’s status of being gay or his activities with regard to
classified materials. In their opinion, the applicant has not
established any linkage between his allegation of retaliation and the
actions taken against him, and further, he has not established that his
own actions were proper. Applicant submitted statements in rebuttal to
each of the referral OPRs he received, and he also submitted matters in
rebuttal to the administrative actions underlying the OPRs, such as
LORs he has received. His claim that dismissal of court-martial
charges against him somehow vindicates him and invalidates all of the
administrative actions taken against him is both illogical and in
error. In their opinion, each of the administrative actions taken was
proper under the circumstances and was procedurally correctly taken.
They note that when contesting military personnel actions, an applicant
bears a difficult burden and must overcome the strong, but rebuttable,
presumption that administrators of the military, like other public
officials, discharge their duties correctly, lawfully, and in good
faith. In this case, the applicant has failed to provide even a
scintilla of evidence that any of the actions taken against him was a
result of retaliation. Virtually all of his rebuttal comments to the
various adverse actions consist of his attempting to balance the
favorable aspects of his military career against its obvious low
points, and then have the decision maker, whether it be a commander or
the BCMR, ignore his specific instances of misconduct and focus solely
on his positive accomplishments. The reasons cited in the 13 Feb 98
letter notifying applicant he was not qualified for selective
continuation provide a clear summary of applicant’s dismal record
supporting the actions against him:
a. You engaged in a long course of unprofessional conduct by
making unsubstantiated criminal accusations against Lt Col B; by
violating a lawful order to you by your then-commander, Lt Col D, to
refrain from discussing the cause of death of another officer unless
given permission; and by violating a no contact order issued by Lt Col
D and Lt Col M directing you to have no contact with Dr G. Your
misconduct is evidence by your receipt of a Letter of Reprimand, dated
2 Nov 95. In addition, your access to classified information was
suspended on 11 May 95 and has not been reinstated.
b. From 1 Oct 94 through 19 Apr 95, you committed several
physical assaults against your then-paramour Dr. G by unlawfully
striking her in the face with your hand, resulting in black eyes and a
fractured rib; you then attempted to impede the investigation into the
assaults by instructing Dr. G not to talk to anyone and to say that she
hurt herself by writhing around on the floor. In addition, you engaged
in an adulterous sexual relationship with Dr. G from on or about 1 Jul
92 to 18 Apr 95. Your misconduct is evidence by your receipt of a
Letter of Reprimand, dated 28 Mar 97.
The fact that the applicant may not agree with the findings that form
the basis for all of the administrative actions taken against him is
not a sufficient reason compelling a finding that the actions were
taken in retaliation. Applicant wants the BCMR to remove every
administrative action taken against him and then reward him with a
direct promotion. In their opinion, the applicant has not provided any
evidence of error or injustice that would justify any changes in his
record.
The complete evaluation is at Exhibit E.
_______________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant’s counsel responded to the three evaluations in an eleven-
page brief with five exhibits. Counsel states that the applicant has
been systematically held up as the sole scapegoat for a series of
compromises of top secret information that began on 11 Apr 94, the
night that Capt B went to the emergency room (and later died), and
ended with the inexcusable and inexplicable compromise of top secret
documents by a four star general and his staff judge advocate. Counsel
disagrees with the assertions in two of the evaluations that the
applicant’s Petition was untimely. He states that the Petition was
indisputably filed within three years of Adair’s retirement and thus is
timely pursuant to the binding authority of Detweiler v. Pena, 38 F.3d
591 (D.C. Cir. 1994) and SAF/GC guidance to follow Detweiler.
The Air Force contends that the applicant has no evidence that the
adverse administrative actions taken against him were “retaliation.’
However, counsel states that AFPC/JA’s own memorandum contradicts this.
He cites an example taken from the memorandum that accuses the
applicant of making unsubstantiated criminal allegations against Lt Col
B. Counsel asks the rhetorical question, what unsubstantiated criminal
accusations. He states that the applicant was never given this
information, and therefore, never could defend himself against this
allegation because he was never told the basis of the allegation.
Counsel states that AFPC/JA has made a serious error in his argument
against the applicant. It is unjust in the extreme (and after 1996,
unlawful pursuant to 10 U.S.C. §1034) to take adverse action against an
individual such as the applicant for making allegations against another
officer that could not be substantiated. All the criminal allegations
against the applicant turned out to be “unsubstantiated” and as a
result the court-martial charges had to be dismissed. Counsel states
that the applicant’s accusers were not punished, of course, because a
privilege of disclosure applies unless it can be clearly shown that the
allegations were made in bad faith. There is zero evidence that the
applicant made his allegations in bad faith or with malicious intent.
In any case, the applicant does not have to “prove” retaliation in
order to be entitled to relief from the AFBCMR. He has to show that
adverse administrative action was unjust. According to counsel, the
administrative actions were unjust for the following reasons:
a. The applicant was singled out as the sole scapegoat for the
“Top Secret” security breaches.
b. The court-martial charges were based on incredible and even
ridiculous allegations and all the most damaging administrative action
taken against him were based on these allegations.
c. The list of events characterized, as dismal by AFPC/JA is
not supported by credible evidence.
Counsel provides expanded discussion of each of the three reasons
listed above to make his point that the applicant has been the victim
of an injustice.
Counsel’s complete submission is at Exhibit G.
______________________________________________________________
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. We took notice of the
applicant's complete submission in judging the merits of the case;
however, we agree with the opinions and recommendation of the Air Force
offices of primary responsibility and adopt their rationale as the
primary basis for our conclusion that the applicant has not been the
victim of an error or injustice. The allegations made by the applicant
are indeed serious. Unfortunately, due to his delay in filing his
application, none of the reports and documents he references are
available for the Board’s review. The lack of corroborating evidence
for his allegations leaves the Board with only his account of events to
consider. The Board was not persuaded by the applicant’s submission
that he has been the victim of retaliation. The Board notes that
actions taken against the applicant involved or were reviewed by
officials up through the highest level of his chain of command. The
Board does not find it reasonable that all of these officials would
have conspired or cooperated to retaliate against him for his actions.
Therefore, in the absence of evidence to the contrary, we find no
compelling basis to recommend granting the relief sought in this
application.
4. 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.
_______________________________________________________________
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 8 May 2001, under the provisions of AFI 36-2603:
Mr. Teddy L. Houston, Panel Chair
Mr. John L. Robuck, Member
Mr. Edward H. Parker, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 17 Dec 99, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPPPE, dated 25 Feb 00
Exhibit D. Memorandum, AFPC/DPPP, dated 20 Mar 00.
Exhibit E. Memorandum, AFPC/JA, dated 31 Mar 00.
Exhibit F. Letter, SAF/MIBR, dated 14 Apr 00.
Exhibit G. Letter, Applicant’s Counsel, dated 23 Feb 01,
W/atchs.
TEDDY L. HOUSTON
Panel Chair
_________________________________________________________________ AIR FORCE EVALUATION: The Chief, Evaluation Programs Branch, AFPC/DPPPE, reviewed this application and indicated that applicant has no support from the wing commander (and additional rater on the OPR) or either of the senior raters that prepared the contested PRFs (Note: The senior rater that prepared the CY96B PRF was also the reviewer of the contested OPR). A complete copy of their evaluation, with attachments, is...
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 00-02000 INDEX CODE: 107.00, 111.05 APPLICANT COUNSEL: Mr. Robert E. Bergman HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: He be retroactively promoted to the grade of lieutenant colonel effective the first date eligible with his year group; his Officer Performance Report (OPR) rendered for the period 18 May 93 through 17...
A complete copy of the Air Force evaluation is attached at Exhibit K. The Chief, Evaluation Programs Branch, AFPC/DPPPE, reviewed this application and states that although the applicant has provided support from the senior rater, she provide no support from the MLR president to warrant upgrading the PRF. After reviewing the evidence of record and noting the applicant’s contentions, the majority of the Board is not persuaded that the applicant’s records are either in error or unjust. The...
AF | BCMR | CY2005 | BC-2004-02802
He receive direct promotion to the grade of major with an effective date of rank as if he had been promoted by the CY02A (19 Feb 02) (P0402A) Major Central Selection Board (CSB); or, 2. It is DPPPE’s and DPPPO’s opinion that there is no convincing data that a material error or injustice existed in the applicant’s record; therefore, they recommend his request for direct promotion and SSB consideration be denied. Since we are unable to conclude the applicant’s record, as seen by CY02B...
AF | BCMR | CY1999 | BC-1996-02697
A complete copy of the JA evaluation is at Exhibit G. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Applicant provided a detailed response to the Air Force advisory opinions, as well as additional documentary evidence for the Board’s consideration (Exhibit I). A complete copy of the JA evaluation is at Exhibit N. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE...
A complete copy of the JA evaluation is at Exhibit G. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Applicant provided a detailed response to the Air Force advisory opinions, as well as additional documentary evidence for the Board’s consideration (Exhibit I). A complete copy of the JA evaluation is at Exhibit N. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE...
AF | BCMR | CY2003 | BC-2002-03649
The rater and additional rater of the contested OPR provide statements contending that the correct PME level on the report should have been for SSS rather than ISS. The OPR closing 23 Jun 97 recommends SSS in residence. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant altering the 23 Jun 96 OPR to reflect a PME recommendation of “SSS” rather than “ISS” and granting SSB consideration for the CY99A selection board.
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 99-00537 INDEX CODE: 111.01 COUNSEL: ANTHONY W. WALLUK HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: The Letter of Reprimand (LOR), dated 8 Aug 96, be voided from his records and that any reference to the reprimand be expunged from his records. Counsel indicated that the LOR went away after the applicant was promoted to...
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 00-02209 INDEX CODES: 111.02, 131.01 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: The Promotion Recommendation Form (PRF) prepared for consideration by the Calendar Year 1997E (CY97E) Lieutenant Colonel Board (PO597E), which convened on 8 Dec 97, be voided and replaced with a reaccomplished PRF. There was...
A copy of the Air Force evaluation is attached at Exhibit D. The Chief, Officer Promotion Management, HQ AFPC/DPPPOO states in regard to the applicant’s request to set aside the promotion nonselections by the CY93B and CY94A Central Major Selection Boards, that Title 10 clearly establishes that officers not selected for promotion are considered to have failed that promotion. The Secretary of the Air Force did not convene a selective continuation board associated with the CY94A Central Major...