RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 99-02883
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. The Officer Performance Report (OPR) rendered for the period 8 April
1997 through 15 November 1997 be removed from his records.
2. He be considered for promotion by Special Selection Boards (SSBs) for
the Calendar Years 1998B and 1999A (CY98B & CY99A) Central Major Selection
Boards.
3. A letter be issued explaining the error.
4. He be awarded back pay and allowances, with interest, for the
difference for months from pin on time to settlement (i.e., normal pay he
would have received.
5. His records be corrected in a way that equitably addresses retired
pay and benefits that he will not receive due to his separation (i.e., cost
of living adjusted lifetime annuity equal to 12/20th of lieutenant colonel
retirement pay above and beyond involuntary separation pay in the grade of
major).
_________________________________________________________________
APPLICANT CONTENDS THAT:
The contested report is not based on any valid supporting documentation.
The applicant states that there was not a single incident where any
leadership or other action/inaction on his part was discussed or documented
in a manner which provided recourse or documented input from him. He never
had the opportunity to rebut the assumptions and present evidence. Even if
all of the rater’s undocumented assertions were true and properly
documented, a career-ending referral OPR is inequitable treatment. As
substantiated by the Inspector General (IG), the rater wrongfully falsified
the report. In addition, the review of the report by the group and wing
commanders was prejudiced due to a demonstrated inappropriate level of
support given to the rater. The character, conduct, integrity, and motives
of the rater are issues; however, AFI 36-2402 prevented him from addressing
these issues in his response to the report.
The applicant’s complete submission is attached at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant was considered and nonselected for promotion to the grade of
major by the Calendar Years 1998B and 1999A Central Major Selection Boards.
The applicant filed an IG complaint on 22 January 1998 alleging the
commander did the following:
a. Used his position to have the unit’s first sergeant coordinate
repairs on his privately owned vehicle.
b. Used his position to have the unit’s small computer manager
visit their home on at least one occasion to repair a home computer.
c. Threatened unit personnel by stating he had information on each
of them.
d. Directed he work an excessive amount of hours during a Phase I
exercise.
e. Used false statements against him in a Mental Health package.
f. Actively directed and passively supported the misallocation of
the squadron’s personnel efforts.
g. Placed squadron personnel at risk for safety in day-to-day
operations as well as during mass launches.
h. Held him accountable for things beyond his [applicant’s]
control.
i. Failed to take appropriate action of repeated misallocation of
maintenance efforts.
j. Fired him after objections to numerous complaints of
misallocation of resources.
k. Shared information from his [applicant’s] Mental Health
Evaluation with two other lieutenant colonels even though a statement of
confidentiality was on the report.
l. He failed to complete performance feedback sessions.
m. He falsified an OPR by stating that a feedback session had been
accomplished.
n. He delayed a referral report which limited his [the
applicant’s] opportunities within the Logistics Group.
o. Failed to provide the two workday waiting period from time of
notice until time of the Mental Health Evaluation appointment.
The IG investigation was completed on 18 March 1998, and found two of the
applicant’s 15 allegations (performance feedback was not completed, as
indicated on the report and the rater falsified the report when he
indicated otherwise) substantiated. The IG also found that applicant’s
removal from his position and the referral report did not constitute
reprisal.
Applicant’s performance profile, since 1990, follows:
PERIOD ENDING EVALUATION OF POTENTIAL
19 Dec 90 Meets Standards (MS)
25 Jul 91 MS
30 Jun 92 MS
30 Jun 93 MS
24 Sep 93 Training Report (TR)
30 Jun 94 MS
7 Apr 95 MS
7 Apr 96 MS
7 Apr 97 MS
* 15 Nov 97 (Referral) MS on all standards except
Leadership Skills
** 15 Nov 98 MS
* Contested report and top report reviewed by the CY98B board
* Top report reviewed by the CY99A board
_________________________________________________________________
AIR FORCE EVALUATION:
The Chief, Appeals and SSB Branch, AFPC/DPPPA, reviewed the application
and states that the contested report was accomplished in direct accordance
with applicable regulations and they do not concur with its removal. Air
Force policy states that an evaluation report is accurate as written when
it becomes a matter of record. Since evaluations receive exhaustive
reviews prior to becoming a matter of record, substantial evidence must be
presented to have a report changed or voided. The burden of proof is on the
applicant and he has failed to provide statements from the evaluators of
the contested report. The letters of support and other extraneous
documents provided by applicant are not germane to the contested report.
The IG determined the applicant was not removed from his position and the
contested report written in reprisal. Although the applicant did not
receive performance feedback, as substantiated by the IG, he does indicate
he had numerous discussions with the rater concerning the inappropriateness
of his [the applicant’s] leadership style and other areas of concern. They
acknowledge that performance feedback was not conducted during the period
of the contested report and have corrected the report to reflect, “Ratee
has established that feedback was not provided in accordance with AFI-
2402.” However, a rater’s failure to perform performance feedback does not
invalidate a report. While the rater did not complete the 20 November 1997
memorandum referring the contested report to the applicant, the applicant
acknowledged receipt of the report, submitted rebuttal comments and was
thus, fully aware of the circumstances of the referral. Even though the
memorandum was incomplete, it does not invalidate the referral. Since
there is no substantial evidence of reprisal or that the evaluators were
hindered from rendering a fair assessment, and they have not heard from any
members of the rating chain, it appears the contested report was prepared
in accordance with AFI 36-2402, and they recommend denial of applicant’s
request.
A complete copy of the Air Force evaluation is attached at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant reviewed the Air Force evaluation and states that it does not
address the biased review of the report and his prescribed steroid drug
use. His rating officials, to include the wing commander, were unaware of
his prescribed steroid drug treatment and its side effects, when rendering
the report. During the period of the contested report, he was prescribed
steroid treatment for gout. The treatment included cycling on and off the
steroid drug Prednisone. The Air Force drug information computer lists the
side effects of Prednisone to include: difficulty sleeping, mood changes,
nervousness, increased appetite, or indigestion. The Essential Guide to
Prescription Drugs describes possible effects of Prednisone as: altered
mood and personality, headaches, dizziness, insomnia, acid indigestion,
muscle cramping, increased blood pressure, and mental and emotional
disturbances. The prescription was discussed during a brief interview and
available in his medical record, but it was not mentioned in the Command
Directed Mental Health report. The rating officials made judgment
decisions about the report without relevant facts.
The applicant’s complete response is attached at Exhibit E.
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
The BCMR Medical Consultant reviewed the application and is unable to draw
a correlation between the applicant’s alleged problems with his leadership
skills and his sporadic and brief periods of using steroids for acute
episodes of gout. It is extremely unlikely that such “bursts” of this drug
ever associated with behavioral changes such as would warrant the comments
found on the contested OPR. In light of this, favorable consideration of
applicant’s request cannot be recommended.
A complete copy of the Air Force evaluation is attached at Exhibit I.
_________________________________________________________________
APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
The applicant reviewed the additional evaluation and states that it fails
to indicate whether the moderate daily steroid doses over very short
periods of time contributed to his behavioral change. Furthermore, the
evaluation does not mention the increased frequency of “bursts” and the
diminishing positive effects which lead to longer “bursts” of a moderate
daily dose. During the period in question, he was taking increased steroid
doses more often. It is reasonable that an individual taking increasingly
longer bursts of a mild steroid with increasing frequency, could become
more apt to lose his temper, be defensive, or word concerns in a harsh or
blunt way. Had the rating officials been aware of his steroid use and its
side effects, they would have been less harsh on him.
Applicant’s complete response is attached at Exhibit K.
_________________________________________________________________
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 thoroughly reviewing the
evidence of record and noting the applicant’s contentions, we are not
persuaded that the contested report is an inaccurate assessment of his
performance during the contested period. While the IG investigation did
substantiate that the rater of the contested report did not provide
performance feedback and falsified the report to indicate otherwise, they
did not substantiate that the applicant was the victim of reprisal.
Furthermore, we are not convinced the rater falsified the report with
malice. Although the applicant received no formal performance feedback, it
does appear that he was counseled during the period of the contested
report. Regardless, failure to provide performance feedback is not a
sufficient basis to invalidate a report. The report has been corrected to
reflect that feedback was not provided. Other than the comments regarding
his leadership, the report favorably reflects upon the applicant’s
performance. We are also not persuaded that applicant’s leadership
problems were the result of his steroid drug treatment for gout. While the
applicant contends his rating officials were unaware of his steroid
treatment, he could have raised this issue in his rebuttal comments to the
contested report, but apparently chose not to do so. Based on a
preponderance of the evidence, we are not persuaded that the contested
report is in error or unjust. Therefore, in the absence of evidence to the
contrary, we find no basis upon which to recommend favorable consideration
of the applicant’s request.
_________________________________________________________________
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 13 March 2001, under the provisions of AFI 36-2603:
Mr. Thomas S. Markiewicz, Vice Chair
Mr. Steven A. Shaw, Member
Mr. William H. Anderson, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 2 Nov 99, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPPA, dated 10 Dec 99, w/atch.
Exhibit D. Letter, SAF/MIBR, dated 5 Jul 00.
Exhibit E. Letter, Applicant, dated 16 Jul 00.
Exhibit F. Letter, AFBCMR, dated 21 Sep 00.
Exhibit G. Letter, Applicant, dated 25 Sep 00.
Exhibit H. Letter, AFBCMR, dated 19 Jan 01.
Exhibit I. Letter, BCMR Medical Consultant, dated 8 Feb 01.
Exhibit J. Letter, AFBCMR, dated 8 Feb 01.
Exhibit K. Letter, Applicant, dated 28 Feb 01.
THOMAS S. MARKIEWICZ
Vice Chair
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