RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2002-03181
INDEX NUMBER: 131.00; 111.00
XXXXXXX COUNSEL: Alison L. Ruttenberg
XXXXXXX HEARING DESIRED: No
___________________________________________________________________
APPLICANT REQUESTS THAT:
The Officer Performance Report (OPR) rendered on him for the period
14 Jun 99 through 13 Jun 00 be removed from his records.
The letter of reprimand (LOR), dated 2 Jun 00, and the associated
unfavorable information file (UIF) be removed from his records.
The Promotion Recommendation Form (PRF) prepared on him for the
Calendar Year 2001A (CY01A) Central Major Promotion Selection Board
be removed from his record.
The letter he submitted to the CY00B Central Major Promotion
Selection Board be removed from his Officer Selection Record.
It appears that he is requesting promotion consideration to major
by Special Selection Board (SSB) beginning with the CY00B Central
Major Selection Board.
___________________________________________________________________
APPLICANT CONTENDS THAT:
In a 15-page brief of counsel, applicant’s counsel provides the
details of the events that led to the actions the applicant is
contesting.
A complaint by the applicant’s ex-spouse to his commander he was
not making court ordered child support payments eventually led to
an incident between the applicant and the commander resulting in
the applicant receiving an LOR for alleged misconduct.
The applicant was justified in his actions toward the commander
based on the circumstances and his belief that he was in imminent
danger.
The applicant had provided evidence to the commander he was making
his child support payments and the commander indicated the matter
was closed. However, after the applicant filed a petition for
redress against the commander after receiving the LOR, the
commander reversed his earlier determination and rendered a
referral report on the applicant based on his being five months in
arrears on his child support payments.
Counsel’s complete submission, with attachments, is at Exhibit A.
___________________________________________________________________
STATEMENT OF FACTS:
The applicant is presently serving on active duty in the grade of
captain. A resume of his OPRs indicates overall ratings of “meets
standards” with the exception of the report rendered for the period
14 Jun 99 through 13 Jun 00, which is a referral report and marked
“does not meet standards” in the “Professional Qualities”
performance factor. The applicant was considered, but not selected
for promotion to the grade of major by the CY00B (18 Sep 00), CY01A
(18 Jun 01), CY02A (19 Feb 02), CY02B (3 Oct 02), CY03A (5 May 03),
and CY03B (8 Dec 03) Central Major Selection Boards.
Additional pertinent facts relevant to this case are contained in
the evaluations prepared by the appropriate offices of the Air
Force found at Exhibits C, D, E, and F.
___________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSFM addresses the issue of the LOR and UIF. They make no
recommendation.
A report of investigation, dated 16 Mar 01, revealed the
applicant’s commander and senior rater did not follow proper
procedure when he received his LOR. The applicant’s commander
failed to inform him of his decision not to file the LOR in his
officer selection record (OSR). The applicant’s commander was
within his authority when he issued the LOR and established the
UIF. Officer UIFs are active for two years as long as there are no
other problems. The applicant’s UIF expired on 7 Jun 02.
The complete evaluation is at Exhibit C.
AFPC/DPPPEB addresses the applicant’s request to remove the PRF
written on him for the CY01A Major Central Selection Board. They
recommend denial of the applicant’s request.
The applicant alleges his rater intentionally wrote a poor PRF for
the senior rater. The senior rater may request subordinate
supervisors to provide information on an officer’s recent duty
performance, but may not request any subordinate
commander/supervisor to draft or prepare his own PRF. The
applicant has not provided any supportive documentation to support
these allegations. To change Section IV, the applicant or senior
rater must demonstrate there was a material error in the PRF; a
material error in the record of performance, which substantially
impacted the content of the PRF; or a material error in the process
by which the PRF was crafted. The applicant has not provided a new
PRF with supportive documentation from the senior rater and
management level review president, as required.
The complete evaluation is at Exhibit D.
AFPC/DPPPO addresses the applicant’s request to remove the letter
written to the Board and promotion consideration by SSB. They
recommend denial of the applicant’s requests.
The applicant wrote a letter to the CY00B Board President providing
additional information concerning the circumstances surrounding the
numerous administrative actions taken against him by his commander,
to include the referral OPR. In submitting such a letter, the
applicant made a conscious decision to create an historical
document, which remains a part of the record that met the CY00B
board. The only time a letter is withdrawn from the historical
record is when the subject matter of the letter is subsequently
altered through appeal action.
The complete evaluation is at Exhibit E.
AFPC/DPPPE recommends denial of the applicant’s request to void the
OPR issued on him for the period 14 Jun 99 through 13 Jun 00.
The applicant contends that the child support arrearage cited in
his OPR is inaccurate. After a commander-directed investigation,
the investigating officer stated the applicant provided him with
evidence to prove that he was not in arrears. However, the
evidence presented showed that even if the applicant wrote and sent
checks on time (which he considered debatable), there was no
independent verification that the money was withdrawn from his bank
account. The bottom line was the applicant at that point was not
able to prove he actually paid money for the months in question.
The applicant also contends he was never insubordinate as cited in
the OPR. The investigating officer found in his investigation the
applicant was disrespectful and insubordinate, and his rater was
justified in documenting his behavior in his OPR.
The complete evaluation is at Exhibit F.
___________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
After temporarily withdrawing the applicant’s case for a period of
approximately 15 months [Examiner’s Note: Counsel withdrew
applicant’s case on 21 Apr 03 and submitted their rebuttal on
31 Jul 04], counsel responded to the Air Force evaluations.
Counsel advised of several typographical errors in their original
submission that should be corrected. Counsel indicates their
response addresses three of the four Air Force evaluations,
addresses new information, and clarifies the applicant’s original
submission.
In his response to the evaluation prepared by AFPC/DPPPO, counsel
addresses their recommendation not to remove the letter written by
the applicant to the CY00B Major Central Selection Board president.
Counsel states the applicant wrote the letter to explain the
circumstances of the administrative actions taken against him by
his commander since he did not know what the disposition of the
actions would be. Counsel points out that the Article 138
investigation report found that the applicant was not told if the
LOR he received was going to be placed in his OSR in violation of
AFI 36-2608. Counsel opines that if the AFBCMR grants the
applicant’s requested relief, it would be “confusing and irrational
to leave documents in his record that refer to the deleted
administrative actions.”
In response to AFPC/DPPPE’s assertion that the applicant has not
been able to prove that he actually paid money on the months in
question, counsel states the applicant did pay money for those
months and attaches a cancelled check as evidence. Counsel points
out the applicant’s commander examined the same evidence and
testified it was sufficient and he should not have put the
statement regarding child support in the applicant’s OPR. Counsel
points out that the problems with the applicant’s payments were
caused by the NCCCSCF due to their implementation of a new
statewide collection system. Counsel next addresses DPPPE’s
assertion the applicant’s allegations were already investigated and
rejected by the Air Force. Counsel states that the Article 138
Report contradicts its own finding of facts and contradictory
evidence, which overwhelmingly supports the applicant’s appeal.
Counsel provides a summary of the issues related to the applicant’s
payment of child support. He points out the Article 138 report
ignored evidence of inconsistency between the commander’s statement
to the applicant that the matter regarding his child support was
closed and his assertion the applicant failed to produce any
evidence he had paid the child support. When the commander was
shown the contradictory child support evidence during the
investigation, he testified the evidence was in fact sufficient and
that he should not have added the statement to the applicant’s OPR.
Counsel further addresses other unexplained inconsistencies in the
report. Counsel concludes that the conclusions of the Article 138
report on which DPPPE based their evaluation are not credible.
Counsel opines that the record contains clear and convincing
evidence and testimony which shows that the child support statement
added to the applicant’s OPR was reprisal by the commander for the
applicant’s request for redress, which highlighted and exposed his
improper conduct.
Counsel states the Article 138 Report and Air Force evaluations are
not credible in their conclusion the applicant was insubordinate to
his commander. Counsel references incidents involving the
applicant’s commander which showed he had a history of physically
aggressive behavior. Counsel also references the testimony of the
commander’s secretary who was the only witness present during the
alleged insubordination. The secretary stated the applicant was
not being insubordinate, but only trying to explain himself.
Counsel states that the erroneous conclusion of the Article 138
report is not supported by any credible finding of fact and was
based solely on a questionable memorandum written, unbelievably, by
the commander, the person who was supposed to be the subject of the
investigation.
In response to the evaluation prepared by AFPC/DPPPEB, counsel
disagrees with the conclusion the applicant’s PRF should not be
replaced because the applicant has not provided a new PRF from his
senior rater. Counsel states the applicant’s senior rater was not
receptive to the applicant. However, the applicant has submitted
significant evidence proving that the underlying allegations of
failure to pay child support and insubordination were unfounded and
unjustly documented. This shows that the actions of the senior
rater should be considered unjust.
Counsel’s complete submission, with attachments, is at Exhibit H.
___________________________________________________________________
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 error or injustice regarding the applicant’s
requests with the exception of voiding the PRF prepared for the
CY01A Major Central Promotion Selection Board in its entirety. The
applicant failed to provide a substitute PRF primarily because he
cannot obtain one from his senior rater. We note that the PRF
prepared for the CY02A Central Major Promotion Board is essentially
identical in Section IV to the CY01A PRF and applicant’s counsel
considers it to be a quality PRF. The primary differences noted
are in lines eight and nine. Key in line 9 is the addition of the
words “definitely promote, ISS.” Based on the circumstances of
this case, we believe the addition of these words may more
accurately reflect the applicant’s promotion potential during the
CY01A Major Central Promotion Selection Board. In light of this,
the applicant’s expressed concern over the PRF, and the obstacles
to getting a revised PRF from his senior rater, we recommend adding
these additional words to line 9 of the CY01A PRF. Based on the
evidence of record, we also believe there is sufficient doubt
created as to whether the applicant paid or took appropriate steps
to pay his child support payments. In fact, it appears to the
Board that he did and the problems he experienced resulted from the
state’s change to a different accounting and tracking system. The
evidence of record also causes us to question the actions of the
applicant’s commander and whether his actions and behavior created
the circumstances for the applicant’s alleged insubordination. For
these reasons, we are not persuaded the contested OPR and letter of
reprimand given the applicant were appropriate. Finally, we also
believe the letter written by the applicant to the CY00B promotion
board president should be removed from his records. We note that
the advisory prepared by AFPC/DPSFM states an investigation
determined the applicant’s commander and senior rater did not
follow proper procedures when the applicant was given the LOR.
Consequently, the applicant wrote the letter to the promotion board
president unaware the LOR had not been placed in his officer
selection record. We believe this constitutes an injustice to the
applicant. Therefore, we recommend the applicant’s records be
corrected as indicated below.
___________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that:
a. All documents and references to the Letter of Reprimand
(LOR) issued to him on 2 Jun 00, be declared void and removed from
his records.
b. The Company Grade Officer Performance Report, AF Form
707B rendered for the period 14 Jun 99 through 13 Jun 00, be
declared void and removed from his records.
c. The letter written by him to the President of the CY00B
Major Central Selection Board be declared void and removed from his
records.
d. The Promotion Recommendation Form (PRF), Air Force Form
709, prepared for the CY01A Central Major Promotion Selection Board
be amended in Section IV by replacing line 9, “Decisive breadth!
Proven leader, academician, staff officer and meteorologist--
promote” with “Decisive Breath! Proven leader, academician, staff
officer, and meteorologist--definitely promote, ISS!”
It is further recommended he be considered for promotion to the
grade of major by Special Selection Board for the CY00B Major
Central Selection Board and any subsequent boards for which the
above documents were a matter of record.
___________________________________________________________________
The following members of the Board considered Docket Number BC-2002-
03181 in Executive Session on 5 October 2004, under the provisions
of AFI 36-2603:
Mr. Richard A. Peterson, Panel Chair
Mr. James W. Russell, III, Member
Ms. Peggy E. Gordon, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 1 Oct 02, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPSFM, dated 21 Nov 02.
Exhibit D. Memorandum, AFPC/DPPPEB, dated 15 Jan 03.
Exhibit E. Memorandum, AFPC/DPPPO, dated 18 Feb 03.
Exhibit F. Memorandum, AFPC/DPPPE, dated 23 Feb 03.
Exhibit G. Letter, SAF/MRBR, dated 28 Feb 03.
Exhibit H. Letter, Counsel, dated 31 Jul 04, w/atchs.
RICHARD A. PETERSON
Panel Chair
AFBCMR BC-2002-03181
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 XXXXXXX, XXXXXXX, be corrected to show that:
a. All documents and references to the Letter of
Reprimand (LOR) issued to him on 2 Jun 00, be, and hereby are,
declared void and removed from his records.
b. The Company Grade Officer Performance Report, AF
Form 707B, rendered for the period 14 Jun 99 through 13 Jun 00, be,
and hereby is, declared void and removed from his records.
c. The letter written by him to the President of the
CY00B Major Central Selection Board be, and hereby is, declared
void and removed from his records.
d. The Promotion Recommendation Form (PRF), Air Force
Form 709, prepared for the CY01A Central Major Promotion Selection
Board be amended in Section IV by replacing line 9, “Decisive
breadth! Proven leader, academician, staff officer and
meterologist--promote” with “Decisive Breath! Proven leader,
academician, staff officer, and meteorologist--definitely promote,
ISS!”
It is further directed he be considered for promotion to the
grade of major by Special Selection Board for the CY00B Major
Central Selection Board and any subsequent boards for which the
above documents were a matter of record.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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