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