RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                 DOCKET NUMBER:  2003-02043

                                  COUNSEL:  Mr. Eugene R. Fidell

      XXXXXXX                     HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  Field Grade Officer Performance Report (OPR), rendered for the period  3
July 1998 to 2 July 1999 be amended in Section VI to include a promotion  or
stratification statement and in Section VII by deleting  the  comments  “ISS
in residence is a must.”

2.  The Promotion Recommendation Form (PRF) prepared for the  Calendar  Year
1999B selection board be revised.

3.  The Officer Selection Brief (OSB) prepared for the Calendar  Year  1999B
Selection Board be corrected to delete the  duty  title  "Sembach  Community
Services Coordinator" effective 2 Nov 1998.

4.  Direct promotion to the grade of Lt Colonel or in the alternate:

            a.  All non-selections be removed.

            b.  She be considered for promotion to the grade  of  lieutenant
colonel by Special Selection Boards  for  all  appropriate  Boards  and  the
Boards be provided a memorandum indicating that because of  previous  career
injury, it should deem her to have received  a  Definitely  Promote  on  the
PRF.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She states that in 1998, she became the Family Advocacy (FA) Element  Leader
at Ramstein AB.  Because of “perfect storm” conditions, she wound up  facing
what amounted to a mutiny among some of her new  staff.   The  effects  were
and continued to be, devastating for her career.

At Ramstein AB, she succeeded an officer who had what can only be  described
as a relaxed management style.  Not surprisingly, he was very  popular  with
the staff.  Her own management style was more in the conventional Air  Force
mode.  The staff viewed her with suspicion even before  she  arrived,  going
so far as to make telephone calls to her prior command in  order  to  gather
intelligence on her.

The FA staff was not particularly hard working, and her energy proved to  be
an unpleasant innovation.  Disrespect became rampant (e.g., one  subordinate
wore a shirt that advised folks that his “boss is  clueless”).   There  were
serious problems of inappropriate conduct.  One  member  of  the  staff  had
established a  blatantly  inappropriate  relationship  with  a  patient  (or
“client,” in social work parlance).   It  fell  to  the  applicant  to  take
action to bring that relationship to a halt and report the matter  to  state
licensing authorities in Texas.  There was also evidence  that  one  of  the
officers on staff, her boss, was engaged in  an  inappropriate  relationship
with a subordinate.

Coupled with and aggravating the pervasive indiscipline in the  FA  Program,
her  superior  maintained  an  open-door  policy,   which   encouraged   her
subordinates to violate the chain of command.  This  policy  further  eroded
her position.  Eventually, she was removed from her  position,  long  before
she had completed her tour and reassigned as  acting  Deputy  Support  Group
Commander, Sembach AB.  When the permanent Deputy returned, she  became  the
Coordinator  of  Individual  and  Family   Integrated   Services   and   the
Educational Clearance Tiger Team for the Kaiserslautern Military Community.

On 5 May 1999, she submitted a complaint to  the  USAFE  Inspector  General,
maintaining, among other things that her removal was  in  reprisal  for  her
having undertaken a unit self-assessment, which functioned  as  a  protected
disclosure.  She also complained that she was  the  victim  of  gender-based
discrimination because a male officer, junior to  her  on  the  active  duty
list, was promoted over her to the  position  of  deputy  commander  of  the
Mental Health Flight.  She complained,  as  well,  that  she  had  not  been
afforded performance feedback  within  the  prescribed  period.   After  she
complained,  that  feedback  was  belatedly  furnished  to   her   and   was
accompanied by  a  letter  of  counseling.   Also,  a  second,  nonscheduled
feedback session was provided to her the day before she was removed and  was
conducted with a third-party present, contrary to AFI 36-2406.  Feedback  is
designed to facilitate improvement and mentor the member, not to document  a
rationale for removing the member from a position.  It  is  also  noteworthy
that when the second feedback was written, only two months after  the  first
one, a vast difference was noted in her performance.  Her supervisor’s  only
explanation for this discrepancy was that  he  was  unaware  he  could  have
marked the applicant down so far in the initial feedback.

She has been able to obtain only a  redacted  copy  of  the  3rd  Air  Force
Inspector General Report (IG) and she assumes the  Board  will  be  able  to
obtain the complete document.  From the redacted  version,  however,  it  is
clear that parts of her complaint were found to be substantiated, and  parts
were found to be unsubstantiated. The IG concluded that the  self-assessment
was a protected disclosure that adverse action was taken  thereafter  by  an
individual who was aware of the disclosure, but that a preponderance of  the
evidence indicates that the same action-removal-would have occurred  in  any
event.

The IG investigation reported that five  reasons  had  been  cited  for  her
dismissal.

The first was an allegation of dishonesty.  Because of heavy  redactions  in
the pertinent paragraph, she is unable to  fully  respond  to  this  serious
claim.  However, it should be noted that the investigator  never  personally
concluded that the allegation was accurate, only  that  it  had  been  made.
One source on this matter appears not even to have  been  interviewed.   The
only specifics they have been able to find in the materials released to  her
are in paragraph 6 under the Analysis of Allegation 2.

Two instances are cited.  One  is  an  assertion  that  she  falsely  denied
having been concerned by the command’s failure to use date of  rank  as  the
criterion for selecting a new Deputy Commander of the Mental Health  Flight.
 The other is an assertion that she had  falsely  denied  having  threatened
subordinates with dismissal.  Neither of these allegations  is  a  plausible
basis for removing her from her position.

She was approached by another officer in the mental health clinic, Maj  P__,
who complained to her that gender-based decisions were  being  made  in  the
clinic, to include designation of junior male officers to stand in  for  the
male deputy when that officer was on  TDY.   The  applicant  responded  that
this was interesting and, since she, being new, was unaware of  the  staff’s
dates of rank, asked who was senior to whom.  Maj P__ told her that she  was
the senior major within the flight, clearly suggesting that she should  have
been the one designated to act as deputy.  The applicant  did  nothing  with
the information concerning dates of  rank,  and  was  astounded,  some  time
later, to receive an email from Col T__, the  squadron  commander,  advising
her to “stop whining” about the matter--something she had never  done.   She
went to see Lt Col B__, the mental health  flight  commander,  to  find  out
what Col T__ was referring to, and gathered that Maj P__ had reported  their
private conversation--a conversation initiated by Maj  P__--in  a  distorted
fashion that conveyed the impression she was  disgruntled  on  the  subject.
In fact, although she understood  she  would  not  serve  as  acting  deputy
immediately upon her arrival  at  the  unit,  she  was  surprised  that  the
command continued to disregard normal  seniority  practices  after  she  had
been there for some time.  She had not made an  issue  of  it,  although  as
time passed she certainly had  a  basis  to  complain.   To  accuse  her  of
falsely  denying  anything  on  these  facts  is  outrageous.   It  is  also
noteworthy that the 3AF IG report indicates Maj P__ and Lt Col B__  admitted
they “shared a bed” when traveling.

The other alleged lie had to do with falsely denying she  had  threatened  a
subordinate with dismissal.  Here again,  the  facts  show  nothing  of  the
kind.  At the time she was at Family Advocacy, there were roughly  13  civil
service professional or paraprofessional staff positions.  They  were  going
to be outsourced to a government contractor, Chesapeake.  One of  the  civil
service employees was Mr. O__, whose misconduct represents a major theme  in
this case.  She  discussed  with  the  supervisor  (Capt  Mc__)  on  several
occasions that  all  of  these  positions  would  likely  be  outsourced  to
Chesapeake.  There was no threat to dismiss Mr. O__ or anyone  else,  but  a
simple statement of fact regarding the unit’s personnel  strategy.   In  the
end, his position, along with all of  the  others,  was  indeed  outsourced,
although he, like the others, remained  in  his  position  as  a  contractor
employee.  The applicant never  threatened  him  or  anyone  else,  and  her
denial that she had threatened him or anyone else with dismissal was and  is
true.  Obviously, Mr. O__, whose “rice bowl” was at risk of being broken  as
part of the command’s shift to contractor personnel, had every incentive  to
make trouble, which he did.  The fact remains, however, that a dismissal  of
Mr. O__ or any other  staff  member  for  cause  was  well  within  the  her
responsibility as element leader and indeed an option, albeit one  that  she
never exercised.

The second reason relied on for the proposition she would have been  removed
in any event is what has been referred to as “the force protection issue  at
Potzberg Castle.”  This is, if anything, even more  of  a  nonstarter  as  a
justification for her removal than the alleged false denials.

The facts, in a nutshell, were that the applicant had arranged  to  have  an
offsite  training  session  for  staff  at  this  facility.   There  was  no
terrorism alert in effect at the time.  There  was  simply  a  concern  that
United States personnel remain alert, use  common  sense,  and  avoid  large
crowds and apparent demonstrations.  More to the point, apparently, four  of
the FA staff (led by Mr. O__) claimed to be annoyed at her because the  plan
contemplated that each participant would have had to pay the  grand  sum  of
40 deutschmarks (DM) to cover lunch and snacks--equal to about  $20  dollars
at the time.  On the security aspect, this was transparently  not  a  firing
offense or indeed, any kind of offense at all; a  word  to  the  wise  would
have been more than ample.  The real casus belli  seems  to  have  been  Mr.
O__’s clique’s annoyance at theoretically incurring a  very  minor  expense.
Again, this is nothing like a firing offense for  a  major  element  leader.
Indeed, the telling thing about the  Potzberg  Castle  episode  is  that  it
shows just how difficult it was to make any headway with the FA staff;  this
was supposed to be a “team building session,” and they--or rather,  a  small
group of them--turned it into yet another way to  torpedo  their  commander.
Of note, the  departure  party  for  the  easygoing  and  therefore  popular
officer she relieved was held at Potzberg Castle and involved a  per  capita
charge in excess of 40DM.

The  third  proffered  reason  was  “[t]ension  and  disruption  in  the  FA
element.”  If all one knew was that  there  was  “tension  and  disruption,”
further inquiry would be warranted to identify the cause of  the  condition.
As  we  will  explain  in  a  moment,  further  inquiry--done  by  the  IG’s
investigator--rules this out as a basis for dismissal.

The fourth proffered reason concerned certain  recommendations.   The  Board
may find it difficult to address this on the merits because  the  IG  report
has been so heavily redacted that it is impossible to  tell  what  is  being
referred to.  In fact, this part  of  the  rationale  has  to  do  with  her
concern that Lt Col B__ had provided professional assistance to the  son  of
his own superior (the Medical Group Commander) in violation of  professional
norms.   The  investigating  officer  suggests   this   practice   of   dual
relationship  is  “acceptable  in   small   communities   and   professional
settings.”   However,  that  description  can  hardly  be  applied  to   the
Kaiserslautern Military Community, which  had  a  population  of  more  than
45,000 military beneficiaries and approximately a dozen  available  military
and civilian psychiatrists.  In a community of that size, for an officer  to
treat his own commander’s child does not  fall  within  any  small-community
exception.  The investigating officer also notes that there  was  a  special
role between Lt Col B__ and Col W__, but could not  ascertain  whether  that
special role serve to protect Lt Col B__.  All this proves to be beside  the
point  because,  whether  or  not  the  applicant’s  concerns  and   related
recommendations were well-founded, the investigating officer concluded  that
although this fourth reason for reassignment was among those  found  not  to
have been based on reprisal, “the applicant’s arriving at that point  [i.e.,
removal] is a direct product of [her] lack of ongoing effective  supervision
and feedback by management and therefore is unfair  and  unjust  considering
everything as a whole.”

The fifth reason offered as a justification  for  her  removal--“failure  to
maintain emotional detachment from patients” in her role as a mental  health
provider--was not seen as a valid reason for reassignment, according to  the
investigator.  The  investigator  cryptically  referred  to  the  matter  as
“problematic,” but in this respect he was mistaken, as his report  elsewhere
explains that  she  was  nothing  more  than  appropriately  persistent  and
dedicated to patient needs, and that her judgment in that  regard  had  been
vindicated.  In any event, even he did not think this was a valid basis  for
removal.

The investigator’s conclusion that there was  no  evidence  of  gender-based
discrimination is suspect.  Specifically, the applicant pointed to the  fact
that she was passed over for acting Deputy Flight Chief in favor of  a  male
officer who was junior to her.  Nothing in  the  investigation  demonstrates
that disregard of dates of rank in  making  such  assignments  was  part  of
pattern or practice.  Accordingly, it was improper to reject  her  complaint
that gender played  an  impermissible  role  in  this  piece  of  the  case.
Equally unpersuasive is the investigator’s conclusion that gender played  no
role in the her  dismissal  because  a  male  officer  who  had  experienced
management problems was not reassigned, on the  notion  that  the  officer’s
management issue was uninvolvement rather than overinvolement  (said  to  be
the problem with the applicant).  In her September 25,  2000  supplement  to
her IG complaint, she identified and furnished details  with  respect  to  a
variety  of  other  instances  of  discrimination  against  women  with  the
command.  The instances she cited stand unrebutted.  At  least  one  of  the
officers has already received relief from the AFBCMR.

Finally,  in  reaching  the  conclusion  that  there  was  no   gender-based
discrimination,  the  investigator  appears  to  have  overlooked  his   own
observation, in the last paragraph of his Analysis  of  Allegation  8,  that
lack of recognition was a more pronounced response  among  women  at  Family
Advocacy than among men.

Taking these three points together, the IG’s conclusion that gender did  not
play a material role in the treatment of which she was subjected  cannot  be
accepted.

This leaves for discussion the matter of “[t]ension and  disruption  in  the
element.”  It turns out that this is at the heart of  the  case,  and  here,
far from providing a justification for her removal, the facts and  the  IG’s
own analysis, demonstrate the  entire  setting  was  deeply  unfair--whether
viewed as a gender-based matter or as simple, garden-variety injustice.

It hardly needs elaboration to see why the  circumstances  under  which  she
had to function at Ramstein  set  her  up  for  failure.   Given  this  grim
summary, it is no wonder  she  failed  to  be  selected  when  she  met  the
promotion board.


The circumstances described impacted on  her  promotion  recommendation  for
the CY99B board.  The all-important concluding  words-again,  only  four  in
number--were “leadership skills require  maturing.”   These  were  obviously
damning and the results were entirely  predictable.   It  is  impossible  to
divorce  those  words--which  were  plainly  calculated  to  counteract  the
ostensible recommendation that she be promoted--from  the  circumstances  so
vividly  and  cogently  described   by   the   IG’s   investigator.    Those
circumstances were unfair, and the PRF was as well.

These are not the only errors and injustices, although they  are  more  than
ample to mandate relief.  Her OPR  for  the  period  ending  July  2,  1999,
included this final comment in block VII: “ISS  in  residence  is  a  must.”
Such a comment is inappropriate for an officer in her  pay  grade,  and  was
prejudicial each time she has met a promotion board.  In block  VI,  Lt  Col
B__ purposely leaves out a promotion  or  stratification  statement  in  his
final line.  The OPR should be  corrected,  and  each  of  her  failures  of
selection removed.  Her record was also incorrect in that her  duty  history
did not reference her family advocacy position  when  she  met  the  Lt  Col
boards.

This is an appropriate case for direct  promotion  relief.   The  Board  has
granted such relief in the past where an officer suffers career injury  that
inherently does not lend itself  to  correction  through  normal  means,  or
where the normal means have simply  proven  unequal  to  the  task.   Direct
promotion relief is warranted  here  because  her  removal  as  the  element
leader of the Ramstein Family Advocacy Program has had an  enduring  adverse
impact on her right to fair consideration for promotion ever since.

Since the time she was forced out of her  position,  she  has  received  one
outstanding OPR after another as well as other forms of recognition for  her
excellent performance of duty, yet she has had no success  getting  selected
for lieutenant colonel.  For example, the 347th Medical Operations  Squadron
selected her as a Squadron Officer of the Quarter in April 2002,  and  on  4
February 2003, she was notified that she had been selected as Social  Worker
of the Year (2002) for her command.  Nonetheless, she was  passed  over  yet
again by the Calendar Year 2002 Board.

In support of her request, applicant provided her counsel’s legal  brief,  a
copy of the formal complaint, with  numerous  attachments,  and  a  redacted
copy of the IG Report.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on active duty in the grade of major.

Applicant was considered and nonselected  for  promotion  to  the  grade  of
lieutenant colonel by the Calendar Years 1999B,  2000A,  2001B,  and  2002B,
Lieutenant Colonel Central Selection Boards.

During the period in question,  the  applicant  was  the  element  chief  of
Family Advocacy, 86th Medical Group at Ramstein  AB  Germany  from  28  July
until her removal on 7 April  1999.   She  was  removed  and  reassigned  as
special assistant to the 86th Support Group commander.

On 5 May 1999 and 25 September 2000, the applicant filed  a  complaint  with
the Inspector General’s (IG) office at Ramstein AB, Germany.  The  applicant
alleged    mismanagement,    reprisal,    perceived    favoritism,    gender
discrimination; inappropriate relationships;  and  subversive  behaviors  by
people within her element, that were  permitted  by  management,  ultimately
leading to the unraveling  of  good  order  and  discipline  in  the  Family
Advocacy element.

On 20 October 2000, the DoD IG  concurred  with  the  HQ  3AF/IG  report  of
investigation that all allegations were not  substantiated  except  for  the
allegation of delayed feedback and improper feedback (see HQ 3AF/IGQ  Report
at Exhibit C).

The  applicant  filed  an  appeal  under  the  provisions  of  AFI  36-2401,
Correcting  Officer  and  Enlisted  Evaluation  Report,   for   the   P0599B
Performance Recommendation Form; however, it  was  returned  without  action
with the recommendation that  she  reapply  after  the  results  of  the  IG
investigation.

Applicant has received eight OPR's since she was promoted to  the  grade  of
major, all of which reflects "Meets Standards."

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPE recommends denial and states the applicant did  not  provide  any
credible evidence specifically addressing the lack of stratification on  the
2 July 1999 OPR.  Actually, if the  rater  did  not  believe  the  applicant
deserved a stratification he was not required to provide it.   Further,  the
applicant mentions there was no promotion statement on  the  report.   While
this  is  an  accurate  statement,  AFI  36-2402,  para   1.4.1,   prohibits
recommendations  on  officer  performance  reports.    As   such,   it   was
appropriate for the evaluators not to include any promotion  recommendations
on the contested report.  Also, the applicant was still eligible for ISS  in
residence  at  the  time  the   report   closed   out.    Accordingly,   the
recommendation for ISS, while optional,  was  appropriate.   Simply  because
the applicant is not happy with the way the report turned out does not  make
it inaccurate.  It could be, in fact, accurate that  the  rater  “purposely”
left out a  stratification  statement;  however,  such  statements  are  not
mandatory in performance reports.  It is the rating chain’s  decision  based
on their assessment on what statements to include-not the member’s.

While the applicant has  requested  a  new  PRF  that  “properly  notes  her
successes,” a revised PRF has not been provided and it isn’t  clear  exactly
who the applicant believes would be in a position to render  a  new  report.
This point is actually somewhat moot, since  the  applicant’s  own  evidence
from HQ USAFE/IGQ clearly indicates a  formal  investigation  was  conducted
and “there was insufficient evidence that reprisal occurred.”

The applicant did not prove any of her contentions.   Evidence  is  required
to prove contentions that a report is erroneous and in this case,  none  was
provided.  Again, on the contested July 1999  OPR,  the  ISS  recommendation
was  appropriate,  the  stratification  statement  was  optional,  and   the
promotion recommendation was prohibited.  As for  the  P0500B  PRF,  the  IG
investigation found no reprisal took place.

AFPC/DPPPE complete evaluation is at Exhibit D.

AFPC/DPPPO recommends denial and states that  the  applicant’s  record  does
not warrant  direct  promotion,  nor  does  it  warrant  SSB  consideration.
Through counsel, the applicant contends her duty history did  not  reference
her Family Advocacy position when she met  the  lieutenant  colonel  boards.
However,  we  reviewed  her  P0599B,  P0500A,  P0501B,  and  P0501B  officer
selection briefs (OSBs) and found that they all reflected her duty title  as
“Family Advocacy Element  Leader.”   Therefore,  SSB  consideration  is  not
warranted on this issue.

Regarding the request for direct promotion, both Congress and DoD have  made
clear their intent that when  errors  are  perceived  to  ultimately  affect
promotion, they should be addressed and resolved through the  use  of  SSBs.
See 10 U.S.C. 628(b), DoD Directive 1320.11 para D.1. and Air Force  policy,
which mirrors that position in AFI  36-2501,  Chapter  6.   When  many  good
officers are competing for a limited number of promotions, it  is  extremely
competitive.   Without  access  to  all  the  competing   records   and   an
appreciation of their content,  we  continue  to  believe  the  practice  of
sending cases to SSBs is the fairest and best practice.  In  the  past,  and
hopefully in the future, the AFBCMR will consider direct promotion  only  in
the most  extraordinary  circumstances  where  SSB  consideration  has  been
deemed to be totally unworkable.

AFPC/DPPPO complete evaluation, with attachments, is at Exhibit E.
_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the Air Force evaluations and stated that  the  essence  of
the DPPPE advisory opinion is that since the Inspector General did not  find
the applicant’s complaint  of  reprisal  to  have  been  substantiated,  her
record  correction  application  should  be   denied.    This   reflects   a
fundamental misunderstanding of the role of the AFBCMR.  Under 10 USC  1552,
every member has a right for review of his or her application  by  a  “board
of civilians” acting for the Secretary.   That  board,  of  course,  is  the
AFBCMR.  It must render its own decisions and not simply  rubberstamp  those
of uniformed personnel, including the 3AF IG.

The applicant’s application is quite detailed, is submitted under oath,  and
is supported  by  substantial  evidence.   The  two  advisory  opinions,  in
contrast, are totally superficial.  Neither one makes the  slightest  effort
to assess the  evidence  adduced  by  the  applicant,  nor  to  address  the
specific  arguments  advanced   in   her   supporting   memorandum.    Vague
generalities are no more worthy of acceptance when  they  come  in  advisory
opinions than when  they  are  submitted  by  an  applicant.   The  advisory
opinions are of no assistance to the AFBCMR because  they  fail  to  address
the specifics of the case.  In a perfect universe, it would be  tempting  to
urge the AFBCMR to require the submission of advisory opinions that  do  so.
However, in light of the passage of time and the fact that there can  be  no
assurance that such advisory opinions would  be  any  more  helpful  to  the
board than the ones previously  submitted,  we  believe  the  AFBCMR  should
proceed  on  its  own  to  examine  the  evidence  and  draw  the   required
conclusions.  The Air Force is not entitled to a second bite  at  the  apple
while the applicant continues to suffer the career harm  identified  in  her
submission.

We also note that, in  addition  to  failing  to  come  to  grips  with  the
particulars  of  the  case  presented  in  the  application  and  supporting
materials, the offices that submitted the advisory opinions have  failed  to
submit any witness statements that might overcome the applicant’s evidence.

As one witness whose name has been redacted from the IG’s report  concluded,
“[r]garding leadership performance at the 8th Medical  Group  vis-à-vis  the
applicant, REDACTED summed it up with four words: “They get an F.”  See  our
brief at 15.  The advisory opinion from DPPPE,  however,  fails  to  address
those prejudicial circumstances, even though they are set  forth  in  detail
in the application.  Instead, it seeks to treat  the  case  as  if  it  were
simply a series of discrete technical  matters.   This  kind  of  trees  vs.
forest approach is  a  far  cry  from  how  the  AFBMCR  has  performed  its
important function over many years.  Specific promotion recommendations  may
no longer be permitted in  OPRs,  but  that  does  not  mean  stratification
comments-or the lack thereof-are immaterial.  As  we  explained  in  detail,
the applicant was subjected to extremely unfair treatment by her command  at
Ramstein AB.  That kind of treatment inevitably colors what  appears  in  an
OPR (or, as here does not appear).  Anyone  familiar  with  the  performance
evaluation system knows perfectly well that the choice of terms  in  an  OPR
can have a decisive impact on promotion prospects.

DPPPE  notes  that  since  the  applicant  remained  eligible  for  ISS   in
residence, there was no problem in noting this  on  her  OPR.   Once  again,
this observation overlooks the practical realities of the effect of  such  a
comment in an OPR for an officer in her pay grade.  Sometimes an OPR can  be
unfair even if it is literally accurate.

As for having a new PRF generated, the DPPPE advisory opinion comments  that
it is not clear who the applicant believes should prepare the revised  form,
and suggests that in any event this issue is moot because the IG found  that
there had been  no  reprisal.   Neither  of  these  observations  is  valid.
Finding an appropriate general  officer  to  prepare  the  PRF  will  be  no
problem, quite obviously.  Nor is the matter “moot” simply  because  the  IG
found no reprisal.  In fact, as our brief  demonstrates,  the  investigation
revealed clear unfairness directed to the applicant, and the  reasons  given
for accepting the command’s contention that she would have been  transferred
in any event simply do not withstand scrutiny.   We  will  not  repeat  here
what is in the brief.  The AFBCMR should simply refer to pp. 4-15.

Nothing  in  the  DPPPE  advisory  opinion  addresses  in  any  manner   the
applicant’s evidence that gender played an improper role in  her  treatment.
Please refer to our brief at pp. 12-13 and  supporting  documentation.   Nor
does the advisory opinion in any way address the unfairness  and  inaccuracy
of the PRF, as noted in our brief at p. 15 and n. 7.   A  PRF  for  a  major
(who is about to meet a Lt Col board) that entirely fails  to  describe  the
officer’s performance as  a  major  is  a  sham.   The  Air  Force  did  not
establish  the  PRF  machinery  with  a  view  to  its   being   so   easily
circumvented.

The other advisory opinion is from DPPPO.  Like  the  first  one,  this  one
also fails to address the specifics of the  applicant’s  underlying  factual
assertions, but simply takes the IG’s conclusions as a given.  As  explained
above, that is no help at all to the AFBCMR.   The  DPPPO  advisory  opinion
also errs in its characterization of her complaint.   It  is  not  simply  a
question of whether she was a victim of reprisal, but also  whether-reprisal
aside-she was treated unfairly, as the record plainly demonstrates.

DPPPO insists that SSB consideration is unwarranted based solely on  DPPPE’s
advisory opinion, including the suggestion that the applicant’s PRF is  moot
because the IG investigation found no reprisal.  As we  have  explained,  it
is for the AFBCMR, and not the 3AF IG, to decide whether her  objections  to
the PRF-which transcend reprisal-are valid.

DPPPO also maintains that no relief is  warranted  in  respect  to  the  OSB
recitation of the applicant’s duty history.  The date on  the  duty  history
indicates that on November 2,  1998,  she  was  Sembach  Community  Services
Coordinator.  But the OPR for the reporting period  from  July  3,  1998  to
July 12, 1999 suggests that she was  the  Family  Advocacy  Element  Leader.
The title of Sembach Community  Services  Coordinator  never  even  existed.
The three OSBs attached to the advisory opinion drop the Sembach  title  and
add the correct one that  was  not  given  until  January  2000.   The  fact
remains that at the time of the selection board, the  acting  title  on  the
OSB assignment history  was  Sembach  community  Services  Coordinator,  not
Family  Advocacy  Element  Leader,  as  the  OPR  has  it.   The   resulting
discrepancy could only have puzzled the 1999 Lt Col board,  prejudicing  the
applicant’s chances for promotion.

If the AFBCMR takes the time to go through the actual evidence  for  itself,
rather than treat the 3AF IG’s  conclusions  as  a  fait  accompli  (as  the
advisory opinions clearly do), we believe it will  see  that  the  applicant
has indeed suffered career injury.  This is one of those unusual  situations
in which the applicant’s record is so unfair for such long  period  of  time
that the SSB system cannot reasonably be expected  to  correct  the  matter,
and as a result, direct promotion is called  for.   That  is  our  strongest
request.  If, as our brief explained,  the  promotion,  then  it  should  at
least mandate consideration by an SSB based on  a  fully  corrected  record.
Any SSB that is conducted should be furnished a memorandum  indicating  that
because of previous career injury, it should  deem  the  applicant  to  have
received a Definitely Promote on the PRF.

Counsel’s complete response is at Exhibit G.
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:

AFPC/DPPPEP states that having carefully reviewed the  applicant’s  attorney
letter, they have not altered the conclusions  and  recommendations  reached
in their earlier advisory.   The  applicant’s  attorney  actually  seems  to
desire the AFBCMR to “create” policies that were not allowed for  all  other
AF officers at the time the report was rendered.  As  they  pointed  out  in
their 16 October 2003 advisory, promotion statements were prohibited at  the
time the 2 July 1999 report closed out.  While the attorney  now  apparently
accepts that such a comment was prohibited,  he  now  inappropriately  turns
his attention  to  the  ISS  recommendation  included  in  the  report.   AF
policies are created to ensure all AF members are governed by the  same  set
of rules… not according to their own as the attorney seems to  suggest.   As
indicated in our advisory, the ISS recommendation was appropriate  when  the
report closed out.  Once again, it isn’t clear why the attorney’s  asserting
that such a  recommendation,  while  literally  accurate,  is  unfair,  such
appropriate   recommendations   actually   make   the    report    stronger.
Accordingly, it is not  a  good  argument  to  refute  such  an  appropriate
recommendation.

As for the issue of a new PRF,  the  applicant  still  fails  to  provide  a
revised  PRF  for  the  Board’s  review  and  consideration.   The  attorney
indicates, “Finding an appropriate general officer to prepare the  PRF  will
be no problem, quite obviously.”  Exactly  what  general  officer  and  what
makes it appropriate for him/her to render the PRF at this point?   Many  AF
officers would like the opportunity to pick or choose  the  general  officer
they  desire  to  render  their  PRF  (especially  after  non-selection  for
promotion), but that is simply not how our  system  is  designed  or  works.
The applicant (or her attorney) has not provided  clear  evidence  that  the
evaluators on the PRF and OPR were not able  to  provide  a  fair  and  just
assessment of her performance.

Finally, the attorney indicates DPPPE failed to address the allegation  that
gender played an improper role in her  treatment.  We  again  defer  to  the
official conclusions of the IG “…that there was no evidence of  gender-based
discrimination…” While the attorney may find that conclusion  “suspect,”  no
valid reason or evidence has been presented for  us  to  do  the  same.   IG
investigations use parties outside those in the  official  rating  chain  to
review all available evidence and interview those closest  to  a  situation.
In this case, the findings of the investigator  concluded  that  gender  did
not play a role in the applicant’s treatment.  In any case,  where  findings
are not in favor of an accuser, they are  not  going  to  agree  with  those
findings; however, that alone does not make findings inaccurate  or  unjust.
Nothing has been provided to cause us to draw a  different  conclusion  than
the official specifically appointed to review the accusations.

AFPC/DPPPEP complete evaluation is at Exhibit H.

AFPC/DPPPO recommended denial and  states  that  in  this  particular  case,
several assertions are  made  regarding  unprofessional  conduct,  reprisal,
favoritism, and other forms of  discrimination  against  the  member,  which
counsel alleges are the underlying factors or true characterization  of  the
applicant’s complaints.  Nevertheless, they believe  the  substance  of  her
request as it pertains to SSB consideration  or  a  direct  promotion  rests
with an alleged error in the 2 July 1999 Officer Performance  Report  (OPR),
P0599B Officer Selection Brief (OSB).

Therefore, regarding the 2 July 1999 OPR and  P0599B  PRF,  they  considered
and accepted as true AFPC/DPPPE’s advisory which did not and still does  not
support the applicant’s request to correct the OPR  or  change  the  PRF  as
explained in their letter of response, dated 30 April 2004.  At this  point,
there is no basis to recommend approval for  SSB  consideration,  or  direct
promotion if  the  subject  matter  expert  (DPPPE  does  not  validate  the
existence of an  error  in  regards  to  this  portion  of  the  applicant’s
selection record.  Furthermore, since our evaluation process requires us  to
rely on the opinions of other Air Force experts, we are not  in  a  position
to refute DPPPE’s findings or the findings of the USAFE  Inspector  General,
but trust in the integrity of each conclusion to render our recommendation.

Additionally, in her initial application, the  officer  contended  her  duty
history did not reference her Family Advocacy position.   Specifically,  her
counselor states, “her record was incorrect in that  her  duty  history  did
not reference her Family Advocacy position when she met the Lt  Col  Board.”
We attached copies of the OSBs reflecting her duty title as Family  Advocacy
Element Leader to the initial advisory to show this  claim  was  not  valid.
Counsel now clarifies the actual error on the P0599B OSB  was  an  erroneous
duty title, effective 2 November 1998, as Sembach Community Services  Coord.
 Given  this  new  information,  it  appears  the  duty  title  is  in  fact
erroneous.  However, they strongly believe this error on  its  own  was  not
likely the key to the applicant’s nonselection for  promotion,  but  instead
the result of an assessment of her entire selection record.

AFPC/DPPPO complete evaluation is at Exhibit I.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel reviewed the Air Force evaluations and stated  neither  of  the  two
opinions alters the case or cures the problems set forth in  their  December
2, 2003 reply to the earlier advisory opinions.

The April 30, 2004 advisory opinion  suffers  from  the  same  defects  they
previously identified.  This 1 ½ page advisory makes no  effort  to  address
with  particularity  the  substantial  evidence  of   unfairness   that   we
submitted.  Instead, it engages in a lot of rhetoric, and  asks  the  AFBCMR
simply to defer to findings of the Inspector General’s  (IG)  investigation.
This is wrong for three reasons.  First,  the  advisory  opinion  is  highly
selective in its reference to what the IG found substantiated, what  the  IG
found unsubstantiated and what the IG never conclusively determined one  way
or the other.   They  have  already  demonstrated  the  inadequacy  of  that
investigation, with particular reference to hard evidence, and there  is  no
purpose to repeat that demonstration in this letter.  Please refer to  their
prior submissions.   Second, the IG investigation necessarily based only  on
all the evidence available at the time; the decision here, however; two  are
not the same.  Third, as they also previously  explained,  Congress  imposed
on the Secretary, acting through this “Board of civilians,” 10 U.S.C.  1552,
the duty to determine  independently  whether  an  error  or  injustice  has
occurred.   The IG process, whatever it strengths  and  weakness  is  not  a
substitute for de novo determination of disputed  issues  in  this  civilian
forum.

The May 21, 2004 advisory opinion from  DPPPO  is  easily  summarized:  that
office does not itself  evaluate  an  applicant’s  submissions,  but  simply
takes as a given the conclusions set forth  in  other  offices’  advisories.
Such an advisory opinion adds nothing to the conversation.   In  this  case,
however, DPPPO has conceded that there  was  an  error  on  the  applicant’s
PO599B OSB.  DPPPO maintains that this now-admitted  error  was  not  likely
the key to her failure of selection, suggesting instead  that  her  Passover
was “the result of an assessment of  her  entire  selection  record.”   That
does not carry the service’s burden under the case law, which  requires  the
government to prove, once an error has been identified that has  some  nexus
to the adverse action (duty titles  being  more  than  trivial  matter  when
evaluating an officer’s record), the same adverse  action  has  occurred  in
any event.  E.g., Frizelle v. Slater, 11l F.3d 172  (D.C.  Cir.  1997).   We
would only add that if the intent behind the language quoted was to  suggest
that the applicant’s record suffered from some flaw  that  was  so  profound
that it precluded her promotion, any  such  implication  would  be  entirely
false--and we invite the AFBCMR to examine her record for itself  from  this
perspective.  It is a fine record, and certainly a promotable one.

Finally, since the applicant  has  asked  for  a  direct  promotion,  it  is
appropriate to make the Board and the  Secretary’s  delegate  aware  of  her
latest achievements, so they may make a decision in light  of  her  current,
continuing high level of contribution to the mission of  the  United  States
Air Force.  In 2002, she was Social Worker of the Year for  the  Air  Combat
Command, and in 2003, she was Social Worker of the Year for  the  Air  Force
Special Operations Command.  Earlier this year she was named  Social  Worker
of the Year for South Georgia Chapter of the National Association of  Social
Workers.  Pertinent documents are enclosed. Her OPRs  continue  to  strongly
recommend her promotion to the grade of lieutenant colonel.

If the AFBCMR takes the time to go through the actual evidence  for  itself,
rather than treat the 3AF IG’s  conclusions  as  a  fait  accompli  (as  the
advisory opinions clearly do), they believe it will see that  the  applicant
has indeed suffered career injury.  This is one of those unusual  situations
in which the applicant’s record is so unfair for such a long period of  time
that the SSB system cannot reasonably be expected  to  correct  the  matter,
and that as result, direct promotion is called  for.   That  is  our  strong
request.  If, as our brief explained, the  AFBCMR  is  for  any  reason  not
disposed to recommend direct promotion, then  it  should  at  least  mandate
consideration by an SSB based on a fully corrected record. Any SSB  that  is
conducted should be  furnished  a  memorandum  indicating  that  because  of
previous career injury, it should deem the  applicant  to  have  received  a
Definitely Promote on the PRF.

Nothing in the latest advisory  opinions  suggests  a  different  course  of
action, especially given the AFBCMR’s “abiding moral sanction to  determine,
insofar as possible, the true nature of an alleged  injustice  and  to  take
steps to grant thorough and fitting relief.”  Duhon v.  United  States,  461
F.2d 1278,1281 (Ct. Cl. 1972), quoting Caddington v. United States, 147  Ct.
Cl. 629, 178 F. Supp. 604, 607 (1959); see also Thomas v.  Cheney,  925  F2d
1407, 1423-24 (Fed. Cir. 1991).

Counsel’s complete response, with attachments, is 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  an  error  or  injustice.   After  thoroughly  reviewing  the
applicant’s submission, the Board is not persuaded that her  request  should
be granted.  In  this  regard,  we  note  that  during  the  period  of  the
contested July  1999  OPR,  promotion  recommendation  statements  were  not
allowed to be included in OPRs. The recommendation for ISS at the  time  the
report was written was appropriate and the  inclusion  of  a  stratification
statement by the rater was optional.  The  applicant  did  not  present  any
credible evidence from her senior rating chain or other agencies to  support
her contention of error or injustice.   With respect to the PRF, we are  not
persuaded that there were any  errors  or  improprieties  in  her  promotion
recommendation process. The applicant did not provide any support  from  her
rating chain or MLR which would lead us to believe that  the  contested  PRF
as written, is an inaccurate depiction of her  potential  to  serve  in  the
next higher grade.  In regards to the duty  title  on  the  OSB,  the  Board
notes that the Air Force  acknowledges  that  there  was  an  error  on  the
applicant’s OSB prepared for the  CY99B  selection  board,  however,  it  is
highly unlikely  this  error  was  the  sole  cause  for  her  nonselection.
Therefore, we are in agreement with the  Air  Force  and  are  compelled  to
conclude that the duty title constitutes  a  harmless  error  and  does  not
warrant consideration by an SSB.  In view  of  the  foregoing,  and  in  the
absence of evidence to the contrary, we agree with  the  recommendations  of
the OPRs and adopt their rationale as the basis for our  decision  that  the
applicant has failed to sustain her burden  of  establishing  that  she  has
suffered either an error or  an  injustice.   Accordingly,  the  applicant’s
requests are not favorably considered.

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 issue(s) 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  Docket  Number  BC-2003-02043
in Executive Session on 14 September 2004, under the provisions of  AFI  36-
2603:

                 Ms. Olga M. Crerar, Chair
                 Mr. James W. Russell III, Member
                 Mr. John B. Hennessey, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 1 Jul 03, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. HQ USAFE/IG Report, dated 5 May 99.
      Exhibit D. Letter, AFPC/DPPPE, dated 16 Oct 03.
      Exhibit E. Letter, AFPC/DPPPO, dated 16 Oct 03, w/atchs.
      Exhibit F. Letter, SAF/MRBR, dated 28 Feb 03.
      Exhibit G. Counsel’s Response, dated 2 Dec 03, w/atchs.
      Exhibit H. Letter, AFPC/DPPPEP, dated 30 Apr 04.
      Exhibit I. Letter, AFPC/DPPPO, dated 21 May 04.
      Exhibit J. Letter, SAF/MRBR, dated 1 Jul 04.
      Exhibit K. Counsel’s Response, dated 13 Jul 03, w/atchs.




      JAMES W. RUSSELL III
      Acting Panel Chair