RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01533
            INDEX NUMBER:  131.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  Yes


MANDATORY CASE COMPLETION DATE:  5 Nov 06


_________________________________________________________________

APPLICANT REQUESTS THAT:

The referral Officer Performance Report (OPR) rendered on him for the
period 1 Jul 01 through 30 Jun 02 be  voided  and  removed  from  his
record.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a 4-page memorandum with 16 attachments,  applicant  indicates  he
previously submitted the  same  request  to  the  Evaluation  Reports
Appeal Board (ERAB), which was denied on 15 Nov  04.   The  applicant
makes the following contentions in support of his appeal:

         a.  The  rater  did  not  provide  at  least  60   days   of
supervision.

        b.  The report contains inappropriate  reporting  of  alleged
events that would have occurred outside the reporting period.

        c.  Performance Factors marked “Does Not Meet  Standards”  in
Block V are not justified by substantiating documentation, the Report
of Investigation (ROI), or factual support.

        d.  Rater comments  in  Block  VI,  Lines  8  and  9  violate
specific guidance in AFI 36-2406.

         e.  The  rater  exaggerated  the  number   and   nature   of
allegations of which he was accused.

Applicant discusses in detail the issue of period of supervision  and
submits documentation he contends shows that  in  Jul  01  his  rater
should have been officially  changed.   He  also  discusses  what  he
contends were false allegations of misconduct filed against him by an
NCO under his command, which his rater based the adverse  report  on.
He states that all of the six instances of misconduct alleged by  the
NCO were “ultimately unsubstantiated” by  the  Investigating  Officer
(IO) in his 27 Nov 01 ROI.

In further support of his appeal,  applicant  provides  a  letter  of
support from his former group commander, an “unabridged” copy of  the
27 Nov 01 ROI with attachments, copies  of  previous  and  subsequent
OPRs to the contested report, and other supporting documentation.

The complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is a medical doctor who entered active duty in the  Air
Force on 19  May  90  and  is  currently  serving  in  the  grade  of
lieutenant colonel.  Based on documents submitted by  the  applicant,
on 16 Jul 01, an NCO under the applicant’s command filed a  complaint
against him with the Group commander consisting  of  essentially  six
allegations:

        a.  Misuse/theft of government property.

        b.  Solicitation.

        c.  Cruelty and maltreatment of subordinates.

        d.  Ordering subordinates  to  falsify  documents  or  misuse
government equipment.

        e.  Harassment of subordinates.

        f.  Unprofessional conduct or dereliction in the  performance
of duties as the EMF commander and/or as an Air Force officer.

Detailed findings are contained in the ROI at Exhibit  A.   With  the
exception of  the  referral  OPR  closing  30  Jun  02,  all  of  the
applicant’s performance reports reflect  overall  ratings  of  “Meets
Standards.”
_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPP recommends denial of the applicant’s request  to  void  his
OPR.  However, they do recommend that the last line in Section VI  be
corrected to remove the statement,  “…  and  inefficiently  used  ….”
They opine that the ROI  did  not  substantiate  that  the  applicant
“inefficiently used” his personnel.

The applicant failed to provide supporting  documentation  the  rater
did not have sufficient supervision to render the report in question.
 The comments in the report are not inaccurate according  to  policy.
Regarding the applicant’s assertion that events  were  documented  in
the report that occurred outside the reporting period, they note that
although the allegations took place  outside  the  reporting  period,
they were not substantiated until the ROI was  completed,  which  was
within the reporting  period  and,  therefore,  the  information  was
documented appropriately and in accordance with current guidelines.

AFPC/DPPP  notes  that  the  ROI  did  substantiate  several  of  the
allegations and that the referral comments made  by  the  rater  were
appropriate.  They also note that  the  marking  of  the  performance
factors in Section V match the comments made.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation, the applicant  indicates
he has no additional evidence to submit, but what  he  has  submitted
should cast considerable doubt on the conclusions on  which  the  Air
Force evaluation is largely based.  He asks that the Board  carefully
review the ROI and pay particular attention to the letter of  support
submitted by his former group commander who has  taken  “considerable
time and effort”  in  painstakingly  reviewing  the  entire  ROI  and
supporting documents.

The applicant indicates that he finds several of the comments in  the
Air Force evaluation to be either misstated or incorrect.  He  states
that the real reason the NCO filed a complaint against him  was  that
he had counseled her on absenteeism and tardiness  and  that  he  had
ordered her to file leave for an absence of two days that  could  not
be accounted for.   He  states  this  is  revealed  in  the  ROI  and
substantiated by testimony from witnesses.

The  applicant  disagrees  with  AFPC/DPPP’s  conclusion   that   the
documentation he submitted did not substantiate he was reassigned and
should have had a change of rater.  The applicant also disagrees with
the statement that the comments in  his  report  are  not  inaccurate
according to policy.  He believes the statements  are  not  based  in
fact and are not supported by any justification.  As an  example,  he
notes the comment “integrity substandard”  violates  AFI  36-2406  in
this regard.  Applicant references the comments of his  former  group
commander  that  “no  specific  reasons  for   the   leadership   and
professional failures are documented in the  performance  report,  or
how he inefficiently used personnel….  I believe these are misleading
and unfair statements….  The same applies for  the  three  downgraded
blocks in Section V of the report.”

Applicant states that AFPC/DPPP is incorrect in their view  that  the
“information used in the report was not known in the previous  period
and therefore could not be used then.”  The applicant states that his
additional rater on  the  previous  report  was  well  aware  of  the
information as  he  held  the  report  pending  the  outcome  of  the
investigation and did not sign it until 9 May 02, long after the  ROI
and all subsequent related actions were  a  matter  of  record.   The
applicant states the additional rater  elected  not  to  include  the
information in the report because of the poor quality of the ROI  and
the inconclusive, haphazard nature of its recommendations.  He opines
that his rater took advantage of the additional rater’s  reassignment
to include the comments in a subsequent report.

The applicant notes that AFPC/DPPP concedes that “inefficient use  of
personnel” was not substantiated by the ROI.  However, he opines that
AFPC/DPPP’s evaluation is “inconsistent and illogical”  in  conceding
this shortcoming  while  using  the  same  language  to  justify  the
allegation of “ineffective leadership.”  The applicant  indicates  he
wants to emphasize to the Board that none of the allegations  against
him were properly substantiated.  The applicant notes the opinion  of
the ROI provided by his former group commander and  requests,  again,
that the Board carefully review the ROI and  accompanying  supporting
documentation.

The applicant’s complete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the  Board’s  request,  AFPC/JA  provided  an  additional
evaluation  to  primarily  address  the  applicant’s  contention  his
contested OPR violated Air Force policy.  AFPC/JA  recommends  denial
of the relief requested by the applicant.

AFPC/JA notes the reasons cited by the applicant  why  the  contested
OPR is biased, unfair, and improper:

        a.  The rater did not provide at least 60 days of supervision
during the reporting period.

        b.  The report contains inappropriate  reporting  of  alleged
events that would have occurred outside the reporting period.

        c.  The marking of “Does Not Meet Standards” in  Block  V  of
the report is not properly substantiated.

        d.  rater comments  in  Block  VI,  lines  8  and  9  violate
specific guidance in AFI 36-2406.

         e.  The  rater  exaggerated  the  number   and   nature   of
allegations.

AFPC/JA notes that  while  the  applicant  did  transfer  during  the
reporting period, the transfer is reflected  on  the  OPR  not  as  a
change of organization, but rather, as a change of  duty  within  the
overall  organization,  i.e.,  he  remained  assigned  to  the   same
Contingency 86th Response Group with duty at the 86th  Medical  Group
at  a  different  location.   While  the  applicant’s  day   to   day
supervision may have changed because of that duty change, it does not
mean the rating official had to be (or  should  have  been)  changed.
AFI 36-2406, Para 3.1.1.1 defines the rater as the  official  in  the
rating chain designated by management to provide periodic performance
feedback  and  initiate  performance  reports  (usually  the  ratee’s
immediate supervisor).  The Air Force does not require the designated
rater to be an individual’s immediate supervisor.  The rater  on  the
contested OPR was the rater for the applicant’s previous OPR, thereby
rebutting any notion that he was suddenly assigned as the applicant’s
rater with a view towards taking some  adverse  action  against  him.
The applicant has  not  presented  any  evidence  that  a  change  in
supervision was required by his change of duty  and  location  within
the Contingency Response Group.  In particular, he has  presented  no
evidence to prove that the individual he claims should have rated him
was ever designated by management and assigned as his rater.  In  the
absence of such evidence, it can be presumed  that  the  rater  acted
properly in continuing to serve as rater for the full 365 days of the
challenged rating period.

The bulk of the applicant’s appeal  is  devoted  to  his  belief  the
negative comments on  the  contested  OPR  are  biased  or  false  or
misrepresented information, which resulted from  a  vendetta  against
him by an NCO in  his  command.   From  the  evidence  available,  it
appears the NCO’s allegations prompted the Wing commander to  appoint
an  IO  to  look  into  allegations  against  the   applicant.    The
allegations and the IO’s findings, analysis, and conclusions are laid
out in a 61-page report.  They disagree with the applicant  that  the
IO report does not support the ratings he was given on the OPR.  They
note the applicant clearly has the burden of proving  by  cogent  and
convincing  evidence  that  an  OPR  contains  material  errors   and
injustices such as may have prevented him from being  considered  for
promotion on a fair and equitable basis.  The level  of  evidence  is
high because the applicant “must overcome the strong, but rebuttable,
presumption  that  administrators  of  the  military,   like   public
officers, discharge their duties  correctly,  lawfully  and  in  good
faith.”  AFPC/JA notes several court cases that support their view.

AFPC notes that while the applicant spends  much  of  his  submission
challenging the many specific charges levied against him by  the  NCO
or mentioned in the report, the OPR is limited to  one  line  on  the
back and three blocks checked on the front.  They further  note  that
the  specific,  negative  characterizations  contained  in  the  line
“Harassed and inefficiently used  personnel,  integrity  substandard.
Research job next—can still contribute” are fully confirmed by the IO
in his report.  In addition, the findings in Block V  that  applicant
did  not  meet  standards  in  the  areas   of   leadership   skills,
professional  qualities  and   organizational   skills   track   this
conclusion and are totally consistent with those IO findings.   While
many other  allegations  were  investigated  and  challenged  by  the
applicant, only those specific characterizations described above were
actually used in the contested OPR.

Regarding the applicant’s contention that information was  used  that
fell outside the reporting period, they believe  this  allegation  is
without merit.  Para  3.7.6  of  AFI  36-2406,  permits  the  use  of
information on events which preceded  the  reporting  period  if  the
events add significantly to the evaluation report, were not known  to
and considered by the prior raters, and were not previously reflected
in a prior report.  These conditions were all met.  As best they  can
determine, the IO did not complete his report until Nov 01 or  later.
While the conduct reported upon occurred in a prior reporting period,
the analysis, findings and conclusions of the  IO  were  not  made  a
matter of record until well into the  contested  report’s  period  of
observation.

Applicant challenges the propriety of the last line of  Block  VI  as
being too vague, in violation of Para 3.9.1.2,  AFI  36-2406.   While
they agree that the phraseology used is not as specific as  would  be
ideal, they nevertheless,  believe  it  meets  the  basic  regulatory
standard.  They note that  the  referral  process  insures  that  the
referral comments are explained  in  the  referral  memorandum,  thus
precluding any potential notice or sufficiency problem.

In his rebuttal to the  advisory  prepared  by  AFPC/DPPP,  applicant
offers several additional arguments regarding the  OPR  in  question;
however,  those  arguments   essentially   reiterate   his   previous
submission.  They note that with respect to those matters  that  were
included in the OPR, the rater did not rely solely  on  testimony  by
the NCO making the charges, but, rather, obtained other corroborating
evidence to substantiate  the  conclusions.   They  again  note  that
regarding the argument he was rated by the wrong rater, the applicant
did not offer any evidence to support his contention.

AFPC/JA state that they disagree  with  AFPC/DPPP’s  conclusion  that
“ineffective use of personnel” was not substantiated by the  IO.   In
their view, the IO did reach the conclusion that resources (including
personnel) were not used efficiently.

The complete additional evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT”S RESPONSE TO ADDITIONAL AIR FORCE EVALUATION:

In his response to the additional Air Force evaluation, the applicant
states he has already submitted a considerable body  of  information,
which has been  largely  discounted,,  in  rendering  the  additional
evaluation.  He asks the Board  to  carefully  review  the  documents
presented, including the ROI, with particular attention to the letter
addressed to the Board byhis former  commander,  who  was  personally
involved in the case.   He  notes  that  his  former  commander  took
considerable time and effort in painstakingly  reviewing  the  entire
ROI and supporting documents and reached a different  from  those  of
the Air Force evaluators.  The applicant addresses  several  comments
in the AFPC/JA evaluation he considers either “misstated  or  frankly
incorrect.”

The applicant indicates disagreement with  AFPC/JA’s  assertion  that
the  complaint  of   harassment   made   against   him   was   “fully
substantiated.”  He states that, in fact,  none  of  the  allegations
made aginst him were  ever  properly  substantiated.   The  applicant
states that he submits to the Board that the IO’s opinion in his case
was not based on fact, but only represents a personal leaning towrdsa
a “vague finding of some kind of misconduct  without  regard  to  the
lack of any evidence for it.”  The applicant further opines that both
of the evaluations rendered to date in his  case  have  done  “little
more than point back to the erroneous conclusions of the ROI, without
providing any new analysis or insights.  The applicant  asserts  that
the central theme in his case is simple, that an employee found to be
absent without leave (AWOL) and firmly counseled for her  absencemade
a number of wild, false allegations to deflect attention from her own
misconduct in order  to  evade  the  administrative  consequences  of
having been AWOL.  The applicant states that this “inescapable  fact”
was  established  during  the  course  of  the   investigation,   but
completely ignored by both the IO and AFPC/JA.

The applicant  indicates  he  “adamantly”  disagrees  with  AFPC/JA’s
assertion that the last line of Block VI of the contested  OPR  meets
the “basic standard.”   He  also  notes  that  his  former  commander
disagrees and rferences the comments made by his former commander  in
that regard.  The applicant opines that AFPC/JA  has  discounted  his
former  commander’s  very  qualified  and  considered  opinion  in  a
watsebasket dismissal  as  little  more  than  “letters  from  former
supervisors.”   The  applicant  again  reiterates  that  his   former
commander was intimately involved in  the  case  and  served  as  his
commander immediately preceding and during some of the alleged events
in the case.

The applicant opines that AFPC/JA’s assertion that the contested  OPR
was a result of several findings  is directly contradicted  by  their
own remark that “the negative information in the OPR  is  limited  to
one line on the back and three blocks on the front … that line on the
back states, “Harassed and inefficiently  used  personnel,  integrity
substandard.”  The applicant further opines that if the  report  was,
in fact, based on several findings, they should have been duly noted.
 He asserts that, in truth, the report  was  rendered  based  on  the
alleged harassment of one personnel and that the adverse comments are
based entirely on the OI’s opinion that “it appeared  that  [it]  had
occurred,” in spite  of  a  lack  of  substantiating  evidence.   The
applicant states that irrespective of  whether  unit  personnel  were
used efficiently or not, the allegation by itself does  not  rise  to
the level justifying the markdowns on the front of the contested OPR.

The applicant discusses what he believes was a contradiction  of  the
first evaluation by AFPC/JA.  The applicant believes that AFPC/JA has
only parroted the opinions of the IO in his  case.   He  opines  that
this serves to highlight that there really are no facts presented  in
his case, only judgements and beliefs.  The applicant states that  he
and his former commander would be willing to appear before the  Board
to clarify any of the many elements of the complex and lengthy case.

The applicant’s complete response 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.  Insufficient relevant evidence has been presented to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of  the
applicant's complete submission in judging the merits  of  the  case;
however, we agree with the opinions and recommendations  of  the  Air
Force offices of primary responsibility and adopt their rationale  as
the primary basis for our conclusion that the applicant has not  been
the victim of  an  error  or  injustice  warranting  removal  of  the
contested report from his  record.   After  review  of  the  complete
evidence of record and a thorough review of  the  ROI  provided,  the
Board does not find a sufficient basis to override the  judgement  of
the applicant’s rating chain on the contested report.   Although  the
applicant provided a  compelling  statement  from  his  former  group
commander, who previously rated him in the same job, the  Board  does
not find it sufficient to override  the  view  of  the  rating  chain
during the period in question.  While  we  find  some  merit  in  the
applicant’s assertion that the investigation of him was caused  by  a
disgruntled subordinate, this does not invalidate the  findings  made
during the investigation.  While the ROI is not conclusive on all  of
the allegations made, we believe it does provide a  sufficient  basis
for the applicant’s rating chain to render the OPR in  question.   We
would further note that the rating chain on the  report  in  question
had the advantage of reviewing the ROI in context of their  personal,
firsthand  observation  of  the  applicant.   Regarding  whether  the
contested OPR violates the requirements in AFI 36-2406, we accept the
rationale provided by AFPC/DPPP and AFPC/JA that  it  does  not.   We
also agree  with  AFPC/JA  regarding  the  comment  included  in  the
applicant’s OPR “and inefficiently used personnel….”  We believe  the
rater can draw such a conclusion on the combined basis of the ROI and
his own personal evaluation of the applicant.  Additionally, it  does
not appear that this statement was intended to be a direct quote from
the ROI.  Therefore, in the absence of evidence to the  contrary,  we
find no basis to grant the relief requested or the recommended change
made by AFPC/DPPP.

4.  The applicant's case is adequately documented and it has not been
shown that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of  the   issues   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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-2005-
01533 in Executive  Session  on  21  July  2005  and  on           19
September 2005, under the provisions of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. Albert C. Ellett, Member
      Mr. Jay H. Jordan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Apr 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPP, dated 25 May 05.
    Exhibit D.  Letter, SAF/MRBR, dated 3 Jun 05.
    Exhibit E.  Letter, Applicant, dated 15 Jun 05.
    Exhibit F.  Memorandum, AFPC/JA, dated 24 Aug 05.
    Exhibit G.  Letter, AFBCMR, undated.
    Exhibit H.  Memorandum, Applicant, dated 14 Sep 05.





                                   MICHAEL K. GALLOGLY
                                   Panel Chair