RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02933
            INDEX CODE: 131.02, 111.01, 111.05
      XXXXXXX    COUNSEL: NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  25 Mar 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Referral Officer Performance Report (OPR) for the period ending 21
Mar 05,  a  6 Jul  05  Letter  of  Reprimand  (LOR),  two  Letters  of
Counseling  (LOCs)  dated  7  and  8 Jun  05,  and   his   Unfavorable
Information File (UIF) be declared void removed from his records;  the
removal of his name from  the  Calendar  Year  2004C  (CY04C)  Captain
Promotion List be overturned; and he  be  promoted  to  the  grade  of
captain effective and with a date of rank (DOR) of 27 Sep 05.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His treatable medical condition [Generalized Anxiety  Disorder  (GAD)]
was not diagnosed until Jan 05, 10 months into the supervision  period
of the rater of  the  contested  report.   His  evaluators  failed  to
properly consider  his  continuous  improvement  since  the  treatment
began.  The OPR was based on petty reasons and  ignored  his  previous
five years of excellent performance.

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

_________________________________________________________________

STATEMENT OF FACTS:

The  following  information  was  extracted  from  official  documents
included in the applicant’s submissions, his  available  military  and
Department of Veterans  Affairs  (DVA)  records,  the  Removal  Action
package, and the AFBCMR Medical Consultant’s advisory.

The applicant underwent a commissioning physical exam for  entry  into
the Marine Corps on 13 Aug 97. On the Report  of  Medical  History  he
checked  yes  to  asthma,  among  other  things,  but  checked  no  to
depression/excessive worry.  Associated documentation indicated he had
a history of asthma treatment from age 10-12  that  was  disqualifying
for entry  into  the  Marines.   He  underwent  another  commissioning
medical exam by the Air Force on 4 Feb  98.   He  checked  no  to  the
questions he had previously answered yes to in Aug 97, did not  report
his   childhood   asthma   history,   and   again   checked   no    to
depression/excessive worry.  He was medically cleared and reported for
Officer Training School (OTS) on 4 May 98; however, after 17  days  he
was given an entry level separation (uncharacterized) on 20 May 98, in
the grade of airman first class for failure to complete commissioning.
 There are no further details in the available documentation.

Over a year later, the applicant enlisted in the Air Force and made no
mention of a history of asthma on his medical exam  in  Sep  99.   The
applicant entered active duty on 8 Sep  99  and  completed  basic  and
security force training. He served in the grade of airman first  class
at Minot AFB, ND, as a Response Force Leader. His  performance  report
for the period 8 Sep 99 through 20 Apr 01 reflects an  overall  rating
of 5.

In 2001, the applicant was selected for OTS.  He was commissioned as a
2nd  lieutenant  and  entered  active  duty  on  27 Sep  01.   He  was
eliminated  from  Air  Battle  Manager  Training  due  to  performance
deficiency and reassigned to XXXXXXX  as  a  security  forces  officer
around Mar 03.

The applicant’s OPR for the period 22 Mar 03 through 21 Mar 04,  while
assigned as the action officer with the HQ Air Mobility Command  (AMC)
Threat Working Group, reflected excellent performance and that he  met
all standards.

During the period in question, the applicant was serving in the  grade
of 1st lieutenant (1LT) as the action officer for the Security  Forces
Plans Branch, HQ AMC, at XXXXXXX, IL.  The rater was the Chief,  RAVEN
& Contingency Support, HQ AMC; the additional  rater  was  the  Chief,
Plans & Programs Branch, HQ AMC; and the reviewer  was  the  Director,
Installations & Mission Support, HQ AMC.

The CY04C Captain Promotion Process  closed  out  on  30 Sep  04;  the
applicant’s projected promotion to captain was  to  be  effective  and
with a DOR of 27 Sep 05.

In a Statement of Medical Condition, dated 1 Feb 05, the Chief of Life
Skills Support Center, 375MDOS/SGOHC, XXXXXXX,  IL,  reported  to  the
additional  rater  that  the  applicant  had  voluntarily   sought   a
psychiatric evaluation to explore the possibility that he had a mental
disorder such  as  Attention  Deficit  Hyperactivity  Disorder  (ADHD)
because of difficulties he had  at  work.   The  Chief  indicated  the
applicant did not have ADHD but did experience a higher  than  average
degree of anxiety, which could contribute to his inability  to  handle
multiple tasks, pay attention  to  detail,  and  quickly  adapt  to  a
situation  requiring   mental   flexibility   and   creativity.    His
interaction  with  others   demonstrated   a   pattern   marked   with
awkwardness.  She initiated treatment for the condition of GAD, placed
him on an S4T profile for three months, and expected to see measurable
improvement.  She noted the applicant had demonstrated success in  the
military environment as an enlisted member.  The applicant  authorized
release of the Chief’s findings and recommendations to his command.

A  21 Mar  05  medical  entry  reported  the  applicant’s   noticeable
improvement in anxiety symptoms and functioning at work.

On 21 Mar 05, the OPR for the period 22 Mar 04 through 21 Mar  05  was
referred to the applicant.  He did not meet standards in “Organization
Skills” and “Judgment and Decisions” of the Performance Factors.   The
rater commented in Section VI  that  the  applicant  needed  increased
organization, time management, and attention to detail and  continuous
intense supervision on basic tasks.  The applicant rebutted on  11 Apr
05, contending in part that the rater did not take  into  account  his
GAD or the improvements in his work performance  since  treatment  for
the condition began.  The additional rater considered the  applicant’s
comments but concurred with the rater.

An 18 Apr 05 medical entry reported that the applicant’s condition had
improved and his  profile  would  be  allowed  to  expire  as  he  was
deployable without limitations.

On 29 Apr 05, the rater directed the applicant not to pursue  off-duty
employment at work during normal duty hours.   On  2 May  05,  he  was
directed not to discuss his “Quixtar” personal business at work.

On 10 May 05, the reviewer signed the referral  OPR,  concurring  with
the assessments of the rater and additional rater.

On 25 May 05, the applicant was notified of his reviewer’s  intent  to
recommend removal from the Captain Promotion List for failure to  meet
expected  standards  and   to   accomplish   tasks   without   intense
supervision.  The reviewer advised the  applicant  his  promotion  was
delayed  until  the  approval  authority  made  a  decision   on   the
recommendation and that he could submit any supporting  documentation.


In 26 and 30 May 05 rebuttal letters addressed to the Secretary of the
Air Force (SAF), the applicant contended  he  was  the  victim  of  an
unjust, discriminatory OPR and removal action because his rating chain
did not consider his medical  condition,  treatment,  and  performance
improvement.

In a 6 Jun 05 letter, the applicant requested  the  SAF  consider  his
rebuttal to the referral OPR.  He asserted neither  his  disorder  nor
his performance improvements following treatment  was  considered  and
the action was discriminatory based on his medical diagnosis.

On 7 Jun 05, the applicant acknowledged receipt of an undated LOC from
his rater for inappropriate email usage and language on 31 May 05 with
government equipment.  On 8 Jun 05, the applicant acknowledge  receipt
of an 8 Jun  05  LOC  from  his  additional  rater  for  inappropriate
personal interaction, to include emails,  between  himself  and  other
active duty male/female members.

Due  to  the  disciplinary  action  the  applicant  was  facing,   the
additional rater requested clarification regarding the impact  of  the
applicant’s  mental  condition   on   his   work   performance.    The
375MDOS/SGOHC’s 13 Jun 05  letter  reported  the  applicant’s  anxiety
intensified and contributed to  his  suboptimal  work  performance  in
settings where expectations exceeded his  abilities.  Since  beginning
treatment, the applicant  had  reported  improvement  in  his  energy,
motivation and ability to focus and concentrate.

On 14 Jun 05, the  applicant  provided  a  response  to  the  reviewer
regarding the referral OPR and the recommended removal  action.   Also
on 14 and 15 Jun  06,  the  applicant  was  counseled  about  off-duty
employment and conducting personal  for-profit  business  during  duty
hours.  He was also provided ancillary guidance and training materials
concerning the general  use  of  government  time  and  resources  for
personal gain.

On 6 Jul 05, the applicant received an LOR for promoting his  off-duty
business  during  duty  hours,  despite  being  counseled  on  several
occasions to cease, and was informed his actions  violated  the  Joint
Ethics Regulation, DOD 5500.7R.  He responded on 8 Jul 05, apologizing
for his errors in judgment and contending GAD affected one’s decision-
making abilities.  The LOR was  filed  in  the  applicant’s  UIF;  the
applicant rebutted the UIF action on 1 and 9 Aug 05.

On 14 Sep 05, the HQ  AMC  squadron  section  commander  notified  the
applicant he was recommending the applicant’s name be removed from the
promotion list for failure to obey a lawful order, as evidenced by the
LOCs and the LOR.  The applicant provided a  response,  with  numerous
attachments, on 19 Sep 05.

A 4 Oct 05 profile indicates the applicant was  world-wide  qualified.
At the applicant’s request,  375MDOS/SGOHC  provided  a  statement  of
medical condition on 5 Oct 05.  The statement indicated that  clinical
interview and psychological testing in Jan 05 confirmed  the  presence
of  long-standing  generalized  anxiety  symptoms.   In  Mar  05,  the
applicant had reported improvement in feelings of anxiety and  ability
to focus on  and  process  information.   He  also  reported  positive
feedback from his supervisor that coworkers found him  less  annoying.
The statement added that, although  the  applicant’s  anxiety  was  no
longer problematic, he began group therapy in Jul 05 to learn  how  to
improve his continued difficulty  in  relating  and  interacting  with
others.

On 30 Jan 06,  the  applicant  filed  a  complaint  with  the  HQ  AMC
Inspector General (IG,) contending fraud and abuse  by  his  chain  of
command with respect to the referral OPR.

On 5 Feb 06, the 375 Airlift Wing Judge Advocate (375 AW/JA) found the
case for removal action legally sufficient.

Because the promotion removal action was still ongoing, on 15 Feb  06,
the  AFBCMR  directed  that  the  applicant’s  case   be   temporarily
administratively  closed,  without  prejudice,  until  a   final   SAF
determination had been made regarding this issue.  The  applicant  was
so advised,  and  that  his  case  would  be  reopened  once  a  final
determination had been made.

On 21 Feb 06, HQ AMC/JA found the removal action legally sufficient.

In a letter to the HQ AFPC commander, dated 24 Mar 06, the HQ AMC vice
commander  recommended  the  applicant’s  name  be  removed  from  the
promotion list for disobeying or failing to follow  lawful  orders  on
several occasions.  The vice commander cited  the  referral  OPR,  the
LOCs, the LOR, and the UIF.

On 25 Apr 06, the Office of  the  SAF,  Inspector  General  (SAF/IGS),
notified the applicant that his complaint under Title 10, USC, Section
1034, Military Whistleblower Protection  Act,  had  been  reviewed  by
them, attorneys from the Administrative Law Division of the Air  Force
Staff Judge Advocate’s Office (HQ USAF/JAA),  and  the  Department  of
Defense (DOD) IG (see Exhibit G).  The  evidence  indicated  that  the
motive for  the  contested  OPR  was  not  related  to  any  protected
communications  but  was   based   on   observed   duty   performance.
Additionally, there was no evidence to suggest that the motive for the
recommendation to remove his name from the promotion list was  related
to  any  protected  communication  but  was  based  on  observed  duty
performance.

On 8 Jun 06, the SAF directed the applicant’s name be removed from the
CY04C Captain Promotion List.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/DPPP  recommends  disapproval,  contending  the   applicant’s
numerous  character  references  are  not  from  individuals  in   his
evaluation rating chain.  Also, the applicant mentions the  rater  did
not take into consideration  his  past  five  years  of  service.   An
evaluation  report  only  considers  performance  for  that   specific
reporting period and reflects performance, conduct, and  potential  at
that time, in that position.  The package recommending  the  applicant
be removed from  the  promotion  list  to  the  grade  of  captain  is
currently being staffed through the MAJCOM  enroute  to  the  SAF  for
approval/disapproval.  Final action by the SAF has not been completed.


A complete copy of the HQ AFPC/DPPP evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant submitted a 4-page response, dated 11 Jan  06,  with  11
attachments.   He  indicated  he  went  to  his  base  military  equal
opportunity (MEO) and inspector general (IG) offices but was told  his
case did not come under their purview.  However,  he  has  since  been
informed the AMC/IG may yet investigate his case.  As to his character
references, since his rating chain is the cause of  his  grievance  in
the first place, what choice did he have but to obtain references from
others?  The decision to remove him from the promotion list  was  made
well before the LOCs or  LOR  were  submitted.   The  underhanded  and
libelous LOR stemmed from an incident blown out  of  proportion.   His
raters made an active effort to destroy his career and blackball  him.


The applicant subsequently provided a 10 Mar 06 “updated”  version  to
his 11 Jan 06 rebuttal, asserting the advisory opinion is biased,  off
the mark, and lacking  in  perspective.   He  addresses  the  advisory
opinion’s “so-called ‘Facts and Comments’”.

Complete copies of applicant’s 11 Jan and 10 Mar  06  responses,  with
attachments, are at Exhibit E.

The applicant also wrote a 10 Mar 06 letter to the SAF  regarding  the
contested OPR, LOCs, LOR, UIF, and removal action, which was forwarded
to  the  AFBCMR  through  the  SAF/MR   Workflow   for   the   Board’s
consideration.  The letter, with attachments, is at Exhibit G.

In letter dated 2 May 06, the applicant requested his case be reopened
because the USAF and DOD IGs had  reached  a  final  decision  on  the
contested OPR.  His letter, with a copy of SAF/IG’s 25 Apr  06  letter
and a character reference, is at Exhibit H.  However, on 4 May 06, the
AFBCMR Staff advised him his case could not yet  be  reopened  as  the
removal action was still ongoing (Exhibit I).

_________________________________________________________________

AFBCMR MEDICAL CONSULTANT EVALUATION:

The AFBCMR Medical Consultant recommends  denial.   He  discusses  the
applicant’s  medical  conditions  and  circumstances  (including   the
applicant’s  inconsistent  answers  with  respect  to  asthma).    The
Consultant notes that satisfactory performance ratings and  promotions
are not entitlements; they are earned by performance and  demonstrated
potential.  The fact that the applicant was diagnosed and treated  for
GAD during the rating period does not form a basis to alter or void an
OPR.  Likewise, the presence of this disorder is not a basis to remove
documentation of misconduct from his  record  or  to  promote  him  to
captain.  If it was determined that his disorder played a  significant
role in his misconduct, it may be mitigating  for  punishment  but  it
does not demonstrate qualification or form a basis  for  promotion  to
the next higher grade.  Action  and  disposition  in  this  case  were
proper   and   equitable   reflecting   compliance   with   directives
implementing the law.

The AFBCMR Medical Consultant’s evaluation is at Exhibit J.

________________________________________________________________

APPLICANT’S RESPONSE TO AFBCMR MEDICAL CONSULTANT EVALUATION:

The  applicant  contends  he  has  provided  samples   of   his   work
demonstrating his professional qualities and  capabilities.   He  also
explains he initially checked “Yes” to asthma because  of  an  obscure
reference to it in his elementary school records, which was  based  on
his  mother’s  conjecture.   He  never  received  a  doctor’s   actual
diagnosis for asthma nor was he ever actually treated  for  same.   He
was advised by his recruiters to answer “No” to the asthma question on
that basis, and he did so in order to  correct  the  previous  mistake
made in good faith.  Despite that initial confusion,  his  application
for Marine Corps Candidate Class was approved.

A copy of the applicant’s response is at Exhibit L.

_____________________________________________________________

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.  After a thorough review  of  the
extensive documentation pertaining to this  appeal,  we  conclude  the
applicant’s submissions do not support  his  claim  that  the  actions
taken against  him  were  improper  and  should  be  set  aside.   The
applicant was diagnosed and treated for GAD in Feb 05, and  noticeable
improvement was reported in Mar 05. He appears to believe his GAD  was
so significant that it should have mitigated any  negative  assessment
of his duty performance.  We disagree.  While his symptoms of  anxiety
may have contributed to his decreased performance and  judgment,  this
does not signify that expected standards for  his  office,  grade  and
duties  should  be  disregarded.   The  applicant  has  not   provided
persuasive evidence establishing the referral OPR  was  an  inaccurate
assessment of his performance  during  the  pertinent  rating  period.
Also, the misconduct  for  which  he  was  disciplined  after  Mar  05
occurred when the symptoms of his GAD were reported much  improved  in
the medical record.  As noted by the AFBCMR Medical  Consultant,  GAD,
anxiety, or adjustment disorder did not impair the applicant’s ability
to know right from wrong or to  adhere  to  the  right,  and  did  not
directly and solely cause him to disobey his superior’s orders to stop
inappropriate email usage and interactions with others.   In  view  of
the above, we concur with the  opinions  and  recommendations  of  the
offices of primary responsibility and adopt  their  rationale  as  the
basis for our conclusion that the applicant has failed to sustain  his
burden of establishing that he has been the  victim  of  an  error  or
injustice.  Therefore, in the absence of evidence to the contrary,  we
find no compelling basis to recommend granting the  relief  sought  in
this application.

_________________________________________________________________

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  this  application  in
Executive Session on 18 July 2006 under the provisions of AFI 36-2603:

                 Ms. Kathleen F. Graham, Panel Chair
                 Mr. Wallace F. Beard, Jr., Member
                 Ms. Karen A. Holloman, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2005-02933 was considered:

   Exhibit A. DD Form 149, dated 13 Sep 05, and Fax (Character
                       References), received 14 Dec 05, w/atchs.
   Exhibit B. Applicant's Master Personnel Records.
   Exhibit C. Letter, HQ AFPC/DPPP, dated 7 Dec 05.
   Exhibit D. Letter, SAF/MRBR, dated 16 Dec 05.
   Exhibit E. Letters, Applicant, dated 11 Jan & 10 Mar 06,
                  w/atchs.
   Exhibit F. Letter, AFBCMR, dated 15 Feb 06.
   Exhibit G. Applicant’s Letter to Secretary of the AF, dated
                  10 Mar 06, w/atchs.
   Exhibit H. Letter, Applicant, dated 2 May 06, w/atchs.
   Exhibit I. Letter, AFBCMR, dated 4 May 06.
   Exhibit J. Letter, AFBCMR Medical Consultant, dated 16 May 06.
   Exhibit K. Letter, AFBCMR, dated 23 May 06.
   Exhibit L. Letter, Applicant, dated 22 Jun 06.




                                   KATHLEEN F. GRAHAM
                                   Panel Chair