RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                 DOCKET NUMBER:  BC-2006-01883
                                  INDEX CODE:  111.02
  XXXXXXXXXXXXXXXXX               COUNSEL:  NONE

                                  HEARING DESIRED:  YES
_________________________________________________________________

APPLICANT REQUESTS THAT:

His Officer Performance Report (OPR) rendered for  the  period  13 May  2004
through 12 May 2005 be voided and removed from his  records.   In  addition,
his  Unfavorable  Information  File  (UIF)  be  removed  from  his   Officer
Selection  Record  (OSR),  his  line  number  for  lieutenant   colonel   be
reinstated, and he receive back pay from 1 July 2005.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His supervisor  rendered  the  contested  report  in  reprisal  against  him
because he filed a Military Equal Opportunity (MEO)  complaint  against  his
supervisor  for  making  racial  remarks  about  Hispanics,  Filipinos,  and
Asians.

In support of his request,  the  applicant  submits  a  personal  statement,
copies of  his  OPRs;  training  reports,  promotion  recommendation  forms,
flight evaluation certificates,  medal  citations,  award  inputs,  e-mails,
numerous letters of recommendations, biography, and Security  Forces  Report
of Investigation.

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

_________________________________________________________________

STATEMENT OF FACTS:

The Military Personnel Database  (MilPDS)  indicates  the  applicant  has  a
Total Active Federal Military  Service  Date  and  a  Total  Active  Federal
Commissioned Service Date of 14 February  1989.   He  was  promoted  to  the
grade of major, effective and with a date of  rank  of  1  June  2000.   The
applicant was selected for promotion to lieutenant colonel by  the  Calendar
Year 2004B Lieutenant Colonel (CY04B) Central Selection  Board  (CSB)  which
convened on 12 July 2004.  His line number would have incremented  effective
1 July 2005.

The following is a resume of his OPR  ratings  commencing  with  the  report
closing 13 February 2000:

      PERIOD ENDING                     OVERALL EVALUATION

      13 Feb 00                                 MS
      29 Jan 01 (Major)                        MS
       4 Jun 01                                MS
      30 May 02                                MS
      31 May 03                                MS
      12 May 04                                MS
      12 May 05                                Contested Report
      23 Jan 06                                MS

On 26 October 2004, the applicant filed an informal  complaint  against  his
commander for inappropriate comments with regards to national  origin.   The
informal complaint was referred to the chain  of  command  for  an  inquiry.
The inquiry  substantiated  the  allegations  against  the  commander  which
resulted  in  the  commander’s  receipt  of  a  Letter  of  Counseling   and
sensitivity training.  The case was officially closed on 11 April 2005.

On 1 March 2005, the applicant’s commander counseled him in an e-mail  about
being tardy to work about 80% of the time.  On 10 March 2005, his  commander
initiated a Commander Directed  Investigation  (CDI)  into  allegations  the
applicant improperly solicited a junior officer, improper use of  government
resources, and dereliction of  duty.   The  CDI  substantiated  all  of  the
allegations.  On 18 April 2005, the applicant received notification that  he
was  being  considered  for  nonjudicial   punishment   (Article   15)   for
dereliction of duties  by  soliciting  a  junior  in  rank  for  a  business
transaction,  failing  to  fill  out  an  off  duty  employment  form,   and
unauthorized  use  of  government  resources.   Following  the   applicant’s
response to the notification, the approval authority decided the Article  15
was not appropriate; however, concurred with serving the applicant a  Letter
of Reprimand (LOR).  An Unfavorable Information File (UIF)  was  established
in accordance with AFI 36-2907.

On 19 April 2005, the applicant filed a  reprisal  complaint  with  HQ  AETC
Inspector General (IG) alleging his  commander  initiated  the  Article  15,
LOR, and UIF in reprisal for protected communications.  An IG  investigation
was opened as a result.

On 27 April 2005, the applicant received an LOR for violation of  the  Joint
Ethics Regulation (JER).  On 2 May 2005, the applicant acknowledged  receipt
of the LOR, and on 9 May 2005, he submitted a response to  the  LOR  action.
On 12 May 2005, the applicant received a referral OPR for the period  of  13
May 2004 through 12 May 2005.  The OPR included comments that the  applicant
handled frustration poorly, had unsatisfactory performance for over a seven-
month period in the Fitness Improvement Training Program,  willfully  failed
to  apply  for  permission  from  his  commander  to  engage   in   off-duty
employment,  and   willfully   used   federal   government   resources   for
unauthorized purposes.

On 18 May 2005, the applicant received notification of intent  to  file  the
LOR in his Officer Selection Record (OSR) and that he would be removed  from
the lieutenant colonel promotion  list.   On  1  June  2005,  the  applicant
responded to the notification by requesting that the LOR not  be  placed  in
his OSR, or as an alternative, placement of the LOR in his  OSR  be  delayed
until completion of the IG investigation.  On  6  June  2005,  the  approval
authority directed the applicant’s LOR be filed in his OSR.

On 12 September 2005, following an  AETC/IGQ  Reprisal  Compliant  Analysis,
SAF/IGQ determined the applicant’s request for a reprisal investigation  was
not warranted.  On 1 November  2005,  OSD/IG  concurred  with  SAF/IGQ  that
further investigation was not warranted under Title 10, United States  Code,
Section 1034, and considered the matter closed.

On  15  December  2005,  the  Secretary  of  the  Air  Force  directed   the
applicant’s name be removed from the officers selected for promotion by  the
CY04B lieutenant colonel CSB.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPP recommends the applicant’s request to void his OPR closing 12  May
2005 be denied.  DPPP states an evaluation report  is  accurate  as  written
when it becomes a matter of record.  To effectively change  an  OPR,  it  is
necessary to hear from all members of  the  rating  chain  –  not  only  for
support, but also for clarification/explanation.  The applicant  has  failed
to provide any information/support from the rating chain  on  the  contested
performance  report.   In  the  absence  of  information  from   evaluators,
official substantiation of  error  or  injustice  from  the  IG  or  MEO  is
appropriate, but not  provided  in  this  case.   It  appears  the  OPR  was
accomplished in direct accordance with applicable regulations.

The DPPP evaluation is at Exhibit C.

AFPC/DPPPO recommends denying the applicant’s request for  reinstatement  of
his promotion to lieutenant colonel.  DPPPO  states  AFI  36-2501  indicates
commanders question promotion when the preponderance of evidence  shows  the
officer is not mentally, physically, morally,  or  professionally  qualified
to perform the duties of the higher grade.  Also,  early  identification  of
the officer and proper  documentation  are  essential  in  taking  promotion
propriety action.  The applicant was provided all  supporting  documentation
and given sufficient opportunity to respond to the removal action  taken  by
his  commander,  and  was  provided  legal  counsel.   The  removal  package
received numerous  legal  reviews  prior  to  the  Secretary  directing  the
removal and it was found to be legally sufficient.

The DPPPO evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provides  a  copy  of  the  commander  directed  investigation
regarding  his  commander’s  racist  remarks.   He  points  out   that   the
investigating officer’s report is opinion based and not factual based.   The
junior officer that alleges solicitation against  him  signed  a  fraudulent
statement.  The junior officer  asked  for  the  information  the  applicant
provided.  The applicant did not solicit him.  The Air University  Commander
withdrew the applicant’s Article 15 once he read the  applicant’s  rebuttal,
and the subsequent LOR he was given does not even mention  the  solicitation
charge.  He does not understand why the investigator stated he  didn’t  have
the opportunity for follow-up questions because the applicant did  not  take
leave and was always available.

When he asked for a copy of the MEO complaint investigation,  he  discovered
the investigator indicated the applicant and junior  officer  did  not  know
the supervisor well enough and were not comfortable  with  the  supervisor’s
style.  There was never any sensitivity training  or  teambuilding  progress
made, although it was promised.  His supervisor  was  permitted  to  reprise
against him for filing the MEO complaint.

The applicant’s rebuttal, with attachments, is at Exhibit F.

_________________________________________________________________

ADDITIONAL INFORMATION PROVIDED FOR THE BOARD’S CONSIDERATION:

A copy of the staff package concerning  the  applicant’s  removal  from  the
CY04B    promotion     list     was     provided     for     the     Board’s
information/consideration.

_________________________________________________________________

APPLICANT'S REVIEW  OF  ADDITIONAL  INFORMATION  PROVIDED  FOR  THE  BOARD’S
CONSIDERATION:

In his additional rebuttal, dated 18 December 2006, the  applicant  provides
a  statement  from  his  current  supervisor  stating  that  based  on   the
applicant’s performance; the supervisor has removed the applicant’s  LOR/UIF
in December 2006 (six months early).  The applicant states that  as  far  as
his medical profile was  concerned,  he  was  never  asked  or  directed  to
establish a medical profile.  In addition, he provides  evidence  of  having
two surgeries on his left ankle and a subsequent recuperation period  during
the timeframe in question.  The  medical  documentation  he  submitted  came
from certified medical providers authorized  by  the  Air  Force  since  the
nearest Air Force Base was 75 miles away.  He followed the rules of  Tricare
Remote with  no  questions  asked.   His  supervisor  did  not  ask  him  to
establish a medical profile from military doctors.

In regard to the allegation of solicitation, the  applicant  states  he  was
never charged, accused, disciplined, or punished  for  soliciting  a  junior
officer.  The applicant also provides  a  statement  from  an  enlisted  co-
worker while he  worked  at  the  AFROTC  detachment  attesting  to  blatant
discrimination against the applicant by his supervisor.

The applicant’s rebuttal, with attachments, is at Exhibit G.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or injustice.  The applicant has alleged  reprisal  based
on consequences suffered by his immediate rater after an  MEO  complaint  he
filed against him was substantiated.  The  applicant’s  claim  of  reprisal,
however, was not substantiated by the IG largely due to the  fact  that  the
adverse actions taken against him were not  carried  out  by  his  immediate
rater, the person he alleges reprised against him.  While that  may  be  so,
we believe it is only because the applicant’s immediate  rater  was  limited
primarily to the role of a recommending official  owing  to  his  grade  and
that of the applicant.  Disciplinary actions involving officers,  especially
one of field grade rank, can only be carried out by commanders of a  certain
grade and level.  It does not preclude the deck from being  stacked  at  the
inception of such actions.

4.  The Board is keenly aware that a Commander Directed Investigation  (CDI)
substantiated the allegations for which the applicant was removed  from  the
promotion  list,  i.e.,  dereliction  of  duty  by  engaging   in   off-duty
employment  without  approval,  dereliction  for  using  federal  government
resources for unauthorized purposes, and, supposedly  excluded,  failure  of
the Air Force physical fitness test (PFT) three times.  These  actions  that
eventually led to the applicant’s  removal  from  the  promotion  list  were
initiated subsequent  to  the  filing  of  the  MEO  complaint  against  his
supervisor.  We note the information in file supports a conclusion that  the
CDI was directed only after the applicant’s rater was made aware of the  MEO
complaint by the applicant’s additional rater.  We also note  that  when  it
was suspected the applicant was involved  in  these  prohibited  activities,
both the security personnel and office of special investigation declined  to
investigate and it was then decided to have the  college  computer  security
monitor the applicant’s computer activity, which led to the  conclusion  the
applicant  was  engaging  in  off-duty  employment  without  permission  and
improperly using government resources, activity labeled as criminal  in  one
of the legal reviews.   We  question  why  the  applicant’s  rater  did  not
question the applicant about the activity and  put  him  on  notice  it  was
improper.  It appears there was more interest in  building  a  case  against
the applicant rather than correcting his behavior.   The  Board  also  notes
the  rationale  provided  in  defense  of  the  applicant  by   a   computer
specialist.  The information in file does not adequately  address  or  rebut
the  computer  information  issues  raised  by  the  defense.    While   not
conclusive, it does create enough doubt to question whether  such  a  severe
action should be based on the allegation regarding the computer usage.

5.   The CDI also  concluded  the  applicant  “likely”  solicited  a  junior
officer by attempting to sell him a product.  We examined the  testimony  of
the junior officer, and noted the amount of time  that  passed  between  the
alleged solicitation and the officer’s testimony thereto.  In the  CDI,  the
Inquiry Officer states that he found the junior  officer’s  account  of  the
solicitation more credible  than  the  defense  offered  by  the  applicant.
However, since there was no independent verification, it essentially  leaves
the issue unresolved.  The Board questions why, if the junior  officer  knew
the applicant’s actions were improper, why he did  not  report  it  when  it
occurred.  According to the CDI investigator’s  notes,  the  junior  officer
was questioned about the  long  lag  time  in  reporting  the  inappropriate
contact.  He responded that  he  knew  he  had  to  report  this  after  the
workplace  became  an  uncomfortable  environment.   This   allegation   was
submitted directly after the visit of the additional  rater  where  the  MEO
complaint against the  applicant’s  rater  was  made  public  to  the  staff
through  questioning.   The  delay  raises  doubt  regarding  the  officer’s
credibility.  The Board further notes that after it was  decided  to  punish
the applicant under Article 15, it was  later  determined  that  Article  15
punishment was not appropriate  and  the  applicant  received  a  letter  of
reprimand.   Although,  it  was  not  fully  revealed  why   the   commander
determined that an Article  15  was  not  appropriate,  one  would  normally
assume that a letter of  reprimand  is  considered  a  less  severe  action.
Consequently, why did the applicant’s actions subsequently lead  to  removal
from the promotion list?

6.  The Board notes that several of the legal reviews  discuss  issues  that
were determined should not be factored into whether  or  not  the  applicant
should be removed from the promotion list, i.e., the applicant’s failure  to
pay his  government  credit  card,  missed  appointments,  substandard  duty
performance, an unsigned performance feedback worksheet, and  PFT  failures.
In fact, the AETC vice commander submitted a signed statement indicating  he
did not consider these “allegations” in making  his  recommendation  to  the
SECAF.  However, the Board believes that the  inclusion  and  discussion  of
these “allegations” creates an element of doubt regarding  the  weight  they
were given in the final actions taken.   The  Board  also  notes  additional
doubt is reflected in the comments made  by  AF/DPPP  in  their  review  and
coordination of the staff package by stating “…have coordinated on  package,
but not sure we are convinced this is appropriate action.   Boss  has  asked
for a couple more pieces of information.”

7.   Finally, the Board notes the final decision  to  remove  the  applicant
from the lieutenant colonel promotion list was made by the Secretary of  the
Air Force (SECAF) and that  prior  to  reaching  him  for  a  determination,
several legal reviews  found  the  recommended  action  legally  sufficient.
However, even assuming arguendo that action to  remove  the  applicant  from
the  promotion  list  was  technically  legally  sufficient,  based  on  the
totality of the evidence against the applicant, the Board also believes  the
punishment was unduly harsh and; therefore, unjust.   Therefore,  the  Board
recommends the applicant’s records be corrected as indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that:

      a. The Field Grade Officer Performance Report, AF IMT  707A,  rendered
for the period 13 May 2004 through 12 May 2006 be declared void and  removed
from his records.

      b. His LOR be removed from his Officer Selection folder and file.

      c. His name was not removed by the Secretary of  the  Air  Force  from
the list of officers selected for promotion by the CY04B Lieutenant  Colonel
Selection Board and he was promoted to the grade of lieutenant colonel  with
a promotion service date and promotion effective date of 1 July 2005.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 21 November 2006 and 10 January 2007,  under  the  provisions  of
AFI 36-2603:

            Mr. Michael J. Novel, Panel Chair
            Ms. Patricia R. Collins, Member
            Ms. Terri G. Spoutz, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence for AFBCMR Docket Number BC-2006-01883 was considered:

      Exhibit A.  DD Form 149, dated 17 Jun 06, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPPP, dated 31 Jul 06.
      Exhibit D.  Letter, AFPC/DPPPO, dated 6 Sep 06.
      Exhibit E.  Letter, SAF/MRBR, dated 15 Sep 06.
      Exhibit F.  Applicant’s Rebuttal, dated 25 Oct 06, w/atchs.
      Exhibit G.  Applicant’s Rebuttal, d ated 18 Dec 06, w/atchs.




                                                   MICHAEL J. NOVEL
                                                   Panel Chair


AFBCMR BC-2006-01883


MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:


      The pertinent military records of the Department of the Air Force
relating to XXXXXXXXXXXXXXXXXXXXXXXXXX, be corrected to show that:

           a. The Field Grade Officer Performance Report, AF Form 707A,
rendered for the period 13 May 2004 through 12 May 2005 be, and hereby is,
declared void and removed from his records.


           b. The Letter of Reprimand (LOR), dated 27 April 2005, be
removed from his Officer Selection folder and file.


      It is further directed that he be considered for promotion to the
grade of lieutenant colonel by Special Selection Board for the Calendar
Year 2006A (CY06A) Lieutenant Colonel Central Selection Board, and for any
subsequent board for which the OPR closing 12 May 2005 and the LOR, dated
27 April 2005, were a matter of record.




                                                       JOE G. LINEBERGER
                                                       Director
                                                       Air Force Review
                 Boards Agency