RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-00553
INDEX NUMBER: 111.01; 134.01
XXXXXXX COUNSEL: James L. Stanton
HEARING DESIRED: Yes
MANDATORY CASE COMPLETION DATE: 21 Aug 08
_________________________________________________________________
APPLICANT REQUESTS THAT:
The Officer Performance Report (OPR), rendered on him for the period
12 Jun 02 through 11 Jun 03, be declared void and removed from his
records.
The letter of reprimand issued to him, dated 21 Feb 03, be declared
void and removed from his record.
The Unfavorable Information File (UIF) created on him as a result of
the LOR be rescinded.
All Air Force official records related to the contested OPR, LOR, and
UIF be changed and/or purged from his records.
_________________________________________________________________
APPLICANT CONTENDS THAT:
In a 39-page Brief of Counsel, with 25 attachments, applicant makes
the following contentions:
a. It was a violation of AFI 36-2406, Paragraph 3.7.6 for the
rater to include comments and make ratings on a matter which occurred
in a previous reporting period and was known and acted on by
applicant’s previous rater. Counsel states that the rater made the
comment in the referral OPR, “I removed [applicant] from command
following the results of a Command Directed Inquiry (CDI) which
substantiated allegations of abusive treatment toward his subordinates
and unprofessional conduct.” Counsel further states that the one-time
event in which the applicant chastised members of his staff occurred
four months, around Mar 02, before the beginning of the rating period
on the referral report and even if the event warranted lower ratings,
it should have been done by the applicant’s previous rater. Counsel
opines that in writing the OPR for the period this event occurred, the
rater “obviously looked” at the applicant’s total accomplishments for
that rating period, including his supervisory abilities, as evidenced
by comments in the OPR for that period. While the rater on the
contested OPR did not specifically cite the earlier event, it is clear
from a memo the rater of the contested report wrote on 12 Dec 02,
that it was the only factual basis he had for making the comments
about the applicant. Counsel also notes that the rater also referred
to the incident in another memorandum on 19 Feb 03.
b. The rater wrongfully failed to conduct “feedback” sessions
with the applicant as required by AFI 36-2406, Paragraph 2.3,
particularly if the rater had any intention of mentioning such matters
as an adverse comment against the applicant in his next OPR. Counsel
states the applicant requested feedback in Oct 02, but was refused.
Counsel notes that feedback is required to be provided within 30 days
of a request, but the applicant’s OPR shows feedback as having been
accomplished on 5 Dec 02, which is clearly more than 30 days after
receipt of a request for feedback by the rater. Counsel states that
the “purported feedback” the rater claims to have given on 5 Dec 02
was not in accordance with the mandate of AFI 36-2406 because it was,
in actuality, a one-sided “chewing out” given while enroute to the
airport and when the applicant attempted to refute the comments he was
told to “shut-up and listen... don’t get defensive.”
c. The rater wrongfully failed to specify any instances of
behavior which justify the adverse comments and/or ratings in the OPR
as required by AFI 36-2406, Paragraph 3.6.1. Counsel points out that
for a referral report, AFI 36-2406 requires the evaluator to
specifically detail the behavior or performance that caused the report
to be referred. The rater made two derogatory statements, one in
Section IV, “Impact on Mission Accomplishment,” stating “...
unprofessional conduct during the rating period seriously impacted his
unit’s morale and the development of his subordinates” and in Section
VI, Rater Overall Assessment,” stating, “I removed [applicant] from
command following the results of a Commander directed Inquiry (CDI)
which substantiated allegations of abusive treatment toward his
subordinates and unprofessional conduct.” No where in the OPR did the
rater cite any instance of unprofessional behavior during the rating
period or cite any specific examples of abusive treatment. Rather,
the rater in the chewing-out on the way to the airport clearly refers
to the “basement incident” that occurred four months prior to his
arrival as applicant’s rater. None of the alleged complaints by staff
members during the many inquiries cite examples of unprofessional
conduct or abusive treatment by the applicant toward his subordinates.
Most comments refer to the “basement incident” or other matters that
occurred before Jun 02 or relate to relatively minor administrative
complaints. Counsel provides a list of the main questions asked of
the applicant during the CDI to show they primarily dealt with matters
that mostly occurred early in the applicant’s assignment. Counsel
notes that there appear to be few, if any, questions about
“unprofessional conduct” or “abusive treatment” by the applicant
although the referral OPR contains a statement that abusive treatment
toward his subordinates was substantiated. Counsel further notes that
the applicant gave his statement to the CDI investigator on 20 Feb 03
and was issued the LOR and removed from command the very next day,
even though it appears the CDI was not complete. Counsel opines that
this quick action by the rater demonstrates he already knew and/or had
decided what he was going to do to the applicant and only had a CDI
conducted to provide rationale for the removal and reprimand. Counsel
also asserts that in reviewing the statements of many of the
applicant’s subordinates included in the CDI, it appears the
applicant’s alleged behavior in Feb 02 toward his subordinates only
affected a few and had satisfactorily improved and was not repeated
during the period of observation by his rater on the contested OPR.
Finally, counsel cites examples of the content of the statements and
contends that the statements support their view that applicant’s
performance and treatment of his subordinates met Air Force standards.
d. The LOR the applicant received was improper because it
cited as its basis conduct which clearly occurred in a previous
reporting period, cited vague and nonspecific allegations not
supported by the facts, and had been addressed by the applicant’s
previous commander. Counsel discusses the content of the LOR
paragraph by paragraph and provides his analysis of why the LOR was
improper and legally insufficient.
e. The applicant and his rater had a personality clash, which
was the principal basis for the LOR the applicant received, the
applicant’s removal from command, and the referral OPR. Counsel
states it is evident from the facts that the rater did not like the
applicant. Counsel cites the numerous times the applicant was berated
over the phone and also the chewing-out incident in the car. Counsel
discusses the relationship the applicant and rater had prior to the
rater assuming his command and supervision of the applicant and how it
changed. The applicant, to date, states he is unclear why the
relationship changed. Counsel notes the applicant’s synopsis of the
mission-related accomplishments by him, or under his command, during
the period of the rater’s observation from Jun 02 to Jun 03. Counsel
notes that none of the accomplishments mentioned by the applicant were
mentioned in the referral OPR. Counsel also notes the positive
comments made regarding the applicant’s performance by his previous
rater, which occurred during the period of the “basement incident.”
Counsel references a statement from a retired Office of Special
Investigations (OSI) agent that he states demonstrates the same type
of treatment by the rater toward another Air Force member.
f. The applicant was a victim of insubordination and
inappropriate, inaccurate, and deceitful information intentionally
provided to his rater by several deceitful and untrustworthy
subordinates who contemporaneously misled the applicant by professing
to him there was no morale problem in his unit. Counsel discusses he
and the applicant’s belief that the source of the problems the
applicant had with his rater stemmed from actions undertaken by the
applicant’s superintendent. Counsel notes that most of the questions
asked of the applicant during the three-hour interrogation for the CDI
came from information provided to the investigator by the applicant’s
superintendent and one other special agent. Counsel discusses a
statement provided by a special agent that worked directly for the
superintendent that shed light on the character of the superintendent
and states the superintendent was very “dishonest, deceitful,
untrustworthy and a manipulator.” It is the applicant’s contention
that his superintendent not only misled him but also manipulated
individuals working for his rater.
Counsel points out the rater had the authority to remove the applicant
from his position as commander of the OSI Detachment if he had lost
confidence in his ability to lead. However, in rendering the referral
OPR, the rater had to comply with the applicable Air Force Instruction
(AFI). Counsel states it is their contention the rater did not have
sufficient justification for giving the applicant a referral OPR in
accordance with the AFI.
Examiner’s Note: Applicant’s counsel confirmed via email that
Attachment 3, Statement by Applicant, dated 11 Nov 2005 should reflect
a date of 19 Jan 07.
The applicant’s complete submission, with attachments, is at Exhibit
A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant is presently serving on active duty in the grade of
lieutenant colonel. A review of his 10 most recent OPRS reflects
overall ratings of “meets standard” except for the contested referral
report rendered for the period 12 Jun 02 through 11 Jun 03. The
applicant’s appeal to the Evaluation Reports Appeal Board was denied
on 13 Apr 06.
_________________________________________________________________
AIR FORCE EVALUATIONS:
AFPC/DPSO recommends denial of the applicant’s request to void the LOR
dated 21 Feb 03 and to remove the UIF. After reviewing the
applicant’s request, they concur that the pattern of behavior cited in
the LOR occurred and conclude there was no error or injustice caused
by the Air Force in this case.
The complete evaluation is at Exhibit C.
AFPC/DPPPEP recommends denial of the applicant’s request to void the
OPR rendered on him for the period 12 Jun 02 through 11 Jun 03. Among
their rationale for this recommendation are the following:
a. Regarding the applicant’s contention that it was a
violation of AFI 36-2406, Paragraph 3.7.6 for the rater to include
comments and make ratings on a matter which occurred in a previous
reporting period, DPPPEP notes that the CDI was conducted and the
results released during the period of the contested report. The
applicant is under the mistaken impression that if the unacceptable
behavior happened and was not reported during that timeframe in which
it occurred it could not be commented on later in a following report.
DPPPEP further notes that the latter part of AFI 36-2406, Paragraph
3.7.6 clearly states “For example, an event (positive or negative)
which came to light after a report became a matter of record, but
which occurred during the period of that report, could be mentioned in
the ratee’s next report because the incident was not previously
reported. In rare cases, serious offenses (such as those punishable
by court martial) may not come to light or be substantiated for
several years. In those cases, inclusion of that information may be
appropriate even though the incident/behavior occurred prior to the
last reporting period. Additionally, negative incidents from a
previous reporting period involving the character, conduct, or
integrity of the ratee that continue to influence the performance or
utilization of the ratee may be commented on in that context only.
b. DPPPEP notes that while Air Force policy requires
performance feedback, a direct correlation between information
provided during feedback and the assessments on performance reports
does not necessarily exist. Also, the lack of counseling and
feedback, by itself, is not sufficient to challenge the accuracy of a
report. DPPPEP states that while the applicant argues he did not
receive feedback, they note that a memorandum for record (MFR) signed
by the rater documents the applicant received face to face feedback on
5 Dec 02 and that the “basement incident” was discussed as an example
of applicant’s behavior.
c. Regarding applicant’s contention “The rater wrongfully
failed to specify any instances of behavior which justify the adverse
comments and/or ratings in the OPR as required by AFI 36-2406,
Paragraph 3.6.1,” DPPPEP states that the rater’s comments are in
direct compliance with Paragraph 3.9, Referral Report Procedures.
d. DPPPEP states the applicant has not provided any
statements from his rating chain nor official documentation to prove a
personality conflict existed between him and the rater. The applicant
has not provided specific instances based on first-hand observation
which substantiate the relationship between him and his rater was
strained to the point an objective evaluation was impossible. Nor has
the applicant submitted a report from either an IG or Military Equal
Opportunity Office documenting a personality conflict.
DPPPEP discusses other reasons in accordance with AFI 36-2406 why they
believe the applicant’s referral OPR is an accurate report.
The complete evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant’s counsel responded to the Air Force evaluation in a 15-page
brief of counsel with two attachments. Counsel states they disagree
with the recommendation to deny the applicant’s overall appeal.
Counsel references evidence in their original submission and provides
additional discussion as to why they disagree with both AFPC/DPSO’s
recommendation to deny voiding the LOR issued to the applicant and
AFPC/DPPEP’s recommendation to deny voiding the OPR. Owing to the
brevity of DPSO’s advisory, counsel’s comments regarding the LOR were
primarily a reiteration of the original evidence provided on this
matter. However, counsel provided more in-depth discussion regarding
DPPPEP’s recommendation to deny voiding the contested OPR. A synopsis
of some of the key comments provided by counsel follows:
a. Counsel discusses the Commander Directed Inquiry (CDI) and
reviews the events and circumstances leading to the applicant’s
problems. Counsel states that the applicant’s rater ignored inputs
regarding the applicant from the report prepared by a special agent
sent to the applicant’s unit for a “pre-IG Reverse Staff Assistance
Visit” (RSAV) and to check morale. Counsel opines that it is their
position that had the applicant’s rater just wanted to remove the
applicant from his position, he could have taken the recommendation
from the special agent conducting the RSAV to remove the applicant
without hurting his career. It appears to counsel that by directing a
CDI, the rater was “hell-bent” on sabotaging the applicant’s career
any way he could.
b. Counsel indicates they are confused regarding the
statement “The applicant is under the impression that if the
unacceptable behavior happened and was not reported during that time
frame of which it occurred it could not later be commented on a
following report.” Counsel states their position is just the
opposite. Their position is that the alleged “unacceptable behavior”
not only occurred four months before the rater’s observation began
but, equally important, applicant’s previous rater knew about it and
took action against the applicant. The previous rater specifically
confirmed his knowledge of the incident in his own written statement,
dated 12 Feb 03, wherein he states, “Although I did not believe any
formal written counseling or disciplinary action was warranted at that
time, I did verbally express my expectation that he needed to work at
his team building skills. I remember telling him that I thought he
had accomplished a lot more than his predecessor while in command of
the __FIS and did not want a lapse in his attention to his
interpersonal skills to detract from his success as a commander.”
c. Counsel responds to the statement, “... negative incidents
from previous reporting periods involving the character, conduct, or
integrity of the ratee that continues to influence the performance or
utilization of the ratee may be commented upon in that context only.”
...”The member’s behavior was previously known, however the
allegations were not substantiated by a Commader (sic) Directed
Investigation (CDI) until sometime after Feb 03.” Counsel states that
regardless of how the “basement incident” is categorized, it is clear
from the facts that there is not any instance of such behavior during
the reporting period of the rater from 12 Jun 02 through 11 Jun 03.
d. Counsel indicates they disagree with the comments made
addressing the issue of feedback that “Only members in the rating
chain can confirm if counseling was provided. While current Air Force
policy requires performance feedback for personnel, a direct
correlation between information provided during feedback sessions and
the assessments on evaluation reports does not necessarily exist. ...
There may be occasions when feedback was not provided during a
reporting period. Lack of counseling or feedback, by it self is not
sufficient to challenge the accuracy or unjustness of a report.
Evaluators must confirm they did not provide counseling or feedback,
and that this directly resulted in an unfair evaluation.” Counsel
points out that AFI36-2406, paragraph 2.3, states “Feedback is
mandatory for all officers, second lieutenant through colonel ...
.”Counsel states they do not agree that only members in the rating
chain can confirm if counseling was provided. Counsel also notes that
the advisory writer failed to cite any authority for the statement,
“Lack of counseling or feedback, by itself, is not sufficient to
challenge the accuracy or justness of a report.” Counsel opines it is
beyond belief that if the feedback requirement was ignored, the same
evaluator is going to come forth and acknowledge that he or she wrote
an “unfair evaluation.”
e. Regarding the assertion the applicant received a face to
face feedback on 5 Dec 02, counsel states this entire matter was
addressed on pages 12, 13, and 14 of the application. Counsel
reiterates that the only time the rater said something to the
applicant about his performance was while applicant was driving the
rater to the airport after a staff assistance visit.
f. Counsel indicates they are baffled by the statement,
“Finally, every officer knows the existing standards of inappropriate
behavior, disobeying a superior commissioned officer, cruelty and
maltreatment and actions unbecoming an officer and gentlemen (sic).”
During the entire paragraph where this statement was included, the
writer had been discussing “feedback.” If the writer intended by
their statement that “if every officer knows this, then they don’t
have to be told about it, counsel opines that he does not believe this
is what feedback is about.
Counsel provides comments and in depth discussion on several other
statements made in the advisory opinion. Of note, counsel discusses
the issue of the personality conflict between the applicant and the
rater. In reference to the statement that the applicant failed to
submit a report from either the IG or Military Equal Opportunity
office documenting a personality conflict, counsel opines that
personality clashes can be recognized sometimes better from hindsight
rather than at the time it is occurring because impartial persons will
then have an opportunity to evaluate the actions of both persons in a
totally objective manner. Counsel references a statement provided by
a current co-worker of applicant that discusses an attack of the
applicant by the rater.
Counsel’s complete response to the Air Force evaluations, with
attachments, is at Exhibit F.
_________________________________________________________________
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 find insufficient evidence to substantiate that the
applicant is the victim of an error or injustice. The central point
of counsel’s argument, as we understand it, is that the applicant’s
alleged misconduct, referred to as the “basement incident,” giving
rise to the actions contested in this appeal did not actually occur
during the period of supervision of the initiating commander and, in
fact, the actual commander of record at the time had considered the
incident and taken what he deemed appropriate action, negating the
need or appropriateness of any further action for the offense.
Consequently, counsel concludes that the successor commander’s actions
were arbitrary and capricious and were the result of a personality
conflict between the applicant and the commander. In his argument,
counsel notes that the commander at the time of the applicant’s
alleged misconduct wrote in his statement for the CDI that he did not
believe any formal written counseling or disciplinary action was
warranted at the time for the incident involving the applicant and his
subordinates. Counsel notes that this commander also did not make any
derogatory remarks or lower any ratings on an OPR subsequently
rendered on the applicant that covered the period of the incident.
However, we note that in the commander’s CDI statement, the commander
notes additional incidents involving the applicant beyond the
“basement incident” referred to so prominently by counsel and that
although the commander did not see a need for actions such as a
commander directed mental health evaluation at the time, as he
understood the situation involving the applicant at the time of his
statement, “a number of more serious indicators have surfaced which
definitely seem to warrant more aggressive action.” The prior
commander even expressed his regret he did not foresee a “year ago”
the need to get the applicant help. We also note that although the
letter of reprimand (LOR) issued to the applicant referred to the
“basement incident,” it also addressed issues that appear to have
occurred later during the tenure of the successor commander. We
believe one could read the LOR as covering several incidents of
behavior that caused the commander concern. While the style and
manner in which it appears he handled the entire situation involving
the applicant may be debatable, counsel has not presented sufficient
evidence to overcome the presumption of regularity in the conduct of
governmental affairs and has not shown that the commander exceeded his
authority and that his actions were arbitrary and capricious.
Although counsel asserts that Air Force policy was violated in the
rendering of the referral OPR, we agree with the determination and
rationale provided by AFPC/DPPPEP in their advisory opinion that the
OPR did not violate Air Force policy. Therefore, in the absence of
evidence to the contrary, we do not find a basis to grant the
requested relief.
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-2007-
00553 in Executive Session on 21 June 2007 and 24 July 2007, under the
provisions of AFI 36-2603:
Mr. James W. Russell, III, Panel Chair
Mr. Elwood C. Lewis, III, Member
Ms. Sharon B. Seymour, Member
The following documentary evidence was considered for Docket Number BC-
2007-00553:
Exhibit A. DD Form 149, dated 16 Feb 07, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPSO, dated 26 Mar 07.
Exhibit D. Memorandum, AFPC/DPPPEP, dated 19 Apr 07
Exhibit E. Letter, SAF/MRBR, dated 27 Apr 07.
Exhibit F. Letter, Counsel, dated 25 May 07.
Exhibit G. Letter, Counsel, dated 26 May 07
JAMES W. RUSSELL, III
Panel Chair
AIR FORCE BOARD FOR CORRECTION
OF MILITARY RECORDS
CASE TRANSMITTAL / COORDINATION RECORD
IN THE MATTER OF: DOCKET NO:
XXXXXXX BC-2007-00553
ROUTE IN TURN INITIALS DATE
1. CHIEF EXAMINER ________ _______
(Coordination)
2. EXECUTIVE DIRECTOR ________ _______
(Coord/Signature)
3. RETURN TO EXAMINER TO E-MAIL/FAX
TO PANEL CHAIR
4. Mr. James W. Russell, III ________ _______
PANEL CHAIR
(Signature on Proceedings)
5. EXAMINER
6. AFBCMR (Processing)
ALGIE WALKER, JR.
Examiner
Air Force Board for Correction
of Military Records
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