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the LOR be rescinded.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