RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-00825
                                             INDEX CODE:  111.01, 131.01
      XXXXXXXXXX                        COUNSEL:  NONE

                                             HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

The Promotion Recommendation Form  (PRF)  for  the  PO605A  Colonel  Central
Selection Board (CSB) be invalidated, and his record  be  reevaluated  by  a
Special  Selection  Board  (SSB)  to  review  his  entire  career  for   the
performance period being rated.

The SSB review his  record  and  only  review  Officer  Performance  Reports
(OPRs) that closed out prior to the original board date; the last  OPR  that
should be considered closed out on 6 April 2005.

If the requested relief is granted, he be  allowed  to  continue  on  active
duty until the SSB results are released.

________________________________________________________________

APPLICANT CONTENDS THAT:

The PRF considered by the PO605A Colonel  CSB  was  not  completed  IAW  Air
Force Instruction (AFI) 36-2406, table 8.1, line 12, which clearly  outlines
“this section covers the entire  record  of  performance  and  provides  key
performance factors from  the  officer’s  entire  career,  not  just  recent
performance.”  The PRF he received from his senior rater only documents  one
alleged incident that was not supported in his record.

An extension to the close-out date  of  an  OPR  must  be  requested  if  an
incident  “that  is  of  such  a  serious  significance”  occurs   after   a
performance report closes and the time it becomes a matter  or  record.   If
the incident was serious enough to be commented on  in  his  PRF,  his  Wing
Commander should have extended the close-out  date  of  his  OPR  closing  6
April 2005, and this was not done.

It was inappropriate for his  evaluator  to  consider  and  comment  on  the
Command Directed Investigation (CDI) results within his PRF, let alone  make
it the sole comment on the form.  He did not attribute a time period to  the
information he used in the PRF, and did not cite where the information  came
from.  The only negative item in his record is his 15 March 2006 OPR,  which
was not included in his record at the time the PRF  was  prepared,  or  when
his 12 September 2005 Colonel CSB convened.

Information about  alleged  “abuse”  or  a  “hostile”  work  environment  is
irrelevant; there was no negative documentation of any kind  in  his  record
during this time period.  To date,  he  has  not  received  any  counseling,
admonishment, reprimand, or had non-judicial punishment.  He has  never  had
an Unfavorable Information File (UIF) or been placed on the Control  Roster.
 No documentation has ever  been  placed  in  his  Officer  Selection  Brief
(OSB), and the comments on his PRF are unjust,  irrelevant,  and  should  be
removed.

His OPR closing 6 April 2005 would have been  the  top  report  during  this
time frame.  The report  covers  the  entire  time  period  of  the  alleged
inappropriate behavior and there is no mention of any  problems;  thus,  the
negative remarks included in his PRF should be removed.  He has  never  been
counseled about  any  sub-par  performance,  been  instructed  as  to  which
behaviors he needs to  modify  or  cease,  been  directed  to  go  to  anger
management training or seek a mental health evaluation, told  he  could  not
supervise again, nor has any feedback been given to enable  him  to  improve
and correct any supposed deficiencies.  The only action taken was  that  his
Wing Commander removed  him  as  the  Mission  Support  Group  (MSG)  Deputy
Commander which, at the time, he thought was being done to remove  him  from
the work place of the person who had  an  alleged  problem  with  him.   The
informality in the way his reassignment was handled did not  seem  to  be  a
career-ender at any time, and he  was  awarded  an  Air  Force  Commendation
Medal (AFCM), dated 16 July 2005, for a special  project  he  worked  during
the same  period  as  the  alleged  inappropriate  behavior.   The  lack  of
documented poor performance or behavior, coupled  with  the  informality  of
his reassignment, led him to believe he was reassigned  to  keep  the  peace
and not as punishment.

His due process rights were violated.  He was not  provided  an  opportunity
to review or comment on the findings and recommendations of  the  CDI  prior
to the completion of his PRF  and  the  CSB  start  date,  and  he  was  not
provided a copy of the CDI until 29 November 2006.  This delay  resulted  in
his  hands  being  tied  by  a  lack  of  information,  prevented  him  from
presenting a rebuttal or defense prior to  board  convening,  and  prevented
him from sending a memorandum providing his side of the  story  to  the  CSB
prior to the board convening date.  Additionally, the resulting  information
provided in the CDI concerning his portion of the  testimony  is  incomplete
and, in some  instances,  inaccurate.   The  one-sided  report  led  to  his
removal as the  MSG  Deputy  Commander,  and  directly  contributed  to  the
incorrectly completed PRF considered by the CSB.

On 22 August 2005, he contacted his senior rater and outlined  his  concerns
with the PRF.  He did not hear anything from his senior rater prior  to  the
12 September 2005 CSB, and, given that he was unaware of the status  of  his
concerns, he could not properly and fully  address  the  CSB  prior  to  the
Board convening date.

Since  CSBs  operate  under  the  assumption  that  evaluation  reports  are
accurate and objective, the OPRs and medals he received  during  his  career
should have been used to  complete  the  PRF  and  give  an  overall  career
encapsulation of his achievements, vice a single alleged  “event”  that  was
not documented in his record, or for which he was not punished.

In support of his appeal, he has submitted copies of a  personal  statement,
the PRF considered by the PO605A Colonel CSB, AFI 36-2406,  Table  8.1,  his
OPR closing 6 April 2005, his SERB Letter, dated 15 February 2007, his  ERAB
results e-mail from AFPC/DPPPE, AFI 36-2406,  paragraph  3.7,  AFI  36-2406,
paragraph 1.3, his Air Force Commendation Medal for  the  period  1 December
2004 – 30 May 2005, a HQ AMC FOIA appeal approved letter for the CDI, an  e-
mail to  18AF/CC  outlining  concerns  with  his  PRF,  an  e-mail  delivery
confirmation, a draft PRF prepared  in  early  May  2005,  his  OPR  closing
6 April 2004, a PRF prepared for his BTZ consideration by  the  P0604A  CSB,
his OPR closing 6 April 2003, and his  Meritorious  Service  Medal  for  the
period 21 June 2001 – 27 May 2004.

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant has two non-selections for promotion to the grade  of  colonel
by the CY05A (12 September 2005) (PO605A), and CY06A (15 May 2006)  (PO606A)
Colonel CSBs.

He filed an appeal with the Evaluation Reports  Appeal  Board  (ERAB).   The
ERAB considered his application, and denied the requested  relief  in  April
2006.

The applicant was selected by the January 2007  Selective  Early  Retirement
Board (SERB) to be involuntarily retired, effective 1 September 2007.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPEP recommends denial to void the PRF that met  the  PO605A  Colonel
CSB, and SSB consideration by that board.

Applicant states the PRF submitted to the promotion board was not  completed
IAW AFI 36-2406, table 8.1,  line  12.   This  reference  states,  in  part,
“Explain why the officer should or should not  be  promoted.   This  section
covers the  entire  record  of  performance  and  provides  key  performance
factors from the officer’s entire career, not just recent performance.”   He
received a “Do Not Promote This Board” (DNP) recommendation from his  senior
rater.  AFI 36-2406, paragraph  8.1.2.3.3  states  “A  “DNP”  recommendation
means the ratee does not warrant promotion and should  not  be  promoted  by
the CSB for which the  officer  is  eligible.   A  senior  rater  must  make
comments, explaining to the CSB why the officer  should  not  be  promoted.”
The comment “Member removed from leadership position for creating a  hostile
and  abusive  work  environment;   using   demeaning,   inappropriate,   and
unprofessional  language  and  conduct  toward  subordinates   on   multiple
occasions” meets the criteria for a  “DNP”  promotion  recommendation  form,
and the senior rater prepared the PRF in direct compliance with the  current
regulation.

He states “If this incident was serious enough to  be  commented  on  in  my
PRF, my Wing Commander should have extended the close-out date on my  6  Apr
05 Officer Performance Report (OPR).”  He provided  as  reference  paragraph
3.7.5 from AFI 36-2406 which states, in part, “It is  inappropriate  for  an
evaluator to consider/comment on an event that occurs  after  the  close-out
date.  If an incident or event occurs between  the  time  an  annual  report
closes and the time it becomes a matter or record that is  of  such  serious
significance that inclusion in the report is warranted, an extension of  the
close-out  date  must  be  requested.   This  includes  completion   of   an
investigation begun prior to the close-out date or confirmation of  behavior
that was only alleged as of  the  close-out  date.”   The  OPR  in  question
(close-out date 6 April 2005) became a matter of  record  on  21  May  2005.
The reviewer signed and dated the report on 14 May  2005.   The  report  was
then forwarded to HQ AFPC for filing in his Officer Selection Folder  (OSR).
 The report was completed and made a matter of record on 21 May  2005,  and,
from the information provided by the applicant, this is the  same  date  the
CDI was completed.  Thus, the reference provided is not  valid  because  the
report was made a matter of  record  the  same  day  the  investigation  was
completed.

He states “It was inappropriate for my evaluator to consider and comment  on
the CDI results within my PRF, let alone make it the  sole  comment  on  the
form.”  AFI 36-2406, paragraph 1.3, Adverse Information,  states,  in  part,
“Evaluators are strongly encouraged to comment in performance  reports  (and
the officer’s next PRF) on misconduct that reflects a disregard of the  law,
whether civil law or the Uniform Code of Military Justice  (UCMJ),  or  when
adverse actions such as Article 15, Letters of Reprimand,  Admonishment,  or
Counseling, or placement on the  Control  Roster  have  been  taken.”   When
making the decision to record adverse  information  in  reports,  evaluators
are to consider such factors as the impact of  the  misconduct  on  the  Air
Force mission, the Air Force as an  institution,  its  relationship  to  the
ratee’s duties, the grade, assignment, and  experience  of  the  ratee,  the
number  of  separate  violations  and  frequency  of  the  misconduct,   the
consequences of the misconduct, other dissimilar acts of  misconduct  during
the report period, and the existence  of  unique,  unusual,  or  extenuating
circumstances.”  The evaluator  accurately  commented  on  his  unacceptable
behavior.

He states “Information about any alleged abuse or hostile  work  environment
is irrelevant; there was no negative documentation of any kind in my  record
during this time period.”  It appears his senior rater felt  the  matter  to
be a serious breach of military bearing and discipline for which he  had  to
take direct and responsive action.   The  applicant  was  removed  from  the
MSG/CD position for creating an abusive/offensive work environment, a  point
not in contention, and this impropriety was appropriately reflected  in  his
PRF.  To remove the PRF from  his  record  would  be  unfair  to  all  other
officers who were not removed from duty,  and  effectively  performed  their
duties in an exemplary manner.  Removal of the contested PRF would make  his
record inaccurate.

He states “My 6 Apr 05 OPR covers the entire  time  period  of  the  alleged
inappropriate behavior.”  AFI 36-2406, paragraph  3.7.7,  states,  in  part,
“Raters  should  be  particularly  cautious  about  referring   to   charges
preferred,  investigations,  or  boards  of  inquiry….or  using  information
obtained from those sources, or any similar actions  relating  to  a  member
that is not complete as of the close-out date of  the  report.”   The  rater
could not, with good conviction, mention  any  of  the  allegations  brought
forth during the CDI until the investigation was  closed  and  the  findings
presented to confirm/deny the accusations.  The  applicant  stated  the  CDI
was completed on 21 May 2005, and his OPR closed out on 6 April 2005;  thus,
the rater was not obligated  to  mention  this  information  since  the  OPR
closed-out prior to completion of the investigation.

He received a copy of the contested PRF approximately  30  days  before  the
CSB as required by AFI 36-2406, paragraph 8.1.4.1.7.  Although he  contacted
his senior rater after reviewing the PRF, it was still  the  senior  rater’s
decision as to what to include or not include in  the  PRF.   The  applicant
could  have  written  a  letter  to  the  board  to  further   explain   his
accomplishments or to clarify  statements  reflected  on  the  PRF,  and  he
apparently chose not to do so.  He states he did not receive a copy  of  the
CDI until 29 November 2006, which prevented him from presenting  a  rebuttal
or defense prior to the board  convening.   Written  instructions  accompany
the officer pre-selection brief (OPB) that all  officers  receive  prior  to
being considered by a CSB, and specifically instruct the officer  that  they
are responsible  for  reviewing  their  OPB  for  accuracy  prior  to  board
convening date.  They may address any concerns and discrepancies with  their
military personnel flight and their chain of command, if  necessary.   These
instructions also inform the officer they may correspond by  letter  to  the
board to call attention to any matter of record concerning  them  that  they
believe important to their  consideration.   They  specifically  state  that
“Officers will not be  considered  by  a  Special  Selection  Board  if,  in
exercising reasonable diligence, the  officer  should  have  discovered  the
error or omission in his/her records and diligence, the officer should  have
discovered the error or omission in his/her records  and  could  have  taken
timely corrective action.”  Applicant  had  the  opportunity  to  write  the
board president concerning the PRF; however, he  chose  not  to  do  so  and
therefore his due process rights were not violated in any way.

CSBs evaluate the entire officer record to assess whole person  factors,  to
include job  performance,  professional  qualities,  depth  and  breadth  of
experience, leadership, and academic and  professional  military  education.
While his PRF may not be worded the  way  he  would  like  to  describe  his
accomplishments, the CSB has  his  entire  OSR  that  clearly  outlines  his
accomplishments since the day he came  on  active  duty.   Furthermore,  the
“DNP” promotion recommendation by  the  senior  rater  is  exactly  that,  a
recommendation.  CSB members  are  empanelled  as  an  independent  body  to
factor the  senior  rater’s  recommendation  into  their  assessment  of  an
officer’s record.  If, in their collective evaluation, an officer is  deemed
neither best nor fully qualified for promotion,  the  officer  will  not  be
promoted.

Although he feels the senior rater has over-stressed  an  isolated  incident
or a short period of substandard performance or conduct,  the  senior  rater
is obligated  to  consider  such  incidents,  their  significance,  and  the
frequency with which they  occurred  in  assessing  performance  and  future
promotion potential.  Only the senior  rater  knows  how  much  an  incident
influenced the report.

AFI 36-2401, A1.6.2.1 states, “To void a PRF, you must  provide  substantial
evidence proving the PRF  does  not  contain  a  valid  promotion  potential
assessment, and that it is not possible to correct the form.”  The fact  the
rater  is  unwilling  to  provide  additional  documentation  regarding  the
contested report shows he obviously, with a  clear  conscience,  rendered  a
report he considers accurate,  and  the  applicant  has  failed  to  provide
substantial evidence proving the PRF is inaccurate as written.

The AFPC/DPPPEP evaluation is at Exhibit C.

AFPC/DPPRRP recommends denial of applicant’s request  to  remain  on  active
duty until the AFBCMR decides whether the applicant is entitled  to  an  SSB
and, if the AFBCMR grants an SSB, to remain on active  duty  until  the  SSB
results are released.

The applicant was selected for early retirement under the provisions  of  10
USC, Section 638.  The law allows the Secretary to defer, for not more  than
90  days,  the  retirement  of  an  officer  otherwise  approved  for  early
retirement under this section in order to prevent  a  personal  hardship  to
the officer or for  other  humanitarian  reasons.   The  applicant  has  not
requested deferment of his mandatory retirement  for  personal  hardship  or
humanitarian reasons.

The law provides two other exceptions for continuation  on  active  duty  or
deferment of retirement.  Title 10, United States  Code  (10  USC),  Section
639, allows the Secretary to continue an officer for “any  action  that  has
been commenced against an officer with a view  to  trying  such  officer  by
court-martial…until completion of the action.”  10 USC, Section 640,  allows
the Secretary to defer the retirement “if the  evaluation  of  the  physical
condition of the officer and determination of the officer’s  entitlement  to
retirement…for  physical  disability  require  hospitalization  or   medical
observation that cannot be completed before the date on  which  the  officer
would otherwise be required to retire.”  Applicant has not  been  placed  on
an administrative or a medical  hold  on  his  projected  1  September  2007
retirement date.

The law does  not  state  an  officer  may  be  retained  past  a  mandatory
retirement date to await an AFBCMR decision to meet an SSB, or to await  the
outcome of such  SSB  if  ordered  by  the  AFBCMR.   If  the  applicant  is
permitted to remain on active duty to await the AFBCMR  decision,  it  would
not be equitable to those  members  also  selected  by  the  SERB  for  a  1
September 2007 mandatory  retirement  date.   Similarly,  it  would  not  be
equitable to those members also selected by the SERB for a 1 September  2007
mandatory retirement date to grant applicant an SSB and/or allowing  him  to
remain on active duty to await the  SSB  decision,  which  may  or  may  not
result in selection to  the  next  grade.   If  the  AFBCMR  recommends  his
records meet an SSB and he is selected  for  promotion,  he  may  apply  for
additional relief as a result of those decisions.

The AFPC/ DPPRRP evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The  applicant  contends  that  nowhere  in  his   record   is   there   any
documentation to support the PRF that was written.  The PRF was not  written
IAW AFI 36-2406, table 8.1, line 12, which states “this section  covers  the
entire career, not just recent performance.”  The  review  of  his  case  by
AFPC never answers why an incorrectly prepared PRF was  accepted.   The  PRF
contains information that was not a part of his official record, and he  has
not been punished  or  given  a  chance  to  rebut  this  information.   The
AFPC/DPPPEP representative shows the exact problem clearly in  paragraph  e.
of their 24 April 2007 letter when it is stated “Apparently,  the  applicant
made excuses for his behavior then, and is still convinced  he  did  nothing
wrong.”  It is not for anyone at AFPC to determine if  any  of  his  actions
were improper, but merely to say if the regulations  and  instructions  were
followed, and if the forms were completed  correctly.   This  has  been  his
concern all along – AFPC is tainted and not  being  fair  and  impartial  in
their reviews.

The entire problem stems from  his  Wing  Commander  at  the  time  and  his
superior using the PRF (and subsequent OPRs and SERB  forms)  as  a  way  to
“punish” or correct his alleged bad behavior.  Instead, he should have  been
given the proper documentation in the form of a Letter of Counseling  (LOC),
Letter of Admonishment (LOA), or Letter of Reprimand  (LOR),  if  warranted,
to document the poor performance and provide him  an  opportunity  to  rebut
the allegations and change his behavior as necessary,  and  this  was  never
done.

Nothing was ever put in his OSB or his  official  record  and  he  has  thus
never been allowed to present a rebuttal to senior leaders.  Also,  the  CDI
that was completed and seems to be the basis of  all  this  negative  action
against him doesn’t completely or accurately  document  his  interview  with
the investigator, and also doesn’t recommend he be punished in any way.

All he ever received was a short memorandum from  his  then  Wing  Commander
telling him he was  removing  him  from  his  position  as  the  MSG  Deputy
Commander.  He was not afforded an opportunity  to  ask  questions,  present
any type of defense, or  submit  any  rebuttal  or  explanatory  information
after he received the memorandum, and the memorandum was not placed  in  his
OSB.  Had he been given an LOC, LOA, or LOR, he would have been  allowed  to
provide a rebuttal presenting his side of the story which  would  have  been
required  to  be  attached  to  the  memorandum,  and  to  review  the   CDI
immediately in order  to  provide  a  response.   He  submits  there  wasn’t
evidence to support any punishment action against him.

He has also not been able to review the judicial review and  recommendations
by the Pope AFB Staff Judge Advocate.  He submits that if the  legal  review
supported action against him, he would have been provided the  legal  review
as further evidence that he was a “screw up”, and the fact that it is  being
withheld  from  him  speaks  volumes.   The  applicant  then  addressed  his
concerns with the opinions provided in each paragraph of the AFPC/DPPPEP  24
April 2007 advisory.

While the AFPC/DPPRRP advisory goes  to  great  lengths  outlining  the  law
regarding the SERB and points out that there are  provisions  in  place  for
him to request a  90  day  extension,  it  fails  to  mention  that  as  the
situation stands, he doesn’t qualify for said  active  duty  extension,  and
this is why he is asking the AFBCMR for that  relief.   He  is  dismayed  by
another  AFPC  representative  being  more  concerned   with   the   overall
“equitability” to Air Force members as a whole.  What he is  asking  for  is
equitability for himself and his family.

Applicant’s complete response 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  agree
with the opinion and recommendation of the  Air  Force  offices  of  primary
responsibility and adopt their rationale as the  basis  for  our  conclusion
that the applicant has not been the victim of an error  or  injustice.   The
applicant’s contentions are noted; however, from the evidence presented,  it
appears the senior rater accurately commented on his unacceptable  behavior,
and the applicant has failed to provide  substantial  evidence  proving  the
PRF is inaccurate as written.  Evidence  has  been  presented  that  he  was
removed from his leadership position for creating an abusive/offensive  work
environment, a point not in contention,  and  this  impropriety  appears  to
have been appropriately reflected in his  PRF.   Although  he  contends  the
senior rater has over-stressed an isolated incident or  a  short  period  of
substandard performance  or  conduct,  the  senior  rater  is  obligated  to
consider such incidents, their significance, and the  frequency  with  which
they occurred in  assessing  performance  and  future  promotion  potential.
Only the senior rater knows how much an incident influenced the report,  and
it appears the senior rater prepared the PRF in direct compliance  with  the
current regulation.  The CSB has his entire OSR that  clearly  outlines  his
accomplishments since the day he came on active duty and  is  empanelled  as
an independent body to factor the senior rater’s recommendation  into  their
assessment of an officer’s overall record.  From  the  information  provided
by the applicant, the OPR closing 6 April 2005 became  a  matter  of  record
the same day the CDI was completed; thus, the rater  was  not  obligated  to
mention this information since the OPR closed-out  prior  to  completion  of
the investigation.  The applicant was selected for  early  retirement  under
the provisions of 10 USC, Section 638,  and  the  law  does  not  permit  an
officer to be retained past a mandatory retirement date to await  an  AFBCMR
decision to meet an SSB, or to await the outcome of such SSB if  ordered  by
the AFBCMR.  Therefore, in the absence of evidence to the contrary, we  find
no compelling  basis  to  recommend  granting  the  relief  sought  in  this
application.

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 issue(s) 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-2007-00825
in Executive Session on 17 January 2008, under the  provisions  of  AFI  36-
2603:

                       Mr. Michael K. Gallogly, Panel Chair
                       Mr. Anthony P. Reardon, Member
                       Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Mar 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPEP, dated 24 Apr 07.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 3 May 07.
    Exhibit E.  Letter, SAF/MRBR, dated 11 May 07.
    Exhibit F.  Letter, Applicant, dated 5 Jun 07.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair