RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-03006
            INDEX CODE:  110.03, 131.10

      XXXXXXX    COUNSEL:  XXXXXXXXXX

            HEARING DESIRED: YES

___________________________________________________________________

APPLICANT REQUESTS THAT:

      1.  Her non-selection for active duty retention by the  Force
Shaping Board (FSB), which  convened  on  26  June  2006,  and  any
derogatory records be set aside.

      2.  Her 17 November 2006 involuntary release from active duty
be set aside and her records expunged.

      3.  She be reinstated from  her  current  Air  Force  Reserve
status back on active duty and  awarded  all  back/pay  allowances,
with the appropriate record corrections  reflecting  any  non-rated
time as no fault of the officer.

      4.  Her application be  processed  as  a  reprisal  claim  in
accordance with AFI 36-2603; DODD 7050.6 and 10 USC 1034.

      5.  In the alternative, process this appeal under 10 USC 1552
as an error or injustice.

___________________________________________________________________

APPLICANT CONTENDS THAT:

Her separation from active duty was improper because of a Retention
Recommendation  Form  (RRF)   that   incorrectly   and   improperly
characterized the quality of her service.  She further contends the
wrongful RRF was written in retaliation for having filed  Inspector
General (IG)  complaints  which  she  alleges  angered  the  base’s
command structure.

In support of her appeal, the applicant submits  a  statement  from
counsel; a copy of her AF IMT 3538, Retention Recommendation  Form,
dated 6 Feb 06; copies of her DD Forms 214, Certificate of  Release
or Discharge from Active Duty, issued 27 Aug  01  and  17  Nov  06;
copies of awards and decorations she received  during  her  career;
copies of officer performance  reports  (OPRs)  during  the  period
15 Aug 02 through 14 Aug 06; extracts from her  DOD  IG  complaint,
hotline complaint and other supporting documents.

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

___________________________________________________________________



STATEMENT OF FACTS:

Prior to the events under  review,  the  applicant  served  in  the
Regular Air Force from 23 May 1994 to  27  August  2001.   She  was
progressively promoted to the rank of staff sergeant.

She was commissioned on 6 June 2002  and  entered  active  duty  on
15 August 2002 in the rank of second lieutenant.

The applicant's OPR profile for the  last  four  reporting  periods
follows:

      PERIOD ENDING    OVERALL EVALUATION

      14 Aug 03  Meet Standards (MS)
      14 Aug 04  MS
      14 Aug 05  MS
      14 Aug 06  MS

On 10 April and 26 Jun  2006,  she  met  and  was  nonselected  for
retention by two FSBs.  She was progressively promoted to the  rank
of captain with an effective date and date of rank of 9 July  2006.


On 17 November 2006, she was honorably released  from  active  duty
and transferred to the Air Force Reserve under  the  provisions  of
AFI 36-3207 (Reduction in  Force).   She  was  credited  with  four
years, three months, and three days of active duty  service  during
this period.

On 31 August 2007, she was transferred from the Air  Force  Reserve
Obligated Reserve  Section  (ORS)  to  an  Individual  Mobilization
Augmentee (IMA) position  with  the  Oklahoma  City  Air  Logistics
Center (ALC), at Tinker AFB, OK.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/DPSOS  reviewed  this  application  and  deferred  to  the
discretion of the Board.

AFPC/DPSOS indicates that while they understand the  commander  has
the prerogative to rank  officers  as  he  or  she  sees  fit,  the
applicant’s ranking appears  questionable  based  on  the  evidence
presented.  She makes several valid points regarding her  #2  of  2
within her AFSC when the month before the RRF was signed and dated;
she was the recipient of one individual and two team major  command
level awards (Financial Analysis Officer  of  the  Year,  Financial
Analysis Office of the Year  and  the  Special  Acts  and  Services
Award).

According  to  AFPC/DPSOS,  they  found  no  procedural  errors  or
injustices in the processing of the applicant’s discharge.

The HQ AFPC/DPSOS’s complete evaluation is at Exhibit C.

HQ AFPC/JA recommends the applicant’s nonselection for retention by
the 6 June 2006 FSB be set aside and that she be  considered  by  a
special FSB selection board utilizing a corrected RRF.

Prior to her consideration by the 26 June 2006 FSB,  the  applicant
had established an outstanding record of  service.   Her  2004  OPR
reflects her having been selected Company Grade  Officer  (CGO)  of
the Quarter;  her  04-05  OPR  rater  ranked  her  number  1  of  3
lieutenants in the organization; her 05-06  OPR  rater  ranked  her
number 1 of 2 in FMA (in addition, her office received  the  Fiscal
Year  2005 (FY05) Air Mobility  Command  (AMC)  Financial  Analysis
Office of the Year award); and the additional rater  on  the  05-06
OPR ranked her number 1 of 17 AMC budget  officers  (based  on  her
winning the AMC’s Budget Officer  of  the  Year  award).   The  RRF
signed by Colonel R (the commander and senior rater) for the 06 FSB
summarized  the  outstanding  record  in  the  Block  IV  Evaluator
Comments.  Notwithstanding that, however, he also commented:

      “In his/her year group, this officer ranks  #8  of  9  in  my
unit.
      In his/her year group, this officer ranks #2 of 2 of  his/her
C     CORE AFSC in my unit.”

It is pretty obvious that this latter comment by the  senior  rater
is totally  at  odds  with  everything  documented  concerning  the
applicant’s performance.  The comment is totally inconsistent  with
the word picture written in the  same  document.   Nothing  in  the
applicant’s record of performance would even  begin  to  justify  a
downgrade from  the  highest  ratings  and  rankings,  nor  do  any
official documents of record explain such a departure.

The applicant, however, has offered an explanation for  this  about
face on the part of her senior rater which, in the absence  of  any
evidence to the contrary, establishes “(by what we believe to be  a
preponderance of the evidence of record)”  that  the  senior  rater
acted improperly and as an act of  retaliation  for  the  applicant
having filed two IG complaints.  In the statements attached to  her
counsel’s brief, she has detailed a series of  events  wherein  her
supervisory chain  (and  Wing  Commander,  in  particular)  reacted
adversely  to  IG  complaints  she  filed  regarding  her  upcoming
assignment and what she believed to be  reprisal  action  taken  in
response to her first complaint.

Given the applicant’s outstanding record of performance,  there  is
little   doubt   that   the   senior   rater’s   strong    negative
characterization of the applicant in her RRF was a contributing, if
not determinative, factor in her nonselection for retention.  As  a
consequence, the best resolution of this issue is  to  correct  the
6 February 2006 RRF by deleting the remarks in Block  VII,  setting
aside the applicant’s nonselection for retention by the  2006  FSB,
and ordering the applicant  be  reconsidered  for  retention  by  a
special (FSB) selection board utilizing the corrected RRF.

HQ AFPC/JA’s complete submission is at Exhibit D.

___________________________________________________________________



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel states that a careful interpretation of the
two  advisory  opinions,  their  factual  conclusions   and   legal
analyses, both directly and  indirectly—establish  the  applicant’s
case meets the threshold of a special “egregious” case of  material
error or “fundamental error,” or involved an “impermissible factor”
of unlawful reprisal that was designed  by  the  RRF  officials  to
ensure nonselection.  (1) The brazen public threats of  retaliation
followed by personal reprisal  by  senior  officers  calculated  to
derail her retention, and (2) where the  material  error  was  “the
determinative factor” in her discharge, as conceded by JA.  (3) The
BCMR has both the authority and history to craft a whole remedy  in
these distinctive cases: it corrects the material error,  does  not
require a relook board, and then voids the discharge  to  reinstate
with pay.  In this case the harmless error test normally applied by
relook  boards  is  unnecessary  moot—it  will  only  prolong   the
inevitable retention result while forever damaging the  applicant’s
ability to catch up with her peers’ active duty performance.

The 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.  After a  thorough
review of the facts and  circumstances  of  this  case,  the  Board
agrees with AFPC/JA that corrective action is warranted.  It  notes
that prior to the 10 Apr 06 FSB that resulted in  her  nonselection
for retention, the applicant had established an outstanding  record
of service.  In view of this, it also agrees with AFPC/JA that  her
senior rater’s strong negative characterization of her in  the  RRF
was a contributing factor in her nonselection for  retention.   The
applicant contends the RRF was a retaliatory  act  for  her  having
filed an IG complaint.  The Board  does  find  the  senior  rater’s
comments in the RRF to be totally inconsistent with her  documented
performance.  Therefore, it is persuaded that any  doubt  regarding
her fair and equitable consideration  by  the  above-mentioned  FSB
should be resolved in favor of  the  applicant.   The  Board  notes
AFPC/JA recommends the  RRF  be  amended  by  deleting  the  senior
rater’s comments in Section VII; her nonselection for retention  be
set aside; and her record be considered by a special FSB, with  the
inclusion of a corrected RRF.  However, the majority of  the  Board
believes that thorough and fitting relief in this case would be  to
correct her records to show that she was selected for retention  by
the  10  Apr  06  FSB,  and  to  reinstate  her  to  active   duty.
Accordingly, the majority recommends  the  applicant’s  records  be
corrected as set forth below.

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 RECOMMENDS THAT:

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

      a.  She was selected  for  retention  by  the  Force  Shaping
Board, which convened on 10 April 2006.

       b.  She  was  not   released   from   the   Air   Force   on
17 November 2006, but continued to serve on  extended  active  duty
and was ordered Permanent Change of Station (PCS) to  her  home  of
record or home of selection pending further orders.

      c.  Any nonselections for promotion to  the  grade  of  major
prior to receiving a minimum of three Officer  Performance  Reports
(OPRs) with at least 250  days  of  supervision  in  the  grade  of
captain be set aside.

___________________________________________________________________

The following members of the Board considered AFBCMR Docket  Number
BC-2008-03006 in Executive  Session  on  15  May  2009,  under  the
provisions of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Ms. Teri G. Spoutz, Member
      Mr. Dean Yount, Member

By a majority,  the  members  voted  to  correct  the  records,  as
recommended.  Ms. Spoutz voted to correct the record as recommended
by HQ AFPC/JA.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 14 Jul 08, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, HQ AFPC/DPSOS, dated 19 Nov 08.
     Exhibit D.  Letter, HQ AFPC/JA, dated 18 Dec 08.
     Exhibit E.  Letter, SAF/MRBR, dated 9 Jan 08.
     Exhibit F.  Letter, Applicant, dated 31 Mar 09.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair




AFBCMR BC-2008-03006




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 XXXXXXX, XXXXXXX, be corrected to show that:

      a.  She was selected for retention by the Force Shaping Board,
which convened on 10 April 2006.

      b.  She was not released from the Air Force on 17 November 2006,
but continued to serve on extended active duty and was ordered
Permanent Change of Station (PCS) to her home of record or home of
selection pending further orders.



      c.  Any nonselections for promotion to the grade of major prior
to receiving a minimum of three Officer Performance Reports (OPRs)
with at least 250 days of supervision in the grade of captain be, and
hereby are, set aside.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency