RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-00528 

 

 COUNSEL: 

 

 HEARING DESIRED: YES 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His referral Officer Performance Report (OPR) covering the 
period 25 Aug 10 through 7 Mar 11 be declared void and removed 
from his records. 

 

2. He be retroactively promoted to the rank of lieutenant 
colonel (Lt Col) in accordance with the results of the CY10A Lt 
Col Line Central Selection Board. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

In 2011, his leadership unjustly and improperly punished him for 
an incident which occurred two years and two assignments prior, 
resulting in excessive consequences far beyond what was intended 
or justified, even though his leadership at that time had taken 
what they deemed to be the appropriate punitive measures. 

 

In Mar 11, he received an untimely Letter of Reprimand (LOR) 
with a Unfavorable Information File (UIF) for a Mar 09 incident 
in which he was arrested for driving under the influence (DUI) 
from a leadership chain that was not his leadership at the time 
of the incident. The LOR w/UIF resulted in his receiving a 
referral OPR for the reporting period 25 Aug 10 through 
8 Mar 11, even though the incident was well outside of the 
reporting period. AFI 36-2406, Officer and Enlisted Evaluation 
System, states a performance report will not include events from 
the previous rating period if they were known to and were 
considered by the previous evaluators. When he was arrested, he 
immediately reported the DUI to his leadership, who took what 
they felt were the appropriate actions. The administrative and 
punitive actions taken were untimely and impermissible by the 
regulation. 

 

The untimely administrative actions taken in 2011, to include 
the removal of his name from the Lt Col promotion list, were not 
made for the purpose of counseling nor to correct improper 
behavior as these tools are intended, rather they were 
improperly used for the sole purpose of post hoc record keeping. 
AFI 36-2406 directs a rater to consider the significance and 


frequency of incidents (including isolated instances of poor or 
outstanding performance) when assessing total performance. His 
supervisors in 2009 were fully aware of the details surrounding 
his arrest and they assessed his overall performance. They 
continued to support him for a Definitely Promote (DP) for 
promotion to Lt Col, and pushed him for attendance at 
Intermediate Developmental Education (IDE) where he achieved 
straight “As” and was a distinguished graduate. His division 
leadership in 2011 nominated him as Field Grade Officer (FGO) of 
the Quarter three times, and he was recognized as in the top 10% 
of FGOs with whom his rater had worked. Even on his referral 
OPR, his leadership continued to endorse him for Command, 
attendance at Senior Developmental Education (SDE), and 
leadership roles. Repeating the assessment of his error and 
increasing his punishment two assignments later is an injustice. 
It is clear the purpose of the LOR and administrative 
punishments was not to correct behavior but simply to offer 
tardy documentation. 

 

His records are now incomplete and likely misleading for a 
subsequent promotion board. The same authority that removed his 
line number to Lt Col, also removed his LOR and UIF, eliminating 
his lengthy response including the fact that he immediately 
reported the incident. While he is happy the inappropriate 
items are removed from his record, all that now remains is the 
referral OPR that obliquely references the LOR for his DUI and 
failing to report his arrest to security. 

 

The collateral consequences are unjust because they were greater 
than intended. His leadership in 2009 did not intend to inhibit 
his promotion. However, had they inserted derogatory 
information into his subsequent OPR, he still would have had the 
opportunity to meet the in-the-zone (IPZ) Lt Col Selection Board 
with a strong overall record. The 2011 propriety action 
removing him from the promotion list not only went against the 
intent of his leadership at the time, but effectively removed 
his promotion entirely, and put his future retention in the Air 
Force in question, delivering a harsher punishment than would 
have been possible at the time of the incident. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant serves on active duty in the rank of Major. 

 

On 28 Mar 09, the applicant was arrested for driving under the 
influence (DUI). He immediately reported the DUI arrest to his 
leadership and was verbally counseled. The applicant did not 
personally report the arrest to the appropriate security office, 
which was the proper procedure for that particular organization. 


His leadership did not make the incident an official matter of 
record by formally documenting it in his military record. 

 

On 18 Aug 09, the applicant was convicted of DUI by a civilian 
court. 

 

On 8 Mar 10, the applicant was subsequently selected for Lt Col 
on the Calendar Year (CY) 2010A Lt Col Line Central Selection 
Board, with a projected pin-on date of 1 May 11. 

 

In Sep 10, while filling out security paperwork for a Special 
Access Program at a new assignment, the applicant properly 
documented the 2009 DUI conviction. 

 

On 25 Jan 11, the applicant’s current commander issued him a LOR 
for the DUI arrest from Mar 09, and for failing to report the 
DUI arrest to his security office at the time. Based upon the 
LOR, the applicant received the contested referral OPR. The 
referral bullet read “Received LOR 25 Jan 11 for DUI of alcohol 
back in 2009 and failing to report arrest to F-35 JPO Security 
Office.” 

 

On 8 Apr 11, the applicant’s commander initiated a promotion 
propriety action (PPA) to remove the applicant’s name from the 
Lt Col promotion list due to his civilian conviction for DUI. 
The action was reviewed and determined to be legally sufficient 
on 21 Apr 11. 

 

On 20 Jun 11, the Secretary of the Air Force approved the 
removal of the applicant’s name from the Lt Col promotion list. 

 

The remaining relevant facts pertaining to this application are 
described in the letters prepared by the Air Force offices of 
primary responsibility, which are included at Exhibits C, D, E, 
and F. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSIM recommends denial of the applicant’s request to 
remove his LOR. The applicant was unable to provide a copy of 
the LOR to determine if it was issued correctly. The use of the 
LOR by commanders and supervisors is an exercise of supervisory 
authority and responsibility directed by AFI 36-2907, Unfavorable Information File Program. 

 

A complete copy of the AFPC/DPSIM evaluation is at Exhibit C. 

 

AFPC/DPSOO recommends denial of the applicant’s request to be 
reinstated on the Calendar Year (CY) 2010A Lt Col Line Central 
Selection Board promotion list. The applicant was selected for 
promotion by the CY10A Lt Col Line Central Selection Board which 
convened on 8 Mar 10. The applicant’s projected promotion date 
was 1 May 11. AFI 36-2501 states commanders question promotion 


when the preponderance of evidence shows the officer has not met 
the requirement for exemplary conduct set forth in Title 10, 
U.S.C. 8583 or is not mentally, physically, morally, or 
professionally qualified to perform the duties of the higher 
grade. Air Force policy states that formal rules of evidence do 
not apply to a promotion propriety action. In addition, there 
is no time line as to when the action should be initiated as 
long as it is prior to the pin-on date. The removal action was 
reviewed by base and Air Force legal offices and the action was 
found to be legally sufficient to warrant the action taken. 

 

A complete copy of the AFPC/DPSOO evaluation is at Exhibit D. 

 

AFPC/JA recommends approval of the applicant’s request to void 
and remove his LOR, referral OPR, and to reinstate him on the 
Lt Col promotion list. The applicant was arrested for driving 
while intoxicated in the process of driving an intoxicated co-
worker home after a unit function. Immediately after the event, 
the applicant reported the incident to his chain of command. 
His leadership on 2009 chose to counsel the applicant for his 
misconduct, believing that this was an isolated incident-very 
much out of character for the applicant—that did not warrant 
further action. In fact, that command leadership subsequently 
recommended the applicant for promotion with a “Definitely 
Promote” recommendation. The adverse actions taken in 2011 were 
in fact technically and legally permissible. Nevertheless, the 
applicant is supported in his submission by letters from a Navy 
Commander who was in the applicant’s chain of command at the 
time of the incident, and the Air Force (now Lt Col) commander 
who was responsible for the action taken in 2009. They both 
confirm that the applicant reported the incident to his 
immediate chain of command immediately after it occurred, that 
he learned from his mistake, and that he continued to perform 
above his peers thereafter. The commander stresses in the 
strongest terms his belief that the applicant’s capacity to 
serve as a Lt Col was not compromised by the 2009 DUI. Under 
all the unique circumstances in this case, the actions taken in 
2011 were inappropriate and unjust. The command entity that was 
in the best and proper position to take action in this case was 
the applicant’s commanders and supervisors in place at the time 
the incident occurred. Acting fully within their discretion, 
they elected not to elevate what they viewed to be an 
uncharacterized and isolated incident to the level of a written 
reprimand and referral OPR. Ultimately, it was their decision 
to exercise their judgment that way and it was not appropriate 
or justified for a command—two assignments later—to second guess 
that command decision-making and substitute their judgment for 
commanders who were there at the time and were in a position to 
best understand the circumstances and nuances of what happened. 
Moreover, to do otherwise thwarts the finality of command 
decision-making that is an integral part of military command and 
discipline. It is improper to sanction a successor commander’s 
second guessing of a previous discretionary command action, 
particularly when, like here, the overall circumstances do not 
suggest that the original action was totally improper and 


requires reversal. The totality of the unique circumstances in 
this case has created an injustice that demands correction of 
the applicant’s record. 

 

A complete copy of the AFPC/JA evaluation is at Exhibit E. 

 

AFPC/DPSID recommends approval of the applicant’s request to 
void and remove his referral OPR. The applicant contends that 
being given an LOR and its reporting on the referral OPR by 
subsequent leadership two years later was untimely, 
inappropriate for their purpose, and was accomplished for the 
sole purpose of post hoc record keeping. AFPC/JA opined in this 
case that the actions taken by the rating chain in choosing to 
hold the applicant accountable a second time, and years after 
the originating incident, and report of the incident in an OPR, 
thereby causing it to be a referral is an injustice. We agree 
with this assessment. 

 

A complete copy of the AFPC/DPSID evaluation is at Exhibit F. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant repeats his initial contentions and supports each 
contention with quotes from his letters of recommendation and 
from the Air Force advisories. In addition, in response to the 
AFPC/DPSOO advisory, he responds that removal of the referral 
OPR is critical. The AFPC/JA legal advisory states “the actions 
taken by the (2011) rating chain in choosing to hold the 
applicant accountable a second time, resurrecting the offense 
years later, and initiate an LOR to be reported on a referral 
report constitutes an injustice.” 

 

A complete copy of the applicant’s response, with attachments, 
is at Exhibit H. 

 

________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

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

 

2. The application was timely filed. 

 

3. Sufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice. After a 
thorough review of the evidence of record and the applicant’s 
complete submission, we believe a preponderance of the evidence 
establishes sufficient doubt as to the propriety of the 
applicant’s referral OPR to warrant granting relief. While we 
note the comments of AFPC/DPSOO, we agree with the opinion and 
recommendation of AFPC/JA and adopt its rationale as the basis 


for our determination that the applicant has been the victim of 
an injustice. Specifically, we note at the time of the incident 
the applicant immediately reported his error to his leadership, 
who were in the best and proper position to take action. They 
took the disciplinary actions they felt were appropriate at the 
time. We do not believe it was appropriate or justified for a 
command—two assignments later—to second guess the original 
commanders’ decision-making and substitute their judgment for 
commanders who were there at the time and were in a position to 
best understand the circumstances and nuances of what happened. 
Further, by delaying the punishment for the applicant’s offense 
for two years, any opportunity the applicant had to recover from 
his error, which appeared to be the earlier commander’s intent, 
was effectively removed. Accordingly, we believe the ensuing 
actions rendered upon the applicant (Letter of Reprimand, 
referral OPR, and the PPA which removed him from the Lieutenant 
Colonel Promotion List) were completely unjustified. Therefore, 
we recommend the applicant’s record be corrected as indicated 
below. 

 

________________________________________________________________ 

 

THE BOARD RECOMMENDS THAT: 

 

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

 

 a. Any and all references to the 2009 Driving Under the 
Influence (DUI), be, and hereby are, declared void and removed 
from his records. 

 

 b. The referral Officer Performance Report (OPR) rendered 
for the period 25 August 2010 through 7 March 2011 be, and 
hereby is, declared void and removed from his records. 

 

 c. The Record of Promotion Propriety Action (PPA), dated 
1 April 2011, and all associated documents, be, and hereby are, 
declared void and removed from his records. 

 

 d. Upon Senate confirmation, he be promoted to the rank of 
lieutenant colonel (O-5) effective and with a date of rank of 
1 May 2011. 

 

________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2012-00528 in Executive Session on 29 Jan 13, under 
the provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

 


All members voted to correct the records, as recommended. The 
following documentary evidence pertaining to AFBCMR Docket 
Number BC-2012-00528 was considered: 

 

 Exhibit A. DD Form 149, dated 23 Jan 12, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSIM, dated 16 Mar 12. 

 Exhibit D. Letter, AFPC/DPSOO, dated 30 May 12. 

 Exhibit E. Letter, AFPC/JA, dated 8 Jun 12. 

 Exhibit F. Letter, AFPC/DPSID, dated 3 Jul 12. 

 Exhibit G. Letter, SAF/MRBR, dated 13 Nov 12. 

 Exhibit H. Letter, Applicant, dated 4 Jul 12, w/atchs. 

 

 

 

 

 

 Panel Chair