RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-01473
		
		COUNSEL:  
		
		HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT: 

1.	His nonselection for promotion by a Special Selection Board 
(SSB) for the Calendar Year 2009C (CY2009C) Major Central 
Selection Board be voided.

2.	The AF Form 709, Promotion Recommendation Form (PRF), from 
June 2011 be removed from his records.

3.	His second non-selection for promotion to Major be removed 
from his records.

4.	He be reinstated into the Air Force and granted a direct 
promotion to major with all back pay and allowances.

________________________________________________________________

APPLICANT CONTENDS THAT:

In December 2007, he volunteered for a deployment to Kandahar 
Air Base.  In early 2008, he filed equal opportunity (EO) and 
Inspector General (IG) complaints to stop the computer 
circulation of pornography by unit officers and enlisted 
members, as well as to investigate other systemic misconduct 
within the unit.  In reprisal, he was branded as not a team 
player, uncooperative and ill-motivated.

The EO and IG complaints resulted in a Commander-Directed 
Investigation (CDI) into the allegations of abuse of authority, 
intimidation, inappropriate use of government computers, 
dereliction of duty and harassment.

While the CDI was pending, his rating officials, in reprisal, 
released him early from deployment and referred him for a mental 
health exam.  The exam results were favorable to him as there 
was no finding of mental illness or personality disorder.  He 
was returned to duty.

On 31 March 2009, he received a referral officer performance 
report (OPR) for the period of 12 November 2007 through 
27 September 2008.  The additional rater completed her portion 
in November 2009.  He filed an appeal through the Evaluation 
Report Appeals Board (ERAB) in September 2009.  It was returned 
without action stating the OPR was not yet a matter of record.  
Despite the referral OPR not being a matter of record, the 
senior rater issued a “Do Not Promote” Performance 
Recommendation Form (PRF).  In November 2009, the referral OPR 
and PRF were forwarded to the promotion board.  In February 
2010, he was non-selected for promotion to major by the CY09 
Central Selection Board (CSB).

In May 2010, he received two outstanding OPRs.  In July 2010, he 
submitted ERAB #1 to void the referral OPR and request an SSB.  
While the ERAB was pending, he received a “Promote” PRF.  On 
30 September 2010, the ERAB approved his request to void the 
referral OPR and his case was forwarded for SSB consideration.  
However, ERAB #1 did not remove the “Do Not Promote” PRF 
referencing the referral OPR.  An ERAB official suggested he 
request an amended ERAB.  On 19 October 2010, the Air Force 
Personnel Center (AFPC) granted an SSB for CY09.  On 29 November 
2010, ERAB #2 voided the 2009 PRF.

Through no fault of his own, he was prejudiced before the CY10 
Major Board.  The Board considered his 2010 “Promote” PRF.  His 
supervisor told him that the referral OPR, that had not yet been 
voided, adversely affected the PRF narrative and the promotion 
recommendation.  He was prevented from timely removing the 
referral OPR as it was not filed until over 20 months after its 
September 2008 close-out.

In January 2011, the SSB reconsidered him for CY09.  There was 
no PRF in his record prior to the SSB.  The SSB could not look 
at the favorable OPR closing in May 2009 as it was delayed until 
March 2010 and not a matter of record before CY 2009.

In May 2010, the CY10 Major Board nonselected him for promotion.  
On 1 June 2010, the SSB CY09 results were released and he was 
again, nonselected for major.  As a two time nonselectee, he was 
scheduled to separate on 30 September 2011.  

The failure to provide the PRF, violated procedures for both 
regular promotion boards and SSBs.  The SSB lacked the PRF which 
provided a performance based differentiation to assist the 
selection board.  Therefore, results of the CY09 SSB that 
convened in January 2011 must be set aside.

AFPC failed to coordinate with their subordinate AMC promotion 
officials.  It was an AFPC promotion official that informed him 
to submit a letter to the SSB stating that his senior rater 
refused to rewrite the PRF.  

After the senior rater learned that the lack of a PRF may 
invalidate the 2011 SSB, he rewrote the PRF in June 2011.  In 
mid-July, the ERAB returned his memo without action because it 
was not in effect a minor, administrative correction; rather, it 
constituted an appeal of the new PRF.  In late July 2011, he 
again asked about the PRF.  In August 2011, he began terminal 
leave.  

Remedy by the Board is available where the promotion process has 
proven unfair or unworkable, the error or unfairness for non-
selection is identified and the officer is likely to have been 
promoted but for the error or unfairness.  There is an AFBCMR 
case involving a Force Shaping Board process that was not fair 
or equitable because of an adverse retention recommendation 
form; similar to a PRF.  The officer was reinstated without a 
relook SSB.  The Board found there was a lack of fair and 
equitable consideration and that the adverse action was 
consistent with a retaliatory act for the officers filing of an 
IG complaint.  The officer’s records were otherwise outstanding 
and she was granted direct reinstatement without an SSB.

Letters of support have been provided from three lieutenant 
colonels and a GS-14, all within the intelligence career field.  
They independently reviewed his records and concluded that he 
would have received at the least a “Promote” PRF for CY09.  They 
also concluded that he would have been promoted under the 
selection rate for “Promote” PRF’s which was 97 percent. 

This case has proven the remedial SSB process was unfair.  
Further the SSB proceedings are unworkable because the senior 
rater circumvented reaccomplishing the PRF by disguising the 
derogatory comments from the voided OPR.  He requests the Board 
grants the relief requested.

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant is a former member of the Air Force who served 
from 27 September 2001 through 27 September 2011.

On 21 October 2009, the AMW/IG received a complaint from the 
applicant alleging reprisal.  The investigation found there was 
no abuse of authority and no reprisal.  The allegation was 
dismissed.  

On 10 February 2010, ACC/IG responded to a complaint filed with 
SAF/IG in November 2009 alleging a cover-up by 9 AF/IG and the 
handling of the applicant’s concerns.  A thorough review was 
conducted and it was determined his allegations were addressed 
in a fair and unbiased manner.

On 22 February 2010, HQ AMC/IG notified the applicant that they 
conducted an investigation into his allegations of reprisal and 
found that the responsible management official did not reprise 
against him, nor did they abuse their authority.  As a result, 
they recommended his allegations be dismissed.

The remaining relevant facts pertaining to this case, extracted 
from the applicant’s master personnel records, are described in 
the letters prepared by the Air Force offices of primary 
responsibility which are included at Exhibits C through F.  

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSID recommends denial of removing the PRF for the CY2009C 
Major CSB from the applicant’s records.  

On 23 September 2009, the applicant submitted a request to void 
the 27 September 2008 OPR to the ERAB; however, due to no 
response to a request for additional information, the case was 
closed.  On 3 September 2010 the applicant again requested the 
ERAB void the 27 September 2008 OPR, which was approved on 
30 September 2010 and an AF Form 77, Letter of Evaluation, was 
placed into the applicant’s record in place of the OPR.  
Additionally, the applicant filed another request to the ERAB on 
19 October 2010 requesting the CY2009C PRF be removed and he be 
provided SSB consideration.  That request was approved on 
29 November 2010.  The SSB convened on January 2011, with the 
contested OPR and PRF not present in his Officer Selection 
Record (OSR).  

The applicant filed another ERAB on 2 July 2011 to void his 
21 December 2009 OPR; due to a lack of response for additional 
information, the application was closed.  On 6 July 2011, his 
senior rater, who wrote the original contested PRF, petitioned 
the ERAB to substitute the AF Form 77 with a newly revised PRF 
that eliminated any reference to the applicant’s referral OPR.  
This action is authorized under AFI 36-2401, para 2.2, if 
someone other than the ratee finds error in the report, he or 
she may initiate corrective action.  In this case, the senior 
rater initiated the appeal on the applicant’s behalf.  The 
applicant was given a reasonable amount of time to acknowledge 
and or respond with a memorandum, which the applicant provided 
for use in the appeal.  This application was approved by the 
ERAB on 31 October 2011, which voided the AF Form 77 present in 
the record and replaced it with a new “Do Not Promote” PRF.  The 
applicant was notified of this decision by telephone.

The applicant contends that he was done an injustice when he was 
approved for a January 2011 SSB without the voided PRF.  He 
believes that the successful removal of his 2008 OPR and CY2009C 
PRF should have resulted in a new PRF.  He also does not 
understand why the ERAB did not, at the time of the ERAB, decide 
to void the CY2009C PRF.  The ERAB considers specific relief as 
requested by applicants.  It is not an investigative body and 
does not seek relief other than what is requested.  The 
applicant had to specifically request the ERAB void his PRF.  As 
stated above, he successfully appealed to the ERAB and the PRF 
was removed.  Therefore, the applicant was provided the relief 
sought in time for his January 2011 SSB.

The applicant later submitted a PRF justification sheet to his 
new Senior Rater requesting a new PRF be written to replace the 
existing AF Form 77 in the evaluation record.  That request was 
in violation of AFI 36-2401, para A1.5.22.1, in that the 
reaccomplished evaluation report, or in this case PRF, must be 
signed by the original evaluator who signed the original PRF.  
Only under extremely circumstances would it have been 
appropriate for his new rater to rewrite the document.  

The applicant feels his original rater’s ERAB request 
constituted an injustice.  The senior rater’s comments and 
recommendation are required.  The applicant feels the senior 
rater ignored requests to write his PRF in time for his 
10 January 2011 SSB.  The original senior rater took appropriate 
action after learning the applicant approached his new senior 
rater requesting his PRF be rewritten.  The fact that these 
actions took place after the January 2011 SSB is irrelevant to 
the applicants overall case and has no merit.  There is also a 
presumption that the PRF was quality reviewed and properly 
completed prior to its submission to the ERAB for substitution 
on 31 October 2011.  

The applicant also contends he is the victim of reprisal due to 
filing EO and IG complaints against several fellow unit members 
while deployed.  The applicant was released early from this 
deployment and was ultimately given a referral OPR at his home 
station.  The applicant has failed, within this case, to prove 
that this was reprisal with regard to the PRF.  The SAF/IG 
report does not substantiate a single incident of reprisal or 
that could have cast doubt on the impartial preparation or 
execution of the contested PRF.  The SAF/IG report also 
identified that a previous Commander-Directed Investigation 
completed prior to the SAF/IG report did not substantiate any of 
those allegations.  Therefore, the CY2009C PRF that was 
prepared, quality reviewed and approved for substitution by the 
ERAB is a legitimate document which corroborates the findings of 
the CDI and SAF/IG investigation.  The applicant’s contentions 
of improper processing or consideration of the contested report 
is without merit.

The applicant has not provided any substantiating evidence to 
prove his assertions that the approved substitute PRF that was 
placed into his records was rendered unfairly or unjustly.  Air 
Force policy dictates that an evaluation report is accurate as 
written when it becomes a matter of record.  To effectively 
challenge an evaluation, it is necessary to hear from all the 
members in the rating chain; not only for support, but also for 
clarification and explanation.  The burden of proof is on the 
applicant and he has not substantiated the contested PRF was not 
rendered in good faith by all evaluators based on knowledge 
available at the time.  To void this evaluation would not give 
any potential future supplemental selection board an accurate 
and complete picture of the applicant’s overall duty 
performance.  

The complete DPSID evaluation is at Exhibit C.


AFPD/DPSOO recommends denial of the applicant’s request to void 
his nonselections to major and to directly promote him to major.

The applicant was considered and not selected for promotion to 
the grade of major by the CY09C and CY10D major CSBs that 
convened on 2 November 2009 and 6 December 2010, respectively.  
Additionally, he was considered and not selected for promotion 
by the SSB that convened on 10 January 2011 for the CY2009C CSB. 

An SSB convened for the purpose of having a relook based on an 
error or injustice is just that, a relook.  Any nonselection for 
that purpose does not constitute another nonselection.  
Therefore, there is nothing to be voided.  The nonselection was 
based on a complete review of the applicant’s record.  There is 
no evidence to suggest the applicant was prejudiced by this 
board.  The applicant received a “Promote” recommendation with 
no negative comments.  Without proof of error or injustice, the 
nonselection should not be voided.

The results of the original CY2009C promotion board were based 
on a complete review of the applicant’s entire selection record, 
assessing the whole person factors, such as, job performance, 
professional qualities, depth and breadth of experience, 
leadership, and professional development.  Although the officer 
may be qualified for promotion, he may not be the best qualified 
of other eligible officers competing for the limited number of 
promotion vacancies in the judgment of a selection board with 
the discretionary authority to make such selections.  To grant a 
direct promotion would be unfair to all other officers who have 
extremely competitive records, but did not get promoted.

Additionally, both Congress and DoD have made clear their intent 
that errors ultimately affecting promotions should be resolved 
through the use of SSB’s.  When many good officers are competing 
for a limited number of promotions, it is extremely competitive.  
Without access to all the competing records and a review of 
their content, we believe sending approved cases to SSBs for 
remedy is the fairest and best practice.  However, in this case, 
direct promotion and SSB consideration would be inappropriate.

The complete DPSOO evaluation is at Exhibit D.

AFPC/DPALO3 does not make a recommendation and provides 
information regarding assignments, should the applicant be 
reinstated.

The 14N career field is manned at 71.88 percent at O-3 and 61.98 
percent at O-4.  Upon meeting his first major’s board in 2009, 
the applicant was in the 2001 year group.  The 14N career field 
is currently 17 officers below sustainment for that year group.  
The career field also requires a top-secret clearance; 
therefore, his clearance must be revalidated prior to assuming 
14N duties.

Should the applicant be reinstated with a valid security 
clearance, he would be matched to an assignment based on his 
previous qualifications and the needs of the Air Force.

The complete DPALO3 evaluation is at Exhibit E.

AFPC/JA recommends denial of the application.  The CY2009C and 
CY2010D central selection boards were conducted in accordance 
with the law and governing instructions.  The applicant failed 
to prove any injustice with respect to those boards, or that any 
additional SSB consideration is required.  He has similarly 
failed to establish any error or injustice that would warrant a 
direct promotion to major.  

Therefore, his discharge pursuant to 10 U.S.C 632 and AFI 36-
3207, para 3.4, for having been twice passed over for promotion 
to O-4 was proper.  That determination moots the applicant’s 
request for reinstatement in the Air Force as he has established 
no basis that would mandate or justify doing so.  The applicant 
failed to prove any error or injustice with respect to any of 
the actions he challenges.  

The complete JA evaluation is at Exhibit F.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Through counsel, the applicant states the factual assertions are 
baseless, irrelevant sideshows to the merits.  The two primary 
claims are:  prejudicial SSB CY2009 relook, without any PRF 
despite his due diligence; and the rewritten PRF in 2011 was 
improperly presented as a performance based differentiation, but 
instead was based on alleged performance that bypassed the OPR 
process.  The new PRF resurrects the same performance comments 
from the voided OPR and resulted in the same effect as if the 
original OPR and PRF were never removed.  

With regard to DPAL03’s advisory, should he be reinstated, he 
has an active top secret clearance and is undergoing a periodic 
reinvestigation.  

With regard to DPSID’s assertion that he never requested a new 
PRF prior to his SSB, he repeatedly requested a new PRF, but his 
senior rater refused to rewrite the 2009 PRF.  His supervisors 
also requested a new PRF, but the senior rater again refused.  
He further addressed the instances in which a new PRF was 
requested, yet, never written.  He now contends the senior rater 
forfeited his right to 10 months later; provide input to correct 
the same PRF.

DPSID also states that he never requested a substitute PRF 
before the SSB and that it was the senior rater’s own initiative 
in 2011 to rewrite the PRF after learning the new senior rater 
was approached.  He was told the lack of a PRF was a material 
error and requested a new PRF through the command and the Air 
Force Personnel Center.  The advisory misleads the Board by 
asserting that he never requested a substitute PRF; however, the 
advisory writer was informed of the senior rater’s refusal in 
June 2011.

The JA option offers conclusive statements without discussion of 
the facts.  There is no explanation for any conclusions which 
suggests the intent to unduly influence the Board.  The JA 
opinion should be ignored.

DPSID’s argument is that the senior rater’s substituted PRF can 
still adversely comment on performance that covers an unrated 
period not a matter of record.  They failed to comprehend the 
dilemma in this case.  How can evaluators convert their voided 
ratings to an unapproved PRF?  The senior rater used the PRF to 
make an end-run around the OPR process after the ERAB decision 
to void the evaluator’s original referral OPR and PRF.  The 
rewritten PRF was still adverse with a “Do Not Promote.”  It was 
the senior rater’s way to bypass the OPR rating to then include 
derogatory performance allegations.

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.  Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice.  After a 
thorough review of the evidence of record, the applicant’s 
submission and counsel’s response to the Air Force advisories, 
we are not persuaded that his CY 2009C SSB should be voided, his 
second non-selection to major be removed and he be reinstated 
and granted a direct promotion to major with all back pay and 
allowances.  His contentions in this regard are duly noted; 
however, in our opinion, the Air Force offices of primary 
responsibility have adequately addressed these contentions and 
we are in agreement with their assessment of his case.  We agree 
with AFPC/DPSOO that a special selection board is simply a 
relook and does not constitute a non-selection; accordingly, the 
request to void the SSB is not favorably considered.  

4.  Additionally, the applicant requests his June 2011 PRF be 
removed from his records.  The applicant, through counsel, 
contends that the June 2011 PRF is an end-run around to the OPR 
process; we disagree.  The governing regulation states that 
senior raters may request subordinate supervisors provide 
information based on the officer’s duty performance.  The 
applicant has not provided substantial evidence that his senior 
rater’s comments were based on unreliable information as 
contended.  Therefore, we do not find the June 2011 PRF should 
be removed from his records.  In view of the above, we find no 
basis to recommend granting the applicants request to be 
reinstated into the Air Force and receive a direct promotion to 
major.

5.  The applicant alleges that he has been the victim of 
reprisal and has not been afforded full protection under the 
Whistleblower Protection Act (10 USC 1034).  We reviewed the 
evidence of record to reach our own independent determination of 
whether reprisal occurred.  Based on our review, we do not 
conclude the applicant has been the victim of reprisal.  The 
applicant was provided relief, as appropriate, by the ERAB. 
Therefore, it is our determination the applicant has not been 
the victim of reprisal based on the evidence of record in this 
case.

6.  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 an 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 AFBCMR Docket 
Number BC-2012-01473 in Executive Session on 4 February 2013, 
under the provisions of AFI 36-2603:


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2012-01473 was considered:

      Exhibit A.  DD Form 149, dated 21 Mar 12, w/atchs.
      Exhibit B.  Applicant’s Master Personnel Record.
      Exhibit C.  Letter, AFPC/DPSID, dated 21 May 12.
      Exhibit D.  Letter, AFPD/DPSOO, dated 31 July 12.
      Exhibit E.  Letter, AFPC/DPALO3, dated 17 Aug 12.
      Exhibit F.  Letter, AFPC/JA, dated 20 Sep 12.
      Exhibit G.  Letter, SAF/MRBR, dated 1 Oct 12.
      Exhibit H.  Applicant’s Response, dated 1 Nov 11 [sic],  
                  w/atchs.
      Exhibit I.  Unredacted SAF/IG investigation withdrawn.