RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-03871
COUNSEL: NONE
HEARING DESIRED: YES
________________________________________________________________
APPLICANT REQUESTS THAT:
1. His officer performance report (OPR) for the period of
10 December 2002 through 9 December 2003, be voided and removed
from his record.
2. His date of rank (DOR) of promotion to the grade of
Lieutenant Colonel (Lt Col) be changed from 1 April 2006 to
1 April 2005.
3. His date of rank (DOR) of promotion to the grade of Colonel
(Col) be changed from 1 October 2011 to 1 October 2010.
4. He be granted back pay and allowances for the adjusted DORs.
5. He be granted any other benefits or entitlements that would
have accrued with promotion on the CY04B Lt Col board and
promotion on the in-the-zone Colonel board.
6. His retirement grade be adjusted to reflect the grade of
Colonel, O-6.
7. His retirement pay and allowances be adjusted to account for
the corrected dates of rank.
________________________________________________________________
APPLICANT CONTENDS THAT:
One of his OPRs contains two factual errors and his rater
engaged in reprisal. As the top OPR for his Lieutenant Colonel
Central Selection Board, the reprisal and OPR had an unjust
impact and caused his non-selection for promotion.
1. The reprisal consisted of both adverse personnel action and
written OPR comments indicative of poor performance.
2. The Squadron Director of Operations (DO) asked him to write
and sign an OPR for someone he did not know and for whom he did
not have the required period of supervision. When he declined
and utilized his chain of command to express his concerns, the
DO took adverse personnel action by removing his supervisory
responsibilities.
a. Air Force Instruction (AFI) 36-2406, Officer and Enlisted
Evaluation System, requires raters to have 120 days of
supervision in order to write an OPR. It had been less than 30
days since the DO designated him as the member's rater. After
reading the AFI and consulting with military personnel flight,
he informed the DO he did not have the required days of
supervision and he did not know the member he was asked to
report on, therefore, he could not sign the OPR.
b. In response, the DO sent an email to everyone in the unit
with a subject line entitled Hammer Time!! The DO said it was
not acceptable for anyone to refuse to write an OPR regardless
of whether they knew the ratee or not. The DO further stated:
(1). I don't know this person will not be accepted as an
excuse.
(2). There is no time like the present to get to know
your fellow man.
(3) Let's face it, given good inputs, you can write on
anyone and make it look good.
4. This guidance was contrary to AFI 36-2406. He contacted
his unit commander to express his concerns. In reprisal, the
DO removed his supervisory responsibilities.
a. Utilization of his chain of command is a protected
communication per AFI 90-301, Inspector General Complaints
Resolution. The loss of supervisory responsibilities
constituted adverse personnel action as defined in DoDD
7050.06, Military Whistle Blower Protection. This loss was a
significant change in duties, and it relieved him of
responsibilities that were consistent with his grade and duty
position.
b. After he made the protected communication the 15 Nov 03,
records show the reprisal in that he no longer supervised any
officers.
c. His subsequent OPR was unjust. As the Chief of Weapons
and Tactics, section III, Job Description, Item 2 Key
Duties did not reflect supervision of personnel as would be
expected of his rank and duty position. The OPR had an unjust
impact and caused a non-selection.
5. In addition to making a protected communication to his
chain of command, he also made a protected communication to the
Inspector General (IG) regarding the squadron leave policy.
a. As a deployed Expeditionary Squadron Commander, he learned
of a unit policy that prohibited members from taking leave
following return from deployments and compensatory time off.
Specifically, the Squadron Commander implemented a policy that
prohibited members from being on leave from the unit for more
than 14 days. AFI 36-3003, Military Leave Program, states in
part, Give members the opportunity to take at least one leave
period of 14 consecutive days or more every fiscal year
(FY). He thought the squadron policy deviated from the AFI
guidance, so he inquired about the policy.
b. In response to his query, the DO explained the rationale
for the policy in an email in which he stated he would not
sign off on the idea that members take their comp time and
then follow that with leave. In his mind, that was double
dipping.
c. Following the DO email, he contacted the Squadron
Commander. The commander said this was also his policy, and he
added that he personally believed it sent a message that members
aren't important in the unit if they are allowed to be gone for
more than 14 days. Since members were permitted compensatory
time following deployments, he would not let them go on leave
afterwards even when members weren't needed for military
necessity.
d. Upon learning the Squadron DO denied leave for an enlisted
member because of this 14-day policy and in violation of AFI
36-3003, He filed a third-party Inspector General Complaint on
behalf of the enlisted member.
(1). He obtained a copy of the IG case files through a
Freedom of Information Act request.
(2). The case files reflected the IG sent a letter
regarding the complaint to his additional rater on 3 Feb 04.
(3). The letter had sufficient details to identify him as
the complainant.
(4). His rater signed his OPR three weeks after learning
of the IG complaint.
6. Professional Military Education courses teach members that
the first and last lines of rater comments on an OPR are
considered to be the most important. On his 9 Dec 2003 OPR,
the rater leads off his last line with "Outstanding
professional. The additional rater follows in his first line
with Outstanding results-oriented professional with a capital
P. The additional rater's last line also included the
comments "Top all-around officer and excels in all tasks.
While these phrases had positive words, they were notably
absent of any stratification and conveyed poor performance.
7. As a graduated Squadron Commander and Deputy Group
Commander, his primary duties included reviewing OPRs and
providing feedback/counseling regarding reports to the 12
Squadron Commanders in his Group. He also wrote, reviewed, or
edited all of the Groups promotion recommendation forms
(PRFs) for the officers who were meeting promotion boards for
Major, Lieutenant Colonel, and Colonel. Having written or
reviewed hundreds of OPRs in this role, he could say from
experience that an additional rater who uses no stratification
and instead characterizes the officer as a "Top all-around
officer" who "excels in all tasks" has clearly indicated the
lowest performing officer.
8. Including language to indicate he was at the lowest levels
of officer performance is unjust given the contrast to his
documented performance throughout the reporting period. The
non-selection for promotion is evidence of the impact and
injustice resulting from the combination of reprisal and
factual errors.
9. The subject OPR closed out on 9 Dec 2003 and erroneously
showed 365 days of supervision in block 6. On 11 Dec 02, he
was assigned to another squadron and was enrolled in two
formal training courses. He remained in that squadron until May
2003. Although his training report cites 23 May 03 as the end
of training, administrative issues with the permanent change
of assignment (PCA) delayed his arrival to his current squadron
by approximately 5 days. The PCA occurred 169 days into the
reporting period.
a. Three months after his arrival he received orders to
deploy to a remote base in Pakistan. He departed on 2 Sep 03
and returned 102 days later on 13 Dec 03. During this extended
temporary duty (TDY) he served as an Expeditionary Squadron
Commander, and was supervised by and reported directly to the
Expeditionary Operations Group Commander.
b. The rater who signed the subject OPR remained at home
station. The TDY was more than 30 consecutive days where he
did not perform duties under the supervision of the rater, and
the TDY was not normally part of his duties (such as those of
an inspection team member as listed in the AFI), the 102 days
of TDY should have been deducted from the supervisory period
lAW AFI 36-2406.
c. Records show the rater had a maximum of 94 days of
supervision instead of the 365 days indicated on the subject
OPR. Thus, the rater did not have the requisite 120 days of
supervision to write his OPR. The OPR is factually incorrect
and should be removed from his records.
10. The second factual error on his OPR relates to his
distinguished graduate (DG) status from the Joint Firepower
Course (JFC). The JFC recognized the top three graduates as
DGs based upon academic merit. He contacted the JFC and found
they did not identify the ranked order of the three
distinguished graduates. The subject OPR erroneously lowered
the stratification of his performance by indicating he was #3
out of 45. It was incorrect as it excluded that he
finished the course as either #1 or #2 of 45 graduates.
His sustained record of performance demonstrates he would have
been selected during the CY04 board except for the reprisal.
Additionally, he arguably would have received a definitely
promote (DP) from his senior rater on the CY04 board. His CYO5
Promotion Recommendation Form (PRF) was written by the same
senior rater and assigned a DP rating. Had his 2003 OPR not
included factual errors or reprisal, his record would have been
more competitive and he may have received a DP rating. As a
minimum, his record did not receive fair consideration during
the CY04 PRF process or the CY 04 selection board.
The applicants complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
According to documents extracted from his Military Personnel
Record (MPR) the applicant is a former commissioned officer of
the Regular Air Force. He retired on 1 May 2012 and was
credited with 20 years, and 16 days of active service for
retirement.
On 25 January 2004, the applicant filed an IG complaint via an
AF IMT 102, Inspector General Personal and Fraud, Waste and
Abuse Complaint Registration, as a third party, on behalf of a
member of his squadron. The complaint alleged improper leave
denial. He alleged that the squadron DO violated the rights of
the member by denying her right and entitlement to take leave
under the provisions of AFI 36-3003.
On 28 June 2004, the Nellis Air Force Base IG responded to the
applicant that after a thorough review and analysis of his
complaint, they determined the squadron leave issue was being
handled correctly and the policy was in accordance with AFI 36-
3003. They informed the applicant that as his complaint
concerned a third party issue, they could not address specific
circumstances to him; however, the third party could pursue
their individual issues directly with the IG. They advised the
applicant if he personally experienced difficulty with any leave
policies, to please feel free to contact them once again. They
thanked him for submitting his concerns through the IG complaint
channels.
On 5 November 2008, the applicant filed an IG complaint (Exhibit
C - WITHDRAWN) with the Secretary of the Air Force IG (SAF/IG)
and presented numerous allegations against his squadron of
assignment. The complexity of the complaints required two
separate Major Command IG investigations. Headquarters Air
Combat Command (ACC) and Headquarters Air Force Material
Command (AFMC) IG offices independently investigated his
complaints.
a. The specific allegations considered by ACC/IG are as
follows:
(1XXXXXXXXXX. NOT SUBSTANTIATED.
(2). XXXXXXXXXX. SUBSTANTIATED.
(3). XXXXXXXXXX. NOT SUBSTANTIATED.
b. The specific allegations considered by AFMC/IG are as
follows:
(1). XXXXXXXXXX. NOT SUBSTANTIATED.
(2). XXXXXXXXXX. NOT SUBSTANTIATED.
(3). XXXXXXXXXX. NOT SUBSTANTIATED.
(4). XXXXXXXXXX. NOT SUBSTANTIATED.
(5). XXXXXXXXXX. NOT SUBSTANTIATED.
(6). XXXXXXXXXX. NOT SUBSTANTIATED.
(7). XXXXXXXXXX. NOT SUBSTANTIATED.
(8). XXXXXXXXXX. NOT SUBSTANTIATED.
(9). XXXXXXXXXX. NOT SUBSTANTIATED.
(10). XXXXXXXXXX. NOT SUBSTANTIATED.
c. On 22 December 2009, The Complaints Resolution Directorate,
Office of The Inspector General, Secretary of the Air Force
(SAF/IGQ) sent the applicant a letter which stated they
reviewed the reports from ACC/IG and AFMC/IG and concurred with
their findings. Command action was taken to remedy the one
substantiated allegation and the matter was closed.
d. The applicant appealed to SAF/IGQ and stated that ACC/IG
only investigated three allegations and did not include his
allegation of XXXXXXXXXX as well as the inclusion of subsequent
information that was not available during the investigation.
e. In their 23 March 2010, response, SAF/IGQ conveyed to the
applicant that two independent commander-directed investigations
(ACC and AFMC) reviewed all of his allegations and both
independently came to the same conclusion. They reiterated the
SAF/IGQ case closure letter (22 Dec 09), para 3, stated the
allegation that XXXXXXXXXX was found to be not substantiated.
f. It was their determination XXXXXXXXXX These findings also
received a legal review which found the determination to be
legally sufficient. Therefore, further investigation of
XXXXXXXXXX was not warranted.
They advised the applicant if he had additional information that
was not available during the ACC and AFMC investigations, he could
direct this information to the ACC/A8 Director and 303
Aeronautical Systems Wing, respectively, for reconsideration.
They considered the appeal of this matter closed.
________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSID recommends denial of the applicant's request to
remove the contested OPR. DPSID states they do not believe the
applicant provided sufficient substantiating documentation or
evidence to prove his allegation of two factual errors. One
error being that the rater did not have the required minimum of
120 days of supervision to write the report and the second error
being that he should have been ranked #1 or #2 graduate from
the Joint Firepower Course, as opposed to #3 of 45 graduates as
written on the contested OPR.
a. Regarding the error that the rater did not have the
required minimum of 120 days of supervision to write the
report, the applicant provides as evidence his own words of the
sequence of events which he believes should have been deducted
from the 365 days of supervision. However, the applicant
merely provides an Air Form 475, Education/Training Report which
accounts for the applicant's absence while attending a formal
course for a total of 12 weeks. The remainder of the 243 days
appears to be valid as the applicant provided no proof that any
additional days should have been deducted from the contested
rating period. They were unable to determine the authenticity
of the travel voucher, and without a copy of an official
Contingency Exercise Deployment (CED) order, it is impossible
to make a sound determination on the applicant's claim.
b. Regarding the error that the applicant should have been
ranked #1 or #2 graduate from the Joint Firepower Course, as
opposed to #3 of 45 graduates as written on the contested OPR,
the applicant provided absolutely no evidence that the ranking
was incorrect. The applicant has merely provided his own
personal opinions, unsupported allegations, and absolutely no
proof that these events are accurate as described; as such,
they dismiss this allegation and find it to be without merit.
c. In addition, the applicant alleged that the rater engaged
in reprisal action against him and removed him from supervisory
responsibilities after he refused to write an OPR on a
subordinate for which he did not have the required number of
days of supervision as required per AFI 36-2406. Again, the
applicant has provided no proof in this case to substantiate
that the rater reprised against him or that he may have been
removed from supervisory responsibilities for cause. The burden
of proof is entirely on the applicant.
d. The applicant claimed the contested OPR was inconsistent
with his subsequently written OPR. AFI 36-2401, paragraph
A1.5.2, states ratings are not erroneous or unjust because they
are inconsistent with other ratings the applicant has received.
In this case, they contend, the applicant's rating chain simply
made a determination as to what was relevant information
regarding the applicant's duty performance and promotion
potential during this contested rating period and properly
documented that performance on the contested OPR. It is also
not up to the applicant to determine that a stratification
comment should have been reported on this OPR, but rather it is
the rating chain's responsibility to make that determination as
inclusion of stratification comments are not mandatory for
mention. The applicant did not provide proof that it was or
was not the evaluators direct intentions in omitting
stratification comments during this rating period.
e. AFI 36-2401, Paragraph A1.3, states the most effective
evidence consists of statements from the evaluators who signed
the report or from other individuals in the rating chain when
the report was signed. However, statements from all of the
evaluators during the contested period are conspicuously
absent. Without the benefit of these statements, they can only
conclude that the OPR is accurate as written. Such evidence
from the rating officials could have shed light on these
matters; as such, they do not see any valid justification, as
presented by the applicant, which would justify removal of this
contested OPR from his permanent evaluation record. The
applicant failed to provide any information or explanation from
the rating chain of record on the contested evaluation
f. In the absence of information from evaluators, official
substantiation of an error or injustice from the Inspector
General or Military Equal Opportunity & Treatment is
appropriate, but not provided in this case. The applicant did
provide what appears to be an official IG complaint; however,
it pertained to resolved leave issues in which the applicant was
made aware that the squadron leave was handled correctly; but
there was nothing that addressed the reprisal action or
indicated that any adverse personnel action was taken against
the applicant. In consideration of the sum of evidence
provided, there is no valid basis in which they could support
removal of the OPR as written.
The complete AFPC/DPSID evaluation is at Exhibit D.
AFPC/DPSOO recommends denial. DPSOO states based on the
evidence provided, they do not support a change to the
applicant's dates of rank to the grades of Lt Colonel and
Colonel.
a. In Feb 05, the applicant requested his nonselection from
the CY04B Lt Colonel board be removed and that he be allowed to
meet the CY05A Lt Colonel board as an IPZ eligible. The
applicant, at that time, contended that he had insufficient
time on active duty to build a competitive record for promotion
to Lt Colonel. He only had 18 months on active duty; the first
6 months were spent in training and the next 5 months on
contingency TDY orders in addition to completing IDE via
correspondence. Additionally, his unit had extensive home-based
mission requirements and supported continuous combat flight
operations with only two scheduled down days in the past two
years. Due to training and deployments, he was unable to
complete his advanced degree and was therefore, not competitive
for promotion. At no time did the applicant mention the OPR
that was on file for the board. The applicant's request was
approved.
b. Based on the applicants DOR to Lt Colonel, 1 Apr 06, he
met the CY10C Colonel CSB which convened on 8 Nov 10. He was
selected for promotion with a DOR of 1 Oct 11.
c. The applicant voluntarily retired 1 May 12 prior to
having the required three years time-in-grade to retire as a
Colonel. Had the applicant been selected for promotion to Lt
Colonel by the CY04B CSB and met the CY09D Colonel CSB as an
IPZ eligible, his DOR to Colonel would have been 1 Sep 10. The
applicant still would not have had sufficient time-in-grade to
retire as a Colonel.
The applicant felt the reason for his nonselection was due to
having insufficient time to complete his advance degree and not
his OPR and he was granted relief because of that reason.
Since he was promoted to both Lt Colonel and Colonel with the
OPR on file, there is no evidence that it caused his
nonselection in 2004.
The complete AFPC/DPSOO evaluation is at Exhibit E.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
In his response, the applicant reiterated his contentions and
indicated he considered the Air Force evaluations to be
factually incorrect on certain points.
a. He stated it was not reasonable for AFPC/DPSID to
falsely state he failed to provide evidence. It was factually
incorrect to repeatedly assert throughout the advisory opinion
that he only provided as evidence his own words, he provided no
proof, he merely provided his own personal opinions and he
provided absolutely no evidence. Repeatedly and falsely stating
that no evidence existed is unjust in that it might bias any
reader into believing that he did not submit any evidence. He
requests the Board review the submitted records for relevance,
consistency with his assertions, and credibility toward the
facts in question.
b. Additionally, in an effort to characterize the effects of
the injustice he suffered from the OPR, he asserted that he did
not receive fair consideration during the PRF process due to
the injustice. Specifically, he stated, had his 2003 OPR not
included factual errors or reprisal, his record would have been
more competitive and he may have received a Definitely Promote
rating. It was not reasonable to conclude these statements
constituted a request to alter the PRF. However, multiple
comments, entire paragraphs, and the DPSID concluding
recommendation centered on the erroneous foundation presuming he
requested alteration of the PRF to a Definitely Promote rating.
DPSIDs opinion groups the lack of evidence relating to PRF
changes and summarizes them as applying to the request to void
the subject OPR as well. Thus, the entire content of the DPSID
recommendation paragraph is misleading and might unfairly bias
the Board when considering the merits of the application.
c. DPSOO's opinion appears to be based, at least in part, on
the erroneous belief that he had previously argued in the 2005
appeal that his record was not competitive. Had he actually
argued as such, their opinion might be valid, however, the
evidence submitted substantiated that was not the case. He
strongly argued the competitiveness of his record. This should
not preclude the Board considering the requested remedy on his
current appeal.
d. It is difficult for him to fully describe the entire set
of circumstances in existence in 2005 that prevented him from
pursuing an IG complaint of reprisal in order to contest the
OPR at the time. If the Board feels this matter is relevant,
he would ask for an opportunity to appear before the Board to
interactively examine the facts, circumstances, and his
perceptions in order to determine if the course he took was
reasonable given the situation. Circumstances led him to
believe the pursuit of corrective action to the subject OPR
might bring risk of reprisal, and was therefore not an
available option. He believes the evidence supports that
this was a reasonable course of action and in the interest of
justice the Board should find in his favor to consider the
requested remedy.
The applicants complete response, with attachments, is at
Exhibit G.
________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by
existing law or regulations.
2. The application was not timely filed; however, it is in the
interest of justice to excuse the failure to timely file.
3. Insufficient relevant evidence has been presented to
demonstrate the existence of error or injustice. We took
careful notice of the applicants complete submission pursuant
to Title 10, United States Code, Section 1552 (10 USC § 1552) in
support of his requests and the evidence of record. The
applicants contention that his contested OPR contains factual
errors, his rater engaged in reprisal, and his sustained record
of performance demonstrated he would have been selected during
the CY04 promotion board except for the reprisal are duly noted;
however, we do not find the evidence provided sufficient to
override the rationale provided by the Air Force offices of
primary responsibility. We also note that the applicant filed
two complaints with the IG; however, one complaint was a third
party complaint and according to the SAF/IG case file, the
applicants complaint did not allege reprisal. While the
applicant alleges that this OPR harmed his promotion
opportunities he has not provided any evidence showing that the
content of the OPR was the sole reason he was not selected for
promotion by the CY04B Lt Colonel promotion board. To the
contrary, the evidence established indicates the applicant's
records, including the contested OPR, were considered for
promotion by the CY05A Lt Colonel and CY10C Colonel Selection
Boards and he was selected for promotion in both instances. The
applicant has not provided evidence to persuade us to the
contrary and we agree with the opinions and the recommendations
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.
Therefore, in the absence of persuasive evidence to the
contrary, we find no basis to recommend granting the relief
sought in this application.
4. The applicant alleges he has been the victim of reprisal.
By policy, reprisal complaints must be filed within 60 days of
the alleged incident or discovery to facilitate the IGs
investigation. As mentioned above, we note the applicant filed
two IG complaints; however, the available record does not
substantiate that either of the complaints filed alleged
reprisal and it appears no investigation for reprisal was done.
Nevertheless, we reviewed the evidence of record to reach our
own independent determination of whether reprisal occurred under
the provisions of 10 USC § 1034. We note the applicants
contentions but based on our review of the evidence presented,
we do not conclude that he has been the victim of reprisal.
5. 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 this application
in Executive Session on 21 February 2013, under the provisions
of AFI 36-2603 and the authorities found in 10 USC Sections 1034
and 1552:
, Chair
, Member
, Member
The following documentary evidence was considered in AFBCMR
Docket Number BC-2012-03871:
Exhibit A. DD Form 149, dated 26 August 2012, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. IG Complaint dated 22 December 2009 (withdrawn).
Exhibit D. Letter, AFPC/DPSID, dated 17 September 2012.
Exhibit E. Letter, AAFPC/DPSOO, dated 18 October 2012.
Exhibit F. Letter, SAF/MRBR, dated 21 December 2012.
Exhibit G. Letter, Applicant, dated 3 Jan 2013, w/atch.
Chair
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Available documentation reflects that: On 9 March 1997, the applicant filed a complaint with the Secretary of the Air Force (SAF/IGQ) alleging the squadron commander reprised against him for a protected disclosure by removing him from his lieutenant colonel position in the squadron and reassigning him to a captain’s position in the group. Applicant’s complete statement, with attachments, is at Exhibit G. By letter dated 19 October 1999, applicant provided the results of his request for a...
AF | BCMR | CY2013 | BC 2013 04108
In an email dated 27 August 2012, the IO stated he was a witness in the CDI rather than a subject. In a letter dated 11 October 2012, the applicant received a LOR for having an unprofessional sexual relationship with another squadron commander. As a result of a complaint received from the husband of the FSS/CC that his wife was having an affair with the applicant while both were deployed; on 24 August 2012, the FSS/CCs commander appointed an IO to investigate four specific allegations as...