RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-00799

						COUNSEL:  

						HEARING DESIRED:  YES 



APPLICANT REQUESTS THAT:

1.  The Letter of Reprimand (LOR) dated 28 Nov 11, be removed 
from his military personnel record, as well as all references to 
it.

2.  The referral Officer Performance Report (OPR) rendered for 
the period of 1 Jun 11 thru 14 Mar 12, be declared void and 
removed from his record.

3.  He be restored to his original date of rank (DOR) and place 
on the promotion list to major (O-4).


APPLICANT CONTENDS THAT:

He unjustly received an LOR for failing to advise a senior 
officer on board an aircraft, that a particular aeronautical 
maneuver the senior officer wished to perform might be 
questionable.  The allegations contained in the LOR, were that 
as Mission Commander (MC), he allowed a barrel roll to take 
place without objecting, allowing the aircraft to be operated 
outside its operating capabilities in violation of the AFI and 
the aircraft’s operating manual.  At the time of the incident, 
there was a lack of a technical order for the MC-12W, and 
therefore no written or other guidance from the leadership of 
the unit concerning which particular maneuvers were authorized.  
While the applicant was the MC, on this flight, the senior 
pilot, in his instructor capacity, had the legal authority to 
take command or trump any decisions he saw fit, rendering him at 
all times in charge of the aircraft.  The findings of two Flight 
Evaluation Boards (FEBs) reached similar conclusions regarding 
the incident in question, that a barrel roll did not take place, 
but rather a maneuver similar to an instrument aileron roll was 
performed.  Based on a referral letter of evaluation from the 
commander at his deployed location, he received a referral OPR 
when he returned to his home station.

This was an isolated incident, not repeated, and without injury, 
death, or loss of property.  His record both before this 
incident, and during his subsequent two years of service has 
been exemplary.  It would be a loss to the Air Force if the OPR 
or any references to the LOR remain in place, as they would 
permanently affect his ability to serve in the Air Force.

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


STATEMENT OF FACTS:

The applicant was serving in the grade of captain (O-3) during 
the period of time in question.  

On 18 Nov 11, the 4th Expeditionary Reconnaissance Squadron (ERS) 
Commander at Bagram Air Base initiated a Commander Directed 
Investigation (CDI) into all aspects of the facts and 
circumstances concerning prohibited flight maneuvers engaged in 
by members of the squadron while flying the MC-12.

Allegation #1: Were prohibited flight maneuvers performed by 
members of the 4th Expeditionary Reconnaissance Squadron (4ERS).

Analysis/Conclusion:  A preponderance of the evidence existed to 
show that members of the 4 ERS engaged in Barrel Rolls, a flight 
maneuver prohibited, on at least three occasions.  Therefore, 
this allegation was substantiated.

Recommendation:  All officers demonstrated a breakdown in 
judgment, airmanship, and basic flight discipline.  The 
applicant should receive an LOR for failing to intervene.

On 28 Nov 11, the applicant received an LOR based on the 
findings of the CDI.  The specific event occurred on 26 Oct 11, 
during a flight while deployed to Afghanistan.  The applicant 
used poor judgment when he failed as aircraft commander to 
intervene and tell another pilot to stop performing a prohibited 
aerobatic maneuver in a MC-12 aircraft.  

On 29 Nov 11, the applicant submitted a response to the LOR, 
accepting full responsibility for his actions and the conduct of 
the flight and crew.

On 8-9 Feb 12, an FEB for the pilot in question convened and 
considered all the evidence presented to it, in closed session 
and found he DID exhibit a lack of judgment on 11 Sep 11, 22 Sep 
11 and 26 Oct 11, by accomplishing or allowing to be 
accomplished rolling maneuvers, a full 360 degrees of roll, in 
the MC-12W, similar to the instrument aileron roll described in 
AFMAN 11-217V1, Instrument Flight Procedures; DID NOT 
intentionally disregard instructions, regulations or procedures 
while accomplishing or allowing to be accomplished these rolling 
maneuvers on 11 Sep 11, 22 Sep 11 and 26 Oct 11.  The FEB noted 
the evidence presented during the FEB indicates incomplete, 
confusing and contradictory MC-12W guidance.  While a roll was 
not specifically prohibited by existing guidance, the aircraft 
was not certified for aerobatics; and while there were many 
benefits to rapid procurement and employment of the MC-12W to 
operations in Afghanistan, the existing written guidance in the 
POH did not address the tactical employment requirements of the 
MC-12W.  Lastly, the FEB noted a Dash 1 technical order had not 
been published.  The FEB stated that although the pilot executed 
poor judgment on three separate dates, they considered this one 
event and recommended he be retained in aviation service due to 
his otherwise sound aviation record.  

On 12 Apr 12, the applicant received an OPR rendered for the 
period of 1 Jun 11 through 14 Mar 12, on which was marked “Does 
Not Meet Standards” in performance factors area #5 (Judgment and 
Decisions) which made his OPR a referral.  His rater stated in 
section IV (Rater Overall Assessment) that “As MC-12 MC, allowed 
pilot to perform in-flight maneuver violating current Pilot 
Operating Handbook, rec’d LOR.”  The rater further stated in 
section XI (Referral Report) “my rating of ‘Does Not Meet 
Standards’ in sections III and IX, as well as my comments in 
section IV pertaining to your lack of judgment while deployed to 
Afghanistan in the MC-12.”

The applicant’s OPR profile is listed below:

			PERIOD ENDING		OVERALL EVALUATION
			 31 May 10		Meets Standards (MS)
			 31 May 11			MS
			*14 Mar 12	   Does Not MS
			 30 Nov 12			MS
			 30 Nov 13			MS
			 26 Aug 14			MS

On 7 May 12, the applicant submitted a response to the referral 
OPR, bearing responsibility for his actions on 26 Oct 11.  He 
did not file an appeal through the Evaluation Report Appeals 
Board (ERAB).

On 10 Aug 12, the applicant’s commander issued him an AF Form 
4363, Record of Promotion Delay Resolution, that approved his 
promotion delay termination with his effective DOR adjusted to 
10 Aug 12 

On 16 Oct 12, according to special order JB-005061, the 
applicant was promoted to the grade of major, with a DOR and 
effective date of 10 Aug 12.

On or about 30 Jan 14, the applicant applied for voluntary 
separation under the 2014 Fiscal Year (FY) Force Management 
Voluntary Separation Pay (VSP) Program.

On 10 Apr 14, the applicant’s request was approved for 
26 Sep 14, the date that he requested.

On 26 Sep 14, the applicant was furnished an honorable 
discharge, and was credited with 12 years, 3 months, and 28 days 
of active service.

The remaining relevant facts pertaining to this application are 
contained in the memorandum prepared by the Air Force offices of 
primary responsibility (OPR), which are attached at Exhibits C, 
D, E, and F.    


AIR FORCE EVALUATION:

AFPC/DPSIM recommends denial of the applicant’s request to 
remove the LOR.  DPSIM states that they cannot speak to whether 
or not the commander’s actions were just or not; at most they 
can only discuss if proper procedures were followed in the 
administration of the action.  Since the LOR that the applicant 
provided was incomplete, the OPR cannot determine when the 
applicant acknowledged the LOR, or the commander’s final 
decision.  After careful review, they determined the evidence 
presented was incomplete.  This doesn’t mean that it was not 
completed properly; it simply means they cannot determine if it 
was completed properly.  Therefore, they cannot support 
recommendation for relief to this claim.  Finally, the Special 
Programs Branch defers recommendation of the removal of the OPR 
to the Officer Evaluations Branch.

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

AFPC/DPSID recommends denial of the applicant’s request to void 
the contested OPR, indicating there is no evidence of an error 
or an injustice.  In accordance with AFI 36-2406, Officer and 
Enlisted Evaluation Systems, evaluators are strongly encouraged 
to comment in performance reports 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.  The rating 
chain appropriately chose to comment and document on the 
underlying wrongdoing, which caused the report to be referred to 
the applicant for comments and consideration to the next 
evaluator.  The applicant provided no evidence within his case 
to show that the referral comment on the OPR was inaccurate or 
unjust; therefore, the inclusion of the referral comment on the 
OPR was appropriate and within the evaluator’s authority to 
document given the incident.  Moreover, a final review of the 
contested evaluation was accomplished by the additional rater 
and a subsequent agreement by the reviewer/commander served as a 
final “check and balance” in order to ensure that the report was 
given a fair consideration in accordance with the established 
intent of the current Officer and Enlisted Evaluation System in 
place.  Based upon the presumed sufficiency of the LOR as served 
to the applicant, it has been concluded that its mention on the 
contested report was proper and in accordance with all 
applicable Air Force policies and procedures.  Consequently, we 
find this element of the applicant’s appeal to be without merit.

Finally, Air Force policy is that an evaluation report is 
accurate as written when it becomes a matter of record.  
Additionally, it is considered to represent the rating chain’s 
best judgment at the time it is rendered.  Once a report is 
accepted for file, only strong evidence to the contrary warrants 
correction or removal from an individual’s record.  The burden 
of proof is on the applicant.  The applicant has not 
substantiated that the contested OPR was not rendered in good 
faith by all evaluators based on knowledge available at the 
time.

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

AFPC/DPSOO recommends denial of the applicant’s request to 
restore his original DOR to major.  The applicant was selected 
for promotion by the Calendar Year 10D Major Line Central 
Selection Board which convened on 6 Dec 10.  He was scheduled to 
pin-on major on 1 Apr 12.  Since the applicant had received an 
LOR for the actions which resulted in the delay, the approving 
authority to terminate the delay is the Secretary of the Air 
Force (SECAF).  Notwithstanding the Commander’s recommendation, 
the SECAF may promote the officer on the applicant’s original 
DOR, promote the applicant with an adjusted DOR to reflect the 
date on which the applicant met the exemplary conduct standard 
and was ready for promotion to the higher grade (Title 10, 
Section 8583), extend the applicant’s delay or remove the 
applicant from the promotion list.  On 5 Sep 12, SECAF approved 
the termination of the delay with an effective DOR adjustment to 
10 Aug 12, the same date his commander found him qualified for 
promotion and initiated the termination action.  AFI 36-2501, 
Officer Promotions and Selective Continuation, 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.  It should be noted that the reason for the 
delay of promotion was not the LOR but the actions that resulted 
in the initial delay.  

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

AFPC/JA recommends denial indicating there is no evidence of an 
error or an injustice.  In determining whether to issue an LOR, 
a great deal of discretion is vested in the commander or 
supervisor issuing it.  Unlike a military justice action, the 
evidence to support the action need not be based on a “beyond a 
reasonable doubt” burden of proof required for criminal 
prosecutions.  Rather, as an administrative action, the standard 
of proof for an LOR (and referral OPR) is a preponderance of the 
evidence; i.e., that it is more likely than not that the fact 
occurred as alleged.  That standard was clearly met in this 
case.  Moreover, all due process and other requirements for an 
LOR prescribed in AFI 36-2907, Unfavorable Information File, 
were complied with.  The decision to issue the LOR, referral OPR 
and delay in promotion constituted a totally proper and 
appropriate exercise of the commander’s discretion, and the 
applicant has failed to offer any evidence that the decision was 
arbitrary, capricious or an abuse of that discretion.  In 
addition, the decision by the SECAF to adjust the applicant’s 
DOR for promotion to major was likewise a proper exercise of 
discretion which should not now be disturbed by the Board in the 
absence of evidence of abuse of that discretion.

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Through counsel the applicant refutes virtually every point made 
by the OPRs and argues that he does not contend that proper 
procedures were not followed in the administration of the LOR 
and OPR, rather it is the LOR and OPR themselves that are the 
points of contention.  He presented evidence that two FEBs 
independently found that “there was no intentional disregard of 
instructions, regulations or procedures in accomplishing these 
maneuvers.”  If the factual basis for the comment in the LOR or 
OPR are not true or are inaccurate or just, then any reference 
to the basis for the comment must be withdrawn.  Two separate 
FEBs refute the finding of the CDI upon which the LOR and 
subsequent OPR are based.  Even if there was a doubt as to which 
should be given greater weight the CDI or FEBs, the 
preponderance standard would weigh in favor of the two FEBs 
rather than the one CDI.  It is the hope of the applicant that 
the Board will closely consider the overwhelming evidence that 
contradicts, or at the very least calls into question the basis 
for the imposition of the LOR and subsequent OPR.  A failure to 
grant relief will otherwise result in the termination of the 
career of an officer who has great potential for continued 
service to our nation.  


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 an error or injustice warranting 
removal of the Letter of Reprimand (LOR), and restoration of the 
applicant’s date of rank (DOR) and place on the promotion list.  
We took careful notice of the applicant's complete submission in 
judging the merits of the case; however, we do not find the 
evidence provided sufficient to override the rationale provided 
by the Air Force offices of primary responsibility.  Thus, 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 compelling basis 
to recommend granting this portion of the relief sought in this 
application.  

4.  Notwithstanding the above, sufficient relevant evidence has 
been presented to demonstrate the existence of an error or 
injustice with respect to the applicant’s Officer Performance 
Report (OPR).  After a thorough review of the facts and 
circumstances of this case, we believe the applicant has been 
the victim of an injustice.  We note the comments of AFPC/DPSID 
and AFPC/JA, indicating the applicant has failed to sustain his 
burden of proof; however, we believe he has raised sufficient 
doubt regarding the equity and accuracy of the contested OPR.  
In this respect, we note the overall rating of the contested 
report represents a significant regression when compared to his 
performance history both prior and subsequent to the period 
under review.  Additionally, while the applicant was the mission 
commander, he was junior to the co-pilot who requested and 
performed the aerobatic maneuver.  We believe this is an 
isolated incident that would not have occurred but for the 
influence of the lieutenant colonel co-pilot.  We are persuaded 
a preponderance of the evidence supports the contested report is 
not an accurate assessment of the applicant’s performance during 
the period in question.  We believe the Letter of Reprimand 
(LOR) sufficiently addresses administrative action for this 
incident.  Therefore, in view of the above, we believe the 
correction cited below will provide the applicant proper relief 
and as such recommend his records be corrected as indicated.  


THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT be corrected to show that AF 
Form 707, Officer Performance Report (Lt thru Col), rendered for 
the period 1 June 2011 thru 14 March 2012, be declared void and 
removed from his records.




The following members of the Board considered AFBCMR Docket 
Number BC-2014-00799 in Executive Session on 22 Apr 15, under 
the provisions of AFI 36-2603:

	

The following documentary evidence pertaining AFBCMR Docket 
Number BC-2014-00799 was considered:

	Exhibit A.  DD Form 149, dated 5 Feb 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSIM, dated 7 Mar 14.
	Exhibit D.  Memorandum, AFPC/DPSID, dated 6 Nov 14.
	Exhibit E.  Memorandum, AFPC/DPSOO, dated 29 Dec 14.
	Exhibit F.  Memorandum, AFPC/JA, dated 7 Jan 15.
	Exhibit G.  Letter, SAF/MRBR, dated 11 Feb 15.
	Exhibit H.  Letter, Applicant, dated 27 Feb 15, w/atchs.