RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  02-02770
		INDEX CODE 111.01  111.05
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The referral Officer Performance Report (OPR) for the period 23 Nov 99 through 15 Jun 00 be voided.

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APPLICANT CONTENDS THAT:

The markings in Section V do not reflect the performance feedback he received. The 14 Apr 00 performance feedback session was not conducted face-to-face. He was not allowed access to on-going investigation details to allow formal address in his rebuttal to the referral OPR. The OPR references information based on an ongoing investigation, not fact.  These actions occurred prior to Article 32 proceedings and did not occur during the rating period. He was never found to have committed offenses referenced in Section VI.

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

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STATEMENT OF FACTS:

Repeated efforts to obtain the Article 32 Report of Investigation (ROI) were unsuccessful. HQ USAF/JAG confirmed that base documents were either lost or destroyed when McClellan AFB closed. Therefore, the following information is based on official documents provided by the applicant, his military personnel records, and the Air Force Office of Special Investigations (AFOSI) ROI dated 15 Aug 00:

The applicant entered extended active duty on 22 Mar 84. He is currently serving in the grade of major with a date of rank (DOR) of 1 Feb 96 and is assigned as a plans branch chief at Langley AFB, VA. 

The applicant’s OPRs from 26 Dec 87 through 20 Aug 01 reflect he met all performance standards, with the exception of the referral OPR for the period 23 Nov 99 through 15 Jun 2000 and which is discussed in further detail below. 

The applicant was considered below-the-promotion-zone (BPZ) for lieutenant colonel (LTC) by the Calendar Year 1998B (CY98B) and CY99A LTC Selection Boards, but was not selected.  

During the period in question, the applicant was the mission systems flight commander assigned to the 77th Communications Squadron at McClellan AFB, CA from 12 Nov 99 until 18 May 00. His rater typically was the 77th Communications Squadron Commander. However, when he was removed from his position as mission systems flight commander, he was made special assistant to the 77th Support Group commander, who was the rater for the contested OPR. 

According to statements made by the officer who was the 77th Communications Squadron Commander during 31 Mar 97 – 1 Jul 98, he ordered an internal (social actions and security forces) investigation based on allegations that the applicant made an insensitive comment to a formerly-pregnant female airman and had patted the rump of another female airman.  The former squadron commander indicated he found no evidence of sexual harassment or impropriety and viewed this as an isolated incident. He indicated he gave the applicant a Letter of Counseling (LOC) as a warning.

On 9 Dec 99, the 77th Support Group Commander appointed an investigating officer (IO) to conduct a Commander’s Investigation into allegations of the applicant’s improper conduct and unprofessional relationships while attending an off-base party at the home of two enlisted personnel. The investigation was conducted from 9 to 29 Dec 99. The IO concluded that the applicant’s physical contact with a female airman was not sexual in nature. Two underage airmen were drinking and others in attendance were aware of underage drinking and that the applicant took no action. The applicant claimed he did not know the punch they were drinking contained alcohol.  

On 11 Jan 00, the group commander gave the applicant a Letter of Reprimand (LOR) for unprofessional conduct, poor judgment and allowing two under-age airmen in his Flight to drink alcohol during a non-official party on 20 Aug 99, and that he subsequently established an unprofessional relationship with a female airman. The group commander also referred to statements the applicant made to the investigating officer. The applicant provided a rebuttal on 18 Jan 00. The LOR was filed in his Unfavorable Information File (UIF). However, on 9 Feb 00, the group commander decided not to file the LOR in the applicant’s Officer Selection Record (OSR).

On 6 Mar 00, the applicant was advised that he had been selected for LTC in-the-promotion-zone (IPZ) by the CY99B Board, which had convened on 30 Nov 99. The PRF for that board reflected an overall recommendation of “Promote.”  His promotion was to become effective on 1 Jul 00.

On 14 Apr 00, AF Form 724A, “Performance Feedback Worksheet,” on the applicant was signed by the rater (77th Support Group Commander). [A copy provided by the applicant is at Exhibits A and E.]  

On 9 May 00, an AFOSI investigation was initiated based on allegations from an airman first class (A1C) that she had observed the applicant and her friend, another A1C, engaged in sexual intercourse sometime in Aug 99. Further investigation revealed that a female staff sergeant (SSgt) and the applicant had engaged in consensual intercourse on three separate occasions, and that the A1C, the applicant, and other witnesses had previously withheld this information during an internal inquiry conducted by the 77th Support Group vice commander in Dec 99. The A1C’s statements were not forthcoming, sometimes contradictory, and she denied consensual sexual contact. The SSgt admitted to consensual sexual intercourse with the applicant. Witnesses indicated the applicant frequently visited the dormitories at late hours, including bringing alcohol and entering the rooms, and frequently socialized and drank heavily at dormitory parties and other non-official events. There were also some indications and implications that the applicant may have asked or implied that certain individuals should not discuss rumors or reveal information.

On 11 May 00, the group commander removed the applicant from command and issued a no-contact order regarding anyone currently or previously assigned to the 77th Communications Squadron.

On 12 May 00, the rater informed the applicant that his promotion to lieutenant colonel was delayed pending the outcome of the ongoing AFOSI investigation regarding allegations of fraternization, unprofessional conduct, providing alcohol to minors, obstruction of justice, and making false official statements.  The letter also indicated the rater’s understanding that the applicant had a copy of the investigation that took place during 9-29 Dec 99 involving some similar issues. The rater stated he would provide the applicant a copy of the investigation if the applicant had misplaced his copy. The applicant provided a rebuttal on 18 May 00

On 18 May 00, the applicant was removed from his flight commander position and assigned to the 77th Support Group commander as special assistant.

On 22 Jun 00, the contested OPR was referred to the applicant.  Section V, Performance Factors, reflects he did not meet standards in Leadership Skills, Professional Qualities and Judgment and Decisions. The rater remarked that the applicant had been relieved from command as a result of information indicating he made false official statements during a fraternization investigation (of which he was the subject), had failed to enforce underage airman drinking standards, and had surrendered his integrity. The rater also indicated that performance feedback was accomplished on 14 Apr 00. The applicant provided a rebuttal dated 30 Jun 00, claiming in part that he had not seen the final investigative report nor been provided any evidence from this investigation. The additional rater (who was also the reviewer) considered the applicant’s rebuttal but agreed with the rater.

On 11 Aug 00, the AFOSI concluded its investigation.  The applicant, on advice of his ADC, had not provided a statement.

Pursuant to a request by the applicant’s ADC, the wing commander cited a number of the applicant’s contributions in a 16 Aug 00 statement but added that he was the official responsible for review of the Article 32 investigation and supported the applicant’s removal from command due to serious allegations. 

An Article 32 investigation apparently was conducted/completed around this timeframe; however, as indicated above, the ROI is not available.

On 22 Aug 00, the applicant was advised that his promotion to LTC was delayed for six months until 1 Jan 01.

On 24 Oct 00, the vice commander of Ogden Air Logistics Center served the applicant with an Article 15 for the following offenses:  (1) acting unprofessionally on or about 1 and 31 Aug 99 by pulling a female airman’s shirt over her head at a party without her consent and participating in party games with sexual connotations; (2) acting unprofessionally during an intramural football game on 22 Oct 99 by shouting obscenities at an female senior airman and grabbing her arm; (3) fraternizing with a SSgt from about 1 Aug to 30 Sep 99 by engaging in sexual intercourse; and (4) fraternizing with enlisted members of his unit from about 1 Jun to 10 Nov 99 by supplying and consuming alcohol with them, socializing with them in the dormitories and other not-official social gatherings. Punishment was forfeiture of $2,379.00 in pay for two months and a reprimand. The applicant’s appeal was denied and the Article 15 was filed in his UIF and OSR.

As a result of the Article 15, the applicant’s commander initiated removal action from the CY99B selectee list. The case was found legally sufficient on 22 May 01 by the General Counsel for the Secretary of the Air Force (SAF).  On 11 Jun 01, the SAF directed the applicant’s name be removed from the promotion list. 

The applicant was considered but not selected by the CY01B and CY02B boards. The PRFs had overall recommendations of “Do Not Promote” and “Promote” respectively.

On 31 Jul 02, the Evaluation Reports Appeal board (ERAB) denied a similar appeal submitted by the applicant.

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AIR FORCE EVALUATION:

HQ AFPC/DPPPEP asserts that regardless of how the feedback was communicated to the applicant, it is not grounds to void the OPR. Per the governing directive, feedback issues will not, of themselves, invalidate any subsequent OPR.  The AFI warns raters to be cautious when using information from an ongoing investigation, but does not prohibit it.  The rater must make the judgment as to whether information gathered in the investigation up to that point is reliable and supported. The applicant acknowledges that the rater and additional rater had access to the investigation details necessary to make a determination of reliability. Further, an event which occurred before the rating period cannot be used unless it adds significantly to the evaluation report and has not been previously reported. The conduct leading to the referral statements certainly meets this criterion.  Although the event itself may have occurred in a previous reporting period, discovery of the event and the investigation occurred during the rating period.  The applicant has not provided convincing evidence to show the evaluation is either erroneous or unjust. Denial is recommended.

A complete copy of the evaluation, with attachment, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends no formal feedback took place, nor was there any counseling or formal Record of Individual Counseling.  He claims he was not allowed access to the investigative results as of the OPR closeout. Thus, he was unable to submit any rebuttal. All the derogatory information included in the contested report was based on an on-going investigation. The alleged behavior occurred in a previous reporting period when he was not in a leadership position. However, he was never found guilty of making false official statements or failing to enforce underage drinking standards.  

The applicant’s complete rebuttal, with 13 attachments, is at Exhibit E.

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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 and applicant’s submission, we are not persuaded that relief is warranted. The applicant’s contentions are duly noted; however, we do not find these uncorroborated assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force. The applicant’s submission has not demonstrated that the OPR, and the actions taken against him, are erroneous, unjust, or unconfirmed by the available evidence. Feedback issues do not inherently invalidate an OPR, and the applicant has not shown that the basis of the rating chain’s judgment was not supportable or unreliable. We therefore agree with the recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of having suffered either an error or an injustice. In view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought. 

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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.

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The following members of the Board considered this application in Executive Session on 7 January 2003 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number 02-02770 was considered:

   Exhibit A.  DD Form 149, dated 26 Aug 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPEP, dated 24 Sep 02, w/atch.
   Exhibit D.  Letter, SAF/MRBR, dated 4 Oct 02.
   Exhibit E.  Letter, Applicant, dated 31 Oct 02, w/atchs.