RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03181
		INDEX NUMBER:  131.00; 111.00
	XXXXXXX	COUNSEL:  
	XXXXXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered on him for the period 14 Jun 99 through 13 Jun 00 be removed from his records.

The letter of reprimand (LOR), dated 2 Jun 00, and the associated unfavorable information file (UIF) be removed from his records.

The Promotion Recommendation Form (PRF) prepared on him for the Calendar Year 2001A (CY01A) Central Major Promotion Selection Board be removed from his record.

The letter he submitted to the CY00B Central Major Promotion Selection Board be removed from his Officer Selection Record.

It appears that he is requesting promotion consideration to major by Special Selection Board (SSB) beginning with the CY00B Central Major Selection Board.

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APPLICANT CONTENDS THAT:

In a 15-page brief of counsel, applicant’s counsel provides the details of the events that led to the actions the applicant is contesting.  

A complaint by the applicant’s ex-spouse to his commander he was not making court ordered child support payments eventually led to an incident between the applicant and the commander resulting in the applicant receiving an LOR for alleged misconduct.  

The applicant was justified in his actions toward the commander based on the circumstances and his belief that he was in imminent danger.

The applicant had provided evidence to the commander he was making his child support payments and the commander indicated the matter was closed.  However, after the applicant filed a petition for redress against the commander after receiving the LOR, the commander reversed his earlier determination and rendered a referral report on the applicant based on his being five months in arrears on his child support payments.

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

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STATEMENT OF FACTS:

The applicant is presently serving on active duty in the grade of captain.  A resume of his OPRs indicates overall ratings of “meets standards” with the exception of the report rendered for the period 14 Jun 99 through 13 Jun 00, which is a referral report and marked “does not meet standards” in the “Professional Qualities” performance factor.  The applicant was considered, but not selected for promotion to the grade of major by the CY00B (18 Sep 00), CY01A (18 Jun 01), CY02A (19 Feb 02), CY02B (3 Oct 02), CY03A (5 May 03), and CY03B (8 Dec 03) Central Major Selection Boards.

Additional pertinent facts relevant to this case are contained in the evaluations prepared by the appropriate offices of the Air Force found at Exhibits C, D, E, and F.

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AIR FORCE EVALUATION:

AFPC/DPSFM addresses the issue of the LOR and UIF.  They make no recommendation.

A report of investigation, dated 16 Mar 01, revealed the applicant’s commander and senior rater did not follow proper procedure when he received his LOR.  The applicant’s commander failed to inform him of his decision not to file the LOR in his officer selection record (OSR).  The applicant’s commander was within his authority when he issued the LOR and established the UIF.  Officer UIFs are active for two years as long as there are no other problems.  The applicant’s UIF expired on 7 Jun 02.

The complete evaluation is at Exhibit C.

AFPC/DPPPEB addresses the applicant’s request to remove the PRF written on him for the CY01A Major Central Selection Board.  They recommend denial of the applicant’s request.

The applicant alleges his rater intentionally wrote a poor PRF for the senior rater.  The senior rater may request subordinate supervisors to provide information on an officer’s recent duty performance, but may not request any subordinate commander/supervisor to draft or prepare his own PRF.  The applicant has not provided any supportive documentation to support these allegations.  To change Section IV, the applicant or senior rater must demonstrate there was a material error in the PRF; a material error in the record of performance, which substantially impacted the content of the PRF; or a material error in the process by which the PRF was crafted.  The applicant has not provided a new PRF with supportive documentation from the senior rater and management level review president, as required.

The complete evaluation is at Exhibit D.

AFPC/DPPPO addresses the applicant’s request to remove the letter written to the Board and promotion consideration by SSB.  They recommend denial of the applicant’s requests.

The applicant wrote a letter to the CY00B Board President providing additional information concerning the circumstances surrounding the numerous administrative actions taken against him by his commander, to include the referral OPR.  In submitting such a letter, the applicant made a conscious decision to create an historical document, which remains a part of the record that met the CY00B board.  The only time a letter is withdrawn from the historical record is when the subject matter of the letter is subsequently altered through appeal action.

The complete evaluation is at Exhibit E.

AFPC/DPPPE recommends denial of the applicant’s request to void the OPR issued on him for the period 14 Jun 99 through 13 Jun 00.

The applicant contends that the child support arrearage cited in his OPR is inaccurate.  After a commander-directed investigation, the investigating officer stated the applicant provided him with evidence to prove that he was not in arrears.  However, the evidence presented showed that even if the applicant wrote and sent checks on time (which he considered debatable), there was no independent verification that the money was withdrawn from his bank account.  The bottom line was the applicant at that point was not able to prove he actually paid money for the months in question.

The applicant also contends he was never insubordinate as cited in the OPR.  The investigating officer found in his investigation the applicant was disrespectful and insubordinate, and his rater was justified in documenting his behavior in his OPR.

The complete evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

After temporarily withdrawing the applicant’s case for a period of approximately 15 months [Examiner’s Note:  Counsel withdrew applicant’s case on 21 Apr 03 and submitted their rebuttal on     31 Jul 04], counsel responded to the Air Force evaluations.  Counsel advised of several typographical errors in their original submission that should be corrected.  Counsel indicates their response addresses three of the four Air Force evaluations, addresses new information, and clarifies the applicant’s original submission.

In his response to the evaluation prepared by AFPC/DPPPO, counsel addresses their recommendation not to remove the letter written by the applicant to the CY00B Major Central Selection Board president.  Counsel states the applicant wrote the letter to explain the circumstances of the administrative actions taken against him by his commander since he did not know what the disposition of the actions would be.  Counsel points out that the Article 138 investigation report found that the applicant was not told if the LOR he received was going to be placed in his OSR in violation of AFI 36-2608.  Counsel opines that if the AFBCMR grants the applicant’s requested relief, it would be “confusing and irrational to leave documents in his record that refer to the deleted administrative actions.”

In response to AFPC/DPPPE’s assertion that the applicant has not been able to prove that he actually paid money on the months in question, counsel states the applicant did pay money for those months and attaches a cancelled check as evidence.  Counsel points out the applicant’s commander examined the same evidence and testified it was sufficient and he should not have put the statement regarding child support in the applicant’s OPR.  Counsel points out that the problems with the applicant’s payments were caused by the NCCCSCF due to their implementation of a new statewide collection system.  Counsel next addresses DPPPE’s assertion the applicant’s allegations were already investigated and rejected by the Air Force.  Counsel states that the Article 138 Report contradicts its own finding of facts and contradictory evidence, which overwhelmingly supports the applicant’s appeal.

Counsel provides a summary of the issues related to the applicant’s payment of child support.  He points out the Article 138 report ignored evidence of inconsistency between the commander’s statement to the applicant that the matter regarding his child support was closed and his assertion the applicant failed to produce any evidence he had paid the child support.  When the commander was shown the contradictory child support evidence during the investigation, he testified the evidence was in fact sufficient and that he should not have added the statement to the applicant’s OPR.  Counsel further addresses other unexplained inconsistencies in the report.  Counsel concludes that the conclusions of the Article 138 report on which DPPPE based their evaluation are not credible.  Counsel opines that the record contains clear and convincing evidence and testimony which shows that the child support statement added to the applicant’s OPR was reprisal by the commander for the applicant’s request for redress, which highlighted and exposed his improper conduct.

Counsel states the Article 138 Report and Air Force evaluations are not credible in their conclusion the applicant was insubordinate to his commander.  Counsel references incidents involving the applicant’s commander which showed he had a history of physically aggressive behavior.  Counsel also references the testimony of the commander’s secretary who was the only witness present during the alleged insubordination.  The secretary stated the applicant was not being insubordinate, but only trying to explain himself.  Counsel states that the erroneous conclusion of the Article 138 report is not supported by any credible finding of fact and was based solely on a questionable memorandum written, unbelievably, by the commander, the person who was supposed to be the subject of the investigation.

In response to the evaluation prepared by AFPC/DPPPEB, counsel disagrees with the conclusion the applicant’s PRF should not be replaced because the applicant has not provided a new PRF from his senior rater.  Counsel states the applicant’s senior rater was not receptive to the applicant.  However, the applicant has submitted significant evidence proving that the underlying allegations of failure to pay child support and insubordination were unfounded and unjustly documented.  This shows that the actions of the senior rater should be considered unjust.

Counsel’s complete submission, with attachments, is at Exhibit H.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice regarding the applicant’s requests with the exception of voiding the PRF prepared for the CY01A Major Central Promotion Selection Board in its entirety.  The applicant failed to provide a substitute PRF primarily because he cannot obtain one from his senior rater.  We note that the PRF prepared for the CY02A Central Major Promotion Board is essentially identical in Section IV to the CY01A PRF and applicant’s counsel considers it to be a quality PRF.  The primary differences noted are in lines eight and nine.  Key in line 9 is the addition of the words “definitely promote, ISS.”  Based on the circumstances of this case, we believe the addition of these words may more accurately reflect the applicant’s promotion potential during the CY01A Major Central Promotion Selection Board.  In light of this, the applicant’s expressed concern over the PRF, and the obstacles to getting a revised PRF from his senior rater, we recommend adding these additional words to line 9 of the CY01A PRF.  Based on the evidence of record, we also believe there is sufficient doubt created as to whether the applicant paid or took appropriate steps to pay his child support payments.  In fact, it appears to the Board that he did and the problems he experienced resulted from the state’s change to a different accounting and tracking system.  The evidence of record also causes us to question the actions of the applicant’s commander and whether his actions and behavior created the circumstances for the applicant’s alleged insubordination.  For these reasons, we are not persuaded the contested OPR and letter of reprimand given the applicant were appropriate.  Finally, we also believe the letter written by the applicant to the CY00B promotion board president should be removed from his records.  We note that the advisory prepared by AFPC/DPSFM states an investigation determined the applicant’s commander and senior rater did not follow proper procedures when the applicant was given the LOR.  Consequently, the applicant wrote the letter to the promotion board president unaware the LOR had not been placed in his officer selection record.  We believe this constitutes an injustice to the applicant.  Therefore, we recommend the applicant’s records be corrected as indicated below.

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THE BOARD RECOMMENDS THAT:

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

	  a. All documents and references to the Letter of Reprimand (LOR) issued to him on 2 Jun 00, be declared void and removed from his records.

	  b. The Company Grade Officer Performance Report, AF Form 707B rendered for the period 14 Jun 99 through 13 Jun 00, be declared void and removed from his records.

	  c. The letter written by him to the President of the CY00B Major Central Selection Board be declared void and removed from his records.

	  d. The Promotion Recommendation Form (PRF), Air Force Form 709, prepared for the CY01A Central Major Promotion Selection Board be amended in Section IV by replacing line 9, “Decisive breadth!  Proven leader, academician, staff officer and meteorologist--promote” with “Decisive Breath!  Proven leader, academician, staff officer, and meteorologist--definitely promote, ISS!”

It is further recommended he be considered for promotion to the grade of major by Special Selection Board for the CY00B Major Central Selection Board and any subsequent boards for which the above documents were a matter of record.

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The following members of the Board considered Docket Number BC-2002-03181 in Executive Session on 5 October 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 1 Oct 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPSFM, dated 21 Nov 02.
     Exhibit D.  Memorandum, AFPC/DPPPEB, dated 15 Jan 03.
     Exhibit E.  Memorandum, AFPC/DPPPO, dated 18 Feb 03.
     Exhibit F.  Memorandum, AFPC/DPPPE, dated 23 Feb 03.
     Exhibit G.  Letter, SAF/MRBR, dated 28 Feb 03.
     Exhibit H.  Letter, Counsel, dated 31 Jul 04, w/atchs.

AFBCMR BC-2002-03181

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

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

		a.  All documents and references to the Letter of Reprimand (LOR) issued to him on 2 Jun 00, be, and hereby are, declared void and removed from his records.

		b.  The Company Grade Officer Performance Report, AF Form 707B, rendered for the period 14 Jun 99 through 13 Jun 00, be, and hereby is, declared void and removed from his records.

		c.  The letter written by him to the President of the CY00B Major Central Selection Board be, and hereby is, declared void and removed from his records.

		d.   The Promotion Recommendation Form (PRF), Air Force Form 709, prepared for the CY01A Central Major Promotion Selection Board be amended in Section IV by replacing line 9, “Decisive breadth!  Proven leader, academician, staff officer and meterologist--promote” with “Decisive Breath!  Proven leader, academician, staff officer, and meteorologist--definitely promote, ISS!”

	It is further directed he be considered for promotion to the grade of major by Special Selection Board for the CY00B Major Central Selection Board and any subsequent boards for which the above documents were a matter of record.