RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:BC-2002-03385

				COUNSEL:  None

				HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered for the period    11 May 2000 through 10 May 2001 be declared void and he receive Special Selection Board consideration for promotion to the grade of lieutenant colonel by the Calendar Years 2001B  (CY01B) and 2002A (CY02A) Lieutenant Colonel Selection Boards.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The contested OPR included a statement from a former supervisor who manipulated a former employee to file a sexual harassment complaint in order to discredit him.  This supervisor had a substantial personality conflict with him and sought to use this complaint to destroy his career.  He was never punished for any such offense; however, this same supervisor succeeded in convincing the chain of command to trust his judgment and agree to persecute him.  Numerous statements are provided to demonstrate the unfair behavior of the supervisor including a statement from the claimant indicating that his actions were against her wishes.

In support of the applicant’s appeal, he submits a copy of the contested OPR, Evaluation Report Appeal Board Letter, and statements from co-workers.

Applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on extended active duty in the grade of lieutenant colonel.

Applicant was considered and not selected for promotion to the grade of colonel by the CY01B and CY02B Colonel Selection Boards. 

On 12 December 2001, the applicant appealed the contested report under the provisions of AFI 36-2401 and the appeal was considered and returned without action by the Evaluation Report Appeal Board (ERAB).  The ERAB recommended that the applicant request a new and impartial investigation into the case by an agency not affiliated with the medical organization or the chain of command, such as, the 81 TRW/IG or 81 TRW/MEO offices.  The findings of this new and independent investigation will ensure the applicant receives due process.  These findings can then be resubmitted in another appeal, if desired.

Applicant’s OPR profile since 2002, follows:

           PERIOD ENDING          EVALUATION OF POTENTIAL 

			31 Jan 96		Meets Standards (MS)
			31 Jan 97				MS
			31 Jan 98				MS
			31 Jul 98				MS
			18 Jun 99				MS
			10 May 00				MS
		*	10 May 01				Referral
			08 Jul 02				Referral

	* Contested Report

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPO recommend the AFBCMR deny the applicant’s request to void the 10 May 2001 OPR.  After careful review of the contested OPR, it is clear that the was report referred for two reasons; 1) applicant’s lack of leadership, and 2) substantiated case of sexual harassment.  IAW AFI 36-2406, para 1.3.2, “evaluation reports must reflect serious or repeated occurrences of discrimination, to include sexual harassment…”  The rating chain and commander determine the “seriousness” of the sexual harassment.  In the applicant’s case, the rating chain and commander determined it serious enough to include it in the     10 May 2001 OPR.  There is no discrepancy identified in the applicant’s OPR as it relates to Air Force Evaluation Policy and Procedures.  

Although the applicant has provided many supporting memorandums from co-workers and friends, he failed to substantiate his allegations of bias through proper channels (i.e. MEO Investigation, Commander Directed Investigation, or an IG Investigation).  The applicant’s reasoning behind not pursuing an MEO or IG investigation is due to “the commander who had made the original decision has changed assignments, the general officer (MDG/CC) has returned me to the duty section and there doesn’t appear to be any other remedy for this situation other than to remove the OPR which referenced the sexual harassment.”  These reasons do not excuse the applicant from proving his allegations that the rating chain was biased toward him.  The MEO or IG is still very real avenues to pursue in an effort to substantiate his allegations.  If his rating chain were in fact biased towards him, an investigation into this matter would substantiate it.

Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  There are no errors or injustices cited in the 10 May 2001 OPR.  The commander directed an investigation into matter concerning sexual harassment, which were substantiated.  The rating chain and commander determined that it was appropriate to mention this within his 10 May 2001 OPR.  The investigation also turned up concerns surrounding his Leadership abilities, which was also mentioned with the OPR.  Bottom line, the applicant failed to provide supporting documentation (i.e. MEO, IG investigation) to substantiate his allegation of bias.  

AFPC/DPPPE complete evaluation is at Exhibit C.

AFPC/DPPPO recommended denial.  The applicant contends that his rating chain maliciously and vindictively ruined his career by including a substantiated allegation of sexual harassment in his OPR.  The applicant further states that the complainant was manipulated into filing a sexual harassment complaint against him; however, in the complainant’s memorandum dated 7 August 2001, she reiterates that it is her belief that the applicant did say and do things that were in an sexual manner.  The commander directed an investigation into the comment(s) and upon completion, sexual harassment was substantiated (is only fair to point out that the applicant alleges that there were discrepancies and improprieties with the commander directed investigation).  They reviewed the findings in AFPC/DPPPE advisory, and have nothing further to add.  Since that advisory recommends denial, SSB consideration is not warranted.

AFPC/DPPPO complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluations and stated that he has conceded that the evaluator is correct in pointing out that a follow-up investigation by MEO or IG would have been beneficial.  In his defense, he would like to point out that he contact MEO and was told only the commander can request this investigation, that MEO staff are merely consultants to be used if requested by the commander.  It was shortly after this that he learned of his diagnosis of an advanced stage of cancer and his thoughts were not with making an IG complaint, but surviving chemotherapy and the cancer.  Given the fact that the advisory board has not recommended that this OPR be voided and the injustice overturned, he will seek the office of the IG in case it isn’t too late to remedy this situation.  He will forward their findings or recommendation should the IG feel it is possible to still investigate the circumstances.

Applicant's complete submission, with attachments, is at Exhibit F.

_________________________________________________________________

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.  After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that the contest report should be voided.  Applicant’s allegations concerning the investigation into his conduct is 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.  Furthermore, we see no evidence that there were any improprieties in the commander's decision to relieve him of his supervisory duties or that his commander abused his discretionary authority in doing so.  The applicant provided statements from outside the rating chain, but he did not present any credible evidence from his rating chain or other agencies to support his contentions.  Applicant states tht he is filing a complaint with the IG and if it is found that the allegations against him are false he should submit the results to the Board for consideration.  Therefore, absent persuasive evidence to the contrary, we find no compelling basis upon which to recommend granting the relief sought. 

____________________________________________________________

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 Docket Number BC-2002-03385 in Executive Session on 3 June 2003, under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 13 Jun 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  OSI Report, dated 28 May 02 - WITHDRAWN.
    Exhibit D.  Letter, AFPC/DPPPO, dated 17 Dec 02.
    Exhibit E.  Letter, AFPC/DPPPE, dated 17 Dec 02.
    Exhibit F.  Letter, SAF/MRBR, dated 17 Jan 03.
    Exhibit G.  Letter, Applicant, dated 14 Feb 03, w/atchs.