RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00494
		INDEX NUMBER:  131.00
	XXXXXXXXXXXX	COUNSEL:  

	XXX-XX-XXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered on him for the period 18 Dec 95 through 13 Dec 96 be removed from his records.

He be considered for promotion to the grade of major by special selection board (SSB) for the CY02A Central Major Selection Board.

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APPLICANT CONTENDS THAT:

Through an eight-page brief of counsel, applicant contends that:

The contested OPR was based on false information regarding his off-duty conduct.

The contested report was, in fact, a referral report and he was not given the opportunity to reply to it.

His rater used the historically derogatory term “Solid” in describing his performance and the additional rater made a career ending comment in his indorsement.

Counsel provides the details that led to the applicant’s OPR.  The applicant was named in an investigation as having engaged in inappropriate conduct, of which he was eventually cleared.  He provides a statement of apology from the applicant’s accuser.  The applicant was not exonerated until after the closeout date of the OPR.

There are no documented counselings regarding applicant’s performance of duty.  Copies of AF Forms 8, “Certificate of Aircrew Qualification,” show that the applicant received consistently high marks and no discrepancies were noted.  Counsel indicates that he has spoken to the applicant’s former additional rater who represented to him that applicant had been the subject of multiple counselings.  However, there is no record of any and the applicant denies that any occurred.

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.  He was considered and not selected to the grade of major by the CY02A and CY02B Central Major Selection Boards.

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AIR FORCE EVALUATION:

AFPC/DPPPE recommends denial of the applicant’s request to void the OPR closing 13 Dec 96.  The applicant filed an appeal with the Evaluation Reports Appeal Board (ERAB).  The ERAB denied his request because the statement made by the additional rater in Section VII, Line 5, of the OPR is not considered referral in nature.  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 13 Dec 96 OPR.  The applicant has failed to provide any substantial evidence to support his contentions.

The complete evaluation, with attachment, is at Exhibit C.

AFPC/DPPPO recommends denial of the applicant’s request for promotion consideration by SSB.  Since AFPC/DPPPE recommends denial of the applicant’s request to remove the OPR closing      13 Dec 96 from his records, SSB consideration is not warranted.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel responded to the Air Force evaluation after the case had been temporarily withdrawn.  Counsel indicates, “It is remarkable” that anyone could conclude that the language “… has potential to be a good officer if he can learn to harness and better focus his energy” is anything other than a negative character comment.  Counsel further asserts that they have discovered that the applicant’s OPR was discussed among the additional rater, wing commander, staff judge advocate, and another senior officer.  The senior officer had taken the position that the OPR was referral.  Counsel opines that the OPR was debated and lawyered to create negative, but arguably not referral language.  Counsel states that the senior officer disclosed to the applicant in a phone conversation that the wing commander had improperly influenced the outcome of the applicant’s OPR.

Counsel points out that there is no evidence pointing to applicant’s substandard duty performance either personally or professionally.  He provides a summary of the applicant’s accomplishments during the period of the report and otherwise that show the applicant is not and has never been an average individual.  Finally, he provides a summary of the problems with the applicant’s OPR:

	  a.  Applicant is referred to as “Solid.”

	  b.  No mention of leadership is made.

	  c.  No mention of service schools is made.

	  d.  The narrative is clearly negative in tone and implication.

Counsel’s complete response 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We question AFPC/DPPPE’s observation that it is reasonable to conclude that the applicant is at least an “average” officer with the potential to be a “good” officer.  It might be equally as reasonable to conclude that the “average” Air Force officer is a “good” officer.  Regardless, although the majority of the comments in the OPR are positive, the statement in Section VII, “… has potential to be a good officer if he can learn to harness and better focus his energy,” sends a clear message that the applicant has deficiencies as an officer.  However, it is not clear from the OPR what they are, since he is marked as meeting standards in every factor in Section V and the comments in Sections VI and VII do not clearly indicate.  While it is entirely possible that the applicant is aware of the reasons the comment in Section VII was made, an OPR written in such a vague manner fails to clearly provide those reviewing the OPR in an official capacity, such as this Board, with a clear picture of the officer’s strengths and weaknesses.  We believe such an OPR constitutes an injustice, since it negatively impacts the individual, but does not provide a clear basis for challenge.  Therefore, we recommend that 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 the Company Grade Officer Performance Report, AF Form 707B, rendered for the period    18 December 1995 through 13 December 1996, be declared void and removed from his records.

It is further recommended that he be considered for promotion to the grade of major by the CY02A Central Major Promotion Selection Board, and any subsequent boards for which the OPR closing      13 December 1996 was a matter of record.

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The following members of the Board considered Docket Number BC-2003-00494 in Executive Session on 18 December 2003, under the provisions of AFI 36-2603:

Panel Chair
Member
Member

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

     Exhibit A.  DD Form 149, dated 6 Feb 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPPE, dated 24 Mar 03.
     Exhibit D.  Memorandum, AFPC/DPPPO, dated 3 Apr 03.
     Exhibit E.  Letter, SAF/MRBR, dated 11 Apr 03.
     Exhibit F.  Memorandum, Applicant’s Counsel, 
                 dated 8 May 03.
     Exhibit G.  Letter, AFBCMR, dated 8 May 03.
     Exhibit H.  Memorandum, Applicant’s Counsel, 
                 dated 24 Jun 03.
     Exhibit I.  Memorandum, Applicant’s Counsel,
                 dated 2 Jul 03.
     Exhibit J.  Fax Cover Sheet, Applicant’s Counsel,
                 dated 24 Nov 03.

                                   
                                   Panel Chair

AFBCMR BC-2003-00494

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 XXXXXXXXXXXX, XXX-XX-XXXX, be corrected to show that the Company Grade Officer Performance Report, AF Form 707B, rendered for the period 18 December 1995 through 13 December 1996, be, and hereby is, declared void and removed from his records.

	It is further directed that he be considered for promotion to the grade of major by the CY02A Central Major Promotion Selection Board, and any subsequent boards for which the OPR closing 13 December 1996 was a matter of record.

		
		Director
		Air Force Review Boards Agency