RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  2003-02043
						
	COUNSEL:

	XXXXXXX				HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  Field Grade Officer Performance Report (OPR), rendered for the period 3 July 1998 to 2 July 1999 be amended in Section VI to include a promotion or stratification statement and in Section VII by deleting the comments “ISS in residence is a must.”

2.  The Promotion Recommendation Form (PRF) prepared for the Calendar Year 1999B selection board be revised.

3.  The Officer Selection Brief (OSB) prepared for the Calendar Year 1999B Selection Board be corrected to delete the duty title "Sembach Community Services Coordinator" effective 2 Nov 1998.

4.  Direct promotion to the grade of Lt Colonel or in the alternate:

		a.  All non-selections be removed.

		b.  She be considered for promotion to the grade of lieutenant colonel by Special Selection Boards for all appropriate Boards and the Boards be provided a memorandum indicating that because of previous career injury, it should deem her to have received a Definitely Promote on the PRF.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She states that in 1998, she became the Family Advocacy (FA) Element Leader at Ramstein AB.  Because of “perfect storm” conditions, she wound up facing what amounted to a mutiny among some of her new staff.  The effects were and continued to be, devastating for her career.

At Ramstein AB, she succeeded an officer who had what can only be described as a relaxed management style.  Not surprisingly, he was very popular with the staff.  Her own management style was more in the conventional Air Force mode.  The staff viewed her with suspicion even before she arrived, going so far as to make telephone calls to her prior command in order to gather intelligence on her.

The FA staff was not particularly hard working, and her energy proved to be an unpleasant innovation.  Disrespect became rampant (e.g., one subordinate wore a shirt that advised folks that his “boss is clueless”).  There were serious problems of inappropriate conduct.  One member of the staff had established a blatantly inappropriate relationship with a patient (or “client,” in social work parlance).  It fell to the applicant to take action to bring that relationship to a halt and report the matter to state licensing authorities in Texas.  There was also evidence that one of the officers on staff, her boss, was engaged in an inappropriate relationship with a subordinate.

Coupled with and aggravating the pervasive indiscipline in the FA Program, her superior maintained an open-door policy, which encouraged her subordinates to violate the chain of command.  This policy further eroded her position.  Eventually, she was removed from her position, long before she had completed her tour and reassigned as acting Deputy Support Group Commander, Sembach AB.  When the permanent Deputy returned, she became the Coordinator of Individual and Family Integrated Services and the Educational Clearance Tiger Team for the Kaiserslautern Military Community.

On 5 May 1999, she submitted a complaint to the USAFE Inspector General, maintaining, among other things that her removal was in reprisal for her having undertaken a unit self-assessment, which functioned as a protected disclosure.  She also complained that she was the victim of gender-based discrimination because a male officer, junior to her on the active duty list, was promoted over her to the position of deputy commander of the Mental Health Flight.  She complained, as well, that she had not been afforded performance feedback within the prescribed period.  After she complained, that feedback was belatedly furnished to her and was accompanied by a letter of counseling.  Also, a second, nonscheduled feedback session was provided to her the day before she was removed and was conducted with a third-party present, contrary to AFI 36-2406.  Feedback is designed to facilitate improvement and mentor the member, not to document a rationale for removing the member from a position.  It is also noteworthy that when the second feedback was written, only two months after the first one, a vast difference was noted in her performance.  Her supervisor’s only explanation for this discrepancy was that he was unaware he could have marked the applicant down so far in the initial feedback.  

She has been able to obtain only a redacted copy of the XXrd Air Force Inspector General Report (IG) and she assumes the Board will be able to obtain the complete document.  From the redacted version, however, it is clear that parts of her complaint were found to be substantiated, and parts were found to be unsubstantiated. The IG concluded that the self-assessment was a protected disclosure that adverse action was taken thereafter by an individual who was aware of the disclosure, but that a preponderance of the evidence indicates that the same action-removal-would have occurred in any event.  

The IG investigation reported that five reasons had been cited for her dismissal.  

The first was an allegation of dishonesty.  Because of heavy redactions in the pertinent paragraph, she is unable to fully respond to this serious claim.  However, it should be noted that the investigator never personally concluded that the allegation was accurate, only that it had been made.  One source on this matter appears not even to have been interviewed.  The only specifics they have been able to find in the materials released to her are in paragraph 6 under the Analysis of Allegation 2.  

Two instances are cited.  One is an assertion that she falsely denied having been concerned by the command’s failure to use date of rank as the criterion for selecting a new Deputy Commander of the Mental Health Flight.  The other is an assertion that she had falsely denied having threatened subordinates with dismissal.  Neither of these allegations is a plausible basis for removing her from her position.

She was approached by another officer in the mental health clinic, Maj P__, who complained to her that gender-based decisions were being made in the clinic, to include designation of junior male officers to stand in for the male deputy when that officer was on TDY.  The applicant responded that this was interesting and, since she, being new, was unaware of the staff’s dates of rank, asked who was senior to whom.  Maj P__ told her that she was the senior major within the flight, clearly suggesting that she should have been the one designated to act as deputy.  The applicant did nothing with the information concerning dates of rank, and was astounded, some time later, to receive an email from Col T__, the squadron commander, advising her to “stop whining” about the matter--something she had never done.  She went to see Lt Col B__, the mental health flight commander, to find out what Col T__ was referring to, and gathered that Maj P__ had reported their private conversation--a conversation initiated by Maj P__--in a distorted fashion that conveyed the impression she was disgruntled on the subject.  In fact, although she understood she would not serve as acting deputy immediately upon her arrival at the unit, she was surprised that the command continued to disregard normal seniority practices after she had been there for some time.  She had not made an issue of it, although as time passed she certainly had a basis to complain.  To accuse her of falsely denying anything on these facts is outrageous.  It is also noteworthy that the XXAF IG report indicates Maj P__ and Lt Col B__ admitted they “shared a bed” when traveling.  

The other alleged lie had to do with falsely denying she had threatened a subordinate with dismissal.  Here again, the facts show nothing of the kind.  At the time she was at Family Advocacy, there were roughly 13 civil service professional or paraprofessional staff positions.  They were going to be outsourced to a government contractor, Chesapeake.  One of the civil service employees was Mr. O__, whose misconduct represents a major theme in this case.  She discussed with the supervisor (Capt Mc__) on several occasions that all of these positions would likely be outsourced to Chesapeake.  There was no threat to dismiss Mr. O__ or anyone else, but a simple statement of fact regarding the unit’s personnel strategy.  In the end, his position, along with all of the others, was indeed outsourced, although he, like the others, remained in his position as a contractor employee.  The applicant never threatened him or anyone else, and her denial that she had threatened him or anyone else with dismissal was and is true.  Obviously, Mr. O__, whose “rice bowl” was at risk of being broken as part of the command’s shift to contractor personnel, had every incentive to make trouble, which he did.  The fact remains, however, that a dismissal of Mr. O__ or any other staff member for cause was well within the her responsibility as element leader and indeed an option, albeit one that she never exercised.  

The second reason relied on for the proposition she would have been removed in any event is what has been referred to as “the force protection issue at Potzberg Castle.”  This is, if anything, even more of a nonstarter as a justification for her removal than the alleged false denials.  

The facts, in a nutshell, were that the applicant had arranged to have an offsite training session for staff at this facility.  There was no terrorism alert in effect at the time.  There was simply a concern that United States personnel remain alert, use common sense, and avoid large crowds and apparent demonstrations.  More to the point, apparently, four of the FA staff (led by Mr. O__) claimed to be annoyed at her because the plan contemplated that each participant would have had to pay the grand sum of 40 deutschmarks (DM) to cover lunch and snacks--equal to about $20 dollars at the time.  On the security aspect, this was transparently not a firing offense or indeed, any kind of offense at all; a word to the wise would have been more than ample.  The real casus belli seems to have been Mr. O__’s clique’s annoyance at theoretically incurring a very minor expense.  Again, this is nothing like a firing offense for a major element leader.  Indeed, the telling thing about the Potzberg Castle episode is that it shows just how difficult it was to make any headway with the FA staff; this was supposed to be a “team building session,” and they--or rather, a small group of them--turned it into yet another way to torpedo their commander.  Of note, the departure party for the easygoing and therefore popular officer she relieved was held at Potzberg Castle and involved a per capita charge in excess of 40DM.

The third proffered reason was “[t]ension and disruption in the FA element.”  If all one knew was that there was “tension and disruption,” further inquiry would be warranted to identify the cause of the condition.  As we will explain in a moment, further inquiry--done by the IG’s investigator--rules this out as a basis for dismissal.  

The fourth proffered reason concerned certain recommendations.  The Board may find it difficult to address this on the merits because the IG report has been so heavily redacted that it is impossible to tell what is being referred to.  In fact, this part of the rationale has to do with her concern that Lt Col B__ had provided professional assistance to the son of his own superior (the Medical Group Commander) in violation of professional norms.  The investigating officer suggests this practice of dual relationship is “acceptable in small communities and professional settings.”  However, that description can hardly be applied to the Kaiserslautern Military Community, which had a population of more than 45,000 military beneficiaries and approximately a dozen available military and civilian psychiatrists.  In a community of that size, for an officer to treat his own commander’s child does not fall within any small-community exception.  The investigating officer also notes that there was a special role between Lt Col B__ and Col W__, but could not ascertain whether that special role serve to protect Lt Col B__.  All this proves to be beside the point because, whether or not the applicant’s concerns and related recommendations were well-founded, the investigating officer concluded that although this fourth reason for reassignment was among those found not to have been based on reprisal, “the applicant’s arriving at that point [i.e., removal] is a direct product of [her] lack of ongoing effective supervision and feedback by management and therefore is unfair and unjust considering everything as a whole.” 

The fifth reason offered as a justification for her removal--“failure to maintain emotional detachment from patients” in her role as a mental health provider--was not seen as a valid reason for reassignment, according to the investigator.  The investigator cryptically referred to the matter as “problematic,” but in this respect he was mistaken, as his report elsewhere explains that she was nothing more than appropriately persistent and dedicated to patient needs, and that her judgment in that regard had been vindicated.  In any event, even he did not think this was a valid basis for removal.

The investigator’s conclusion that there was no evidence of gender-based discrimination is suspect.  Specifically, the applicant pointed to the fact that she was passed over for acting Deputy Flight Chief in favor of a male officer who was junior to her.  Nothing in the investigation demonstrates that disregard of dates of rank in making such assignments was part of pattern or practice.  Accordingly, it was improper to reject her complaint that gender played an impermissible role in this piece of the case.  Equally unpersuasive is the investigator’s conclusion that gender played no role in the her dismissal because a male officer who had experienced management problems was not reassigned, on the notion that the officer’s management issue was uninvolvement rather than overinvolement (said to be the problem with the applicant).  In her September 25, 2000 supplement to her IG complaint, she identified and furnished details with respect to a variety of other instances of discrimination against women with the command.  The instances she cited stand unrebutted.  At least one of the officers has already received relief from the AFBCMR.

Finally, in reaching the conclusion that there was no gender-based discrimination, the investigator appears to have overlooked his own observation, in the last paragraph of his Analysis of Allegation 8, that lack of recognition was a more pronounced response among women at Family Advocacy than among men.

Taking these three points together, the IG’s conclusion that gender did not play a material role in the treatment of which she was subjected cannot be accepted.  

This leaves for discussion the matter of “[t]ension and disruption in the element.”  It turns out that this is at the heart of the case, and here, far from providing a justification for her removal, the facts and the IG’s own analysis, demonstrate the entire setting was deeply unfair--whether viewed as a gender-based matter or as simple, garden-variety injustice.  

It hardly needs elaboration to see why the circumstances under which she had to function at Ramstein set her up for failure.  Given this grim summary, it is no wonder she failed to be selected when she met the promotion board.  

The circumstances described impacted on her promotion recommendation for the CY99B board.  The all-important concluding words-again, only four in number--were “leadership skills require maturing.”  These were obviously damning and the results were entirely predictable.  It is impossible to divorce those words--which were plainly calculated to counteract the ostensible recommendation that she be promoted--from the circumstances so vividly and cogently described by the IG’s investigator.  Those circumstances were unfair, and the PRF was as well.

These are not the only errors and injustices, although they are more than ample to mandate relief.  Her OPR for the period ending July 2, 1999, included this final comment in block VII: “ISS in residence is a must.”  Such a comment is inappropriate for an officer in her pay grade, and was prejudicial each time she has met a promotion board.  In block VI, Lt Col B__ purposely leaves out a promotion or stratification statement in his final line.  The OPR should be corrected, and each of her failures of selection removed.  Her record was also incorrect in that her duty history did not reference her family advocacy position when she met the Lt Col boards.

This is an appropriate case for direct promotion relief.  The Board has granted such relief in the past where an officer suffers career injury that inherently does not lend itself to correction through normal means, or where the normal means have simply proven unequal to the task.  Direct promotion relief is warranted here because her removal as the element leader of the Ramstein Family Advocacy Program has had an enduring adverse impact on her right to fair consideration for promotion ever since.

Since the time she was forced out of her position, she has received one outstanding OPR after another as well as other forms of recognition for her excellent performance of duty, yet she has had no success getting selected for lieutenant colonel.  For example, the XXXth Medical Operations Squadron selected her as a Squadron Officer of the Quarter in April 2002, and on 4 February 2003, she was notified that she had been selected as Social Worker of the Year (2002) for her command.  Nonetheless, she was passed over yet again by the Calendar Year 2002 Board.

In support of her request, applicant provided her counsel’s legal brief, a copy of the formal complaint, with numerous attachments, and a redacted copy of the IG Report.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on active duty in the grade of major.

Applicant was considered and nonselected for promotion to the grade of lieutenant colonel by the Calendar Years 1999B, 2000A, 2001B, and 2002B, Lieutenant Colonel Central Selection Boards.  

During the period in question, the applicant was the element chief of Family Advocacy, XXth Medical Group at Ramstein AB Germany from 28 July until her removal on 7 April 1999.  She was removed and reassigned as special assistant to the XXth Support Group commander. 

On 5 May 1999 and 25 September 2000, the applicant filed a complaint with the Inspector General’s (IG) office at Ramstein AB, Germany.  The applicant alleged mismanagement, reprisal, perceived favoritism, gender discrimination; inappropriate relationships; and subversive behaviors by people within her element, that were permitted by management, ultimately leading to the unraveling of good order and discipline in the Family Advocacy element.  

On 20 October 2000, the DoD IG concurred with the HQ XXAF/IG report of investigation that all allegations were not substantiated except for the allegation of delayed feedback and improper feedback (see HQ 3AF/IGQ Report at Exhibit C).

The applicant filed an appeal under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Report, for the P0599B Performance Recommendation Form; however, it was returned without action with the recommendation that she reapply after the results of the IG investigation.

Applicant has received eight OPR's since she was promoted to the grade of major, all of which reflects "Meets Standards."

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPE recommends denial and states the applicant did not provide any credible evidence specifically addressing the lack of stratification on the 2 July 1999 OPR.  Actually, if the rater did not believe the applicant deserved a stratification he was not required to provide it.  Further, the applicant mentions there was no promotion statement on the report.  While this is an accurate statement, AFI 36-2402, para 1.4.1, prohibits recommendations on officer performance reports.  As such, it was appropriate for the evaluators not to include any promotion recommendations on the contested report.  Also, the applicant was still eligible for ISS in residence at the time the report closed out.  Accordingly, the recommendation for ISS, while optional, was appropriate.  Simply because the applicant is not happy with the way the report turned out does not make it inaccurate.  It could be, in fact, accurate that the rater “purposely” left out a stratification statement; however, such statements are not mandatory in performance reports.  It is the rating chain’s decision based on their assessment on what statements to include-not the member’s.  

While the applicant has requested a new PRF that “properly notes her successes,” a revised PRF has not been provided and it isn’t clear exactly who the applicant believes would be in a position to render a new report.  This point is actually somewhat moot, since the applicant’s own evidence from HQ USAFE/IGQ clearly indicates a formal investigation was conducted and “there was insufficient evidence that reprisal occurred.”

The applicant did not prove any of her contentions.  Evidence is required to prove contentions that a report is erroneous and in this case, none was provided.  Again, on the contested July 1999 OPR, the ISS recommendation was appropriate, the stratification statement was optional, and the promotion recommendation was prohibited.  As for the P0500B PRF, the IG investigation found no reprisal took place.  

AFPC/DPPPE complete evaluation is at Exhibit D.

AFPC/DPPPO recommends denial and states that the applicant’s record does not warrant direct promotion, nor does it warrant SSB consideration.  Through counsel, the applicant contends her duty history did not reference her Family Advocacy position when she met the lieutenant colonel boards.  However, we reviewed her P0599B, P0500A, P0501B, and P0501B officer selection briefs (OSBs) and found that they all reflected her duty title as “Family Advocacy Element Leader.”  Therefore, SSB consideration is not warranted on this issue.  

Regarding the request for direct promotion, both Congress and DoD have made clear their intent that when errors are perceived to ultimately affect promotion, they should be addressed and resolved through the use of SSBs.  See 10 U.S.C. 628(b), DoD Directive 1320.11 para D.1. and Air Force policy, which mirrors that position in AFI 36-2501, Chapter 6.  When many good officers are competing for a limited number of promotions, it is extremely competitive.  Without access to all the competing records and an appreciation of their content, we continue to believe the practice of sending cases to SSBs is the fairest and best practice.  In the past, and hopefully in the future, the AFBCMR will consider direct promotion only in the most extraordinary circumstances where SSB consideration has been deemed to be totally unworkable.  

AFPC/DPPPO complete evaluation, with attachments, is at Exhibit E.
_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the Air Force evaluations and stated that the essence of the DPPPE advisory opinion is that since the Inspector General did not find the applicant’s complaint of reprisal to have been substantiated, her record correction application should be denied.  This reflects a fundamental misunderstanding of the role of the AFBCMR.  Under 10 USC 1552, every member has a right for review of his or her application by a “board of civilians” acting for the Secretary.  That board, of course, is the AFBCMR.  It must render its own decisions and not simply rubberstamp those of uniformed personnel, including the 3AF IG.

The applicant’s application is quite detailed, is submitted under oath, and is supported by substantial evidence.  The two advisory opinions, in contrast, are totally superficial.  Neither one makes the slightest effort to assess the evidence adduced by the applicant, nor to address the specific arguments advanced in her supporting memorandum.  Vague generalities are no more worthy of acceptance when they come in advisory opinions than when they are submitted by an applicant.  The advisory opinions are of no assistance to the AFBCMR because they fail to address the specifics of the case.  In a perfect universe, it would be tempting to urge the AFBCMR to require the submission of advisory opinions that do so.  However, in light of the passage of time and the fact that there can be no assurance that such advisory opinions would be any more helpful to the board than the ones previously submitted, we believe the AFBCMR should proceed on its own to examine the evidence and draw the required conclusions.  The Air Force is not entitled to a second bite at the apple while the applicant continues to suffer the career harm identified in her submission.

We also note that, in addition to failing to come to grips with the particulars of the case presented in the application and supporting materials, the offices that submitted the advisory opinions have failed to submit any witness statements that might overcome the applicant’s evidence.

As one witness whose name has been redacted from the IG’s report concluded, “[r]garding leadership performance at the 8th Medical Group vis-à-vis the applicant, REDACTED summed it up with four words: “They get an F.”  See our brief at 15.  The advisory opinion from DPPPE, however, fails to address those prejudicial circumstances, even though they are set forth in detail in the application.  Instead, it seeks to treat the case as if it were simply a series of discrete technical matters.  This kind of trees vs. forest approach is a far cry from how the AFBMCR has performed its important function over many years.  Specific promotion recommendations may no longer be permitted in OPRs, but that does not mean stratification comments-or the lack thereof-are immaterial.  As we explained in detail, the applicant was subjected to extremely unfair treatment by her command at Ramstein AB.  That kind of treatment inevitably colors what appears in an OPR (or, as here does not appear).  Anyone familiar with the performance evaluation system knows perfectly well that the choice of terms in an OPR can have a decisive impact on promotion prospects.  

DPPPE notes that since the applicant remained eligible for ISS in residence, there was no problem in noting this on her OPR.  Once again, this observation overlooks the practical realities of the effect of such a comment in an OPR for an officer in her pay grade.  Sometimes an OPR can be unfair even if it is literally accurate.

As for having a new PRF generated, the DPPPE advisory opinion comments that it is not clear who the applicant believes should prepare the revised form, and suggests that in any event this issue is moot because the IG found that there had been no reprisal.  Neither of these observations is valid.  Finding an appropriate general officer to prepare the PRF will be no problem, quite obviously.  Nor is the matter “moot” simply because the IG found no reprisal.  In fact, as our brief demonstrates, the investigation revealed clear unfairness directed to the applicant, and the reasons given for accepting the command’s contention that she would have been transferred in any event simply do not withstand scrutiny.  We will not repeat here what is in the brief.  The AFBCMR should simply refer to pp. 4-15.

Nothing in the DPPPE advisory opinion addresses in any manner the applicant’s evidence that gender played an improper role in her treatment.  Please refer to our brief at pp. 12-13 and supporting documentation.  Nor does the advisory opinion in any way address the unfairness and inaccuracy of the PRF, as noted in our brief at p. 15 and n. 7.  A PRF for a major (who is about to meet a Lt Col board) that entirely fails to describe the officer’s performance as a major is a sham.  The Air Force did not establish the PRF machinery with a view to its being so easily circumvented. 

The other advisory opinion is from DPPPO.  Like the first one, this one also fails to address the specifics of the applicant’s underlying factual assertions, but simply takes the IG’s conclusions as a given.  As explained above, that is no help at all to the AFBCMR.  The DPPPO advisory opinion also errs in its characterization of her complaint.  It is not simply a question of whether she was a victim of reprisal, but also whether-reprisal aside-she was treated unfairly, as the record plainly demonstrates. 

DPPPO insists that SSB consideration is unwarranted based solely on DPPPE’s advisory opinion, including the suggestion that the applicant’s PRF is moot because the IG investigation found no reprisal.  As we have explained, it is for the AFBCMR, and not the 3AF IG, to decide whether her objections to the PRF-which transcend reprisal-are valid.

DPPPO also maintains that no relief is warranted in respect to the OSB recitation of the applicant’s duty history.  The date on the duty history indicates that on November 2, 1998, she was Sembach Community Services Coordinator.  But the OPR for the reporting period from July 3, 1998 to July 12, 1999 suggests that she was the Family Advocacy Element Leader.  The title of Sembach Community Services Coordinator never even existed.  The three OSBs attached to the advisory opinion drop the Sembach title and add the correct one that was not given until January 2000.  The fact remains that at the time of the selection board, the acting title on the OSB assignment history was Sembach community Services Coordinator, not Family Advocacy Element Leader, as the OPR has it.  The resulting discrepancy could only have puzzled the 1999 Lt Col board, prejudicing the applicant’s chances for promotion.

If the AFBCMR takes the time to go through the actual evidence for itself, rather than treat the XXAF IG’s conclusions as a fait accompli (as the advisory opinions clearly do), we believe it will see that the applicant has indeed suffered career injury.  This is one of those unusual situations in which the applicant’s record is so unfair for such long period of time that the SSB system cannot reasonably be expected to correct the matter, and as a result, direct promotion is called for.  That is our strongest request.  If, as our brief explained, the promotion, then it should at least mandate consideration by an SSB based on a fully corrected record.  Any SSB that is conducted should be furnished a memorandum indicating that because of previous career injury, it should deem the applicant to have received a Definitely Promote on the PRF. 

Counsel’s complete response is at Exhibit G.
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:

AFPC/DPPPEP states that having carefully reviewed the applicant’s attorney letter, they have not altered the conclusions and recommendations reached in their earlier advisory.  The applicant’s attorney actually seems to desire the AFBCMR to “create” policies that were not allowed for all other AF officers at the time the report was rendered.  As they pointed out in their 16 October 2003 advisory, promotion statements were prohibited at the time the 2 July 1999 report closed out.  While the attorney now apparently accepts that such a comment was prohibited, he now inappropriately turns his attention to the ISS recommendation included in the report.  AF policies are created to ensure all AF members are governed by the same set of rules… not according to their own as the attorney seems to suggest.  As indicated in our advisory, the ISS recommendation was appropriate when the report closed out.  Once again, it isn’t clear why the attorney’s asserting that such a recommendation, while literally accurate, is unfair, such appropriate recommendations actually make the report stronger.  Accordingly, it is not a good argument to refute such an appropriate recommendation.

As for the issue of a new PRF, the applicant still fails to provide a revised PRF for the Board’s review and consideration.  The attorney indicates, “Finding an appropriate general officer to prepare the PRF will be no problem, quite obviously.”  Exactly what general officer and what makes it appropriate for him/her to render the PRF at this point?  Many AF officers would like the opportunity to pick or choose the general officer they desire to render their PRF (especially after non-selection for promotion), but that is simply not how our system is designed or works.  The applicant (or her attorney) has not provided clear evidence that the evaluators on the PRF and OPR were not able to provide a fair and just assessment of her performance.  

Finally, the attorney indicates DPPPE failed to address the allegation that gender played an improper role in her treatment. We again defer to the official conclusions of the IG “…that there was no evidence of gender-based discrimination…” While the attorney may find that conclusion “suspect,” no valid reason or evidence has been presented for us to do the same.  IG investigations use parties outside those in the official rating chain to review all available evidence and interview those closest to a situation.  In this case, the findings of the investigator concluded that gender did not play a role in the applicant’s treatment.  In any case, where findings are not in favor of an accuser, they are not going to agree with those findings; however, that alone does not make findings inaccurate or unjust.  Nothing has been provided to cause us to draw a different conclusion than the official specifically appointed to review the accusations.  

AFPC/DPPPEP complete evaluation is at Exhibit H.

AFPC/DPPPO recommended denial and states that in this particular case, several assertions are made regarding unprofessional conduct, reprisal, favoritism, and other forms of discrimination against the member, which counsel alleges are the underlying factors or true characterization of the applicant’s complaints.  Nevertheless, they believe the substance of her request as it pertains to SSB consideration or a direct promotion rests with an alleged error in the 2 July 1999 Officer Performance Report (OPR), P0599B Officer Selection Brief (OSB).

Therefore, regarding the 2 July 1999 OPR and P0599B PRF, they considered and accepted as true AFPC/DPPPE’s advisory which did not and still does not support the applicant’s request to correct the OPR or change the PRF as explained in their letter of response, dated 30 April 2004.  At this point, there is no basis to recommend approval for SSB consideration, or direct promotion if the subject matter expert (DPPPE does not validate the existence of an error in regards to this portion of the applicant’s selection record.  Furthermore, since our evaluation process requires us to rely on the opinions of other Air Force experts, we are not in a position to refute DPPPE’s findings or the findings of the USAFE Inspector General, but trust in the integrity of each conclusion to render our recommendation.

Additionally, in her initial application, the officer contended her duty history did not reference her Family Advocacy position.  Specifically, her counselor states, “her record was incorrect in that her duty history did not reference her Family Advocacy position when she met the Lt Col Board.”  We attached copies of the OSBs reflecting her duty title as Family Advocacy Element Leader to the initial advisory to show this claim was not valid.  Counsel now clarifies the actual error on the P0599B OSB was an erroneous duty title, effective 2 November 1998, as Sembach Community Services Coord.  Given this new information, it appears the duty title is in fact erroneous.  However, they strongly believe this error on its own was not likely the key to the applicant’s nonselection for promotion, but instead the result of an assessment of her entire selection record.  

AFPC/DPPPO complete evaluation is at Exhibit I.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel reviewed the Air Force evaluations and stated neither of the two opinions alters the case or cures the problems set forth in their December 2, 2003 reply to the earlier advisory opinions.

The April 30, 2004 advisory opinion suffers from the same defects they previously identified.  This 1 ½ page advisory makes no effort to address with particularity the substantial evidence of unfairness that we submitted.  Instead, it engages in a lot of rhetoric, and asks the AFBCMR simply to defer to findings of the Inspector General’s (IG) investigation. This is wrong for three reasons.  First, the advisory opinion is highly selective in its reference to what the IG found substantiated, what the IG found unsubstantiated and what the IG never conclusively determined one way or the other.  They have already demonstrated the inadequacy of that investigation, with particular reference to hard evidence, and there is no purpose to repeat that demonstration in this letter.  Please refer to their prior submissions.   Second, the IG investigation necessarily based only on all the evidence available at the time; the decision here, however; two are not the same.  Third, as they also previously explained, Congress imposed on the Secretary, acting through this “Board of civilians,” 10 U.S.C. 1552, the duty to determine independently whether an error or injustice has occurred.   The IG process, whatever it strengths and weakness is not a substitute for de novo determination of disputed issues in this civilian forum.

The May 21, 2004 advisory opinion from DPPPO is easily summarized: that office does not itself evaluate an applicant’s submissions, but simply takes as a given the conclusions set forth in other offices’ advisories.  Such an advisory opinion adds nothing to the conversation.  In this case, however, DPPPO has conceded that there was an error on the applicant’s PO599B OSB.  DPPPO maintains that this now-admitted error was not likely the key to her failure of selection, suggesting instead that her Passover was “the result of an assessment of her entire selection record.”  That does not carry the service’s burden under the case law, which requires the government to prove, once an error has been identified that has some nexus to the adverse action (duty titles being more than trivial matter when evaluating an officer’s record), the same adverse action has occurred in any event.  E.g., Frizelle v. Slater, 11l F.3d 172 (D.C. Cir. 1997).  We would only add that if the intent behind the language quoted was to suggest that the applicant’s record suffered from some flaw that was so profound that it precluded her promotion, any such implication would be entirely false--and we invite the AFBCMR to examine her record for itself from this perspective.  It is a fine record, and certainly a promotable one.

Finally, since the applicant has asked for a direct promotion, it is appropriate to make the Board and the Secretary’s delegate aware of her latest achievements, so they may make a decision in light of her current, continuing high level of contribution to the mission of the United States Air Force.  In 2002, she was Social Worker of the Year for the Air Combat Command, and in 2003, she was Social Worker of the Year for the Air Force Special Operations Command.  Earlier this year she was named Social Worker of the Year for South Georgia Chapter of the National Association of Social Workers.  Pertinent documents are enclosed. Her OPRs continue to strongly recommend her promotion to the grade of lieutenant colonel. 

If the AFBCMR takes the time to go through the actual evidence for itself, rather than treat the XXAF IG’s conclusions as a fait accompli (as the advisory opinions clearly do), they believe it will see that the applicant has indeed suffered career injury.  This is one of those unusual situations in which the applicant’s record is so unfair for such a long period of time that the SSB system cannot reasonably be expected to correct the matter, and that as result, direct promotion is called for.  That is our strong request.  If, as our brief explained, the AFBCMR is for any reason not disposed to recommend direct promotion, then it should at least mandate consideration by an SSB based on a fully corrected record. Any SSB that is conducted should be furnished a memorandum indicating that because of previous career injury, it should deem the applicant to have received a Definitely Promote on the PRF.  

Nothing in the latest advisory opinions suggests a different course of action, especially given the AFBCMR’s “abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and to take steps to grant thorough and fitting relief.”  Duhon v. United States, 461 F.2d 1278,1281 (Ct. Cl. 1972), quoting Caddington v. United States, 147 Ct. Cl. 629, 178 F. Supp. 604, 607 (1959); see also Thomas v. Cheney, 925 F2d 1407, 1423-24 (Fed. Cir. 1991).  

Counsel’s complete response, with attachments, is at Exhibit K.
_________________________________________________________________
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 thoroughly reviewing the applicant’s submission, the Board is not persuaded that her request should be granted.  In this regard, we note that during the period of the contested July 1999 OPR, promotion recommendation statements were not allowed to be included in OPRs. The recommendation for ISS at the time the report was written was appropriate and the inclusion of a stratification statement by the rater was optional. The applicant did not present any credible evidence from her senior rating chain or other agencies to support her contention of error or injustice.   With respect to the PRF, we are not persuaded that there were any errors or improprieties in her promotion recommendation process. The applicant did not provide any support from her rating chain or MLR which would lead us to believe that the contested PRF as written, is an inaccurate depiction of her potential to serve in the next higher grade.  In regards to the duty title on the OSB, the Board notes that the Air Force acknowledges that there was an error on the applicant’s OSB prepared for the CY99B selection board, however, it is highly unlikely this error was the sole cause for her nonselection.  Therefore, we are in agreement with the Air Force and are compelled to conclude that the duty title constitutes a harmless error and does not warrant consideration by an SSB.  In view of the foregoing, and in the absence of evidence to the contrary, we agree with the recommendations of the OPRs and adopt their rationale as the basis for our decision that the applicant has failed to sustain her burden of establishing that she has suffered either an error or an injustice.  Accordingly, the applicant’s requests are not favorably considered.

4.	The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved.  Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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-2003-02043 in Executive Session on 14 September 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 1 Jul 03, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	HQ USAFE/IG Report, dated 5 May 99.
	Exhibit D.	Letter, AFPC/DPPPE, dated 16 Oct 03.
	Exhibit E.	Letter, AFPC/DPPPO, dated 16 Oct 03, w/atchs.
	Exhibit F.	Letter, SAF/MRBR, dated 28 Feb 03.
	Exhibit G.	Counsel’s Response, dated 2 Dec 03, w/atchs.
	Exhibit H.	Letter, AFPC/DPPPEP, dated 30 Apr 04.
	Exhibit I.	Letter, AFPC/DPPPO, dated 21 May 04.
	Exhibit J. Letter, SAF/MRBR, dated 1 Jul 04.
	Exhibit K.	Counsel’s Response, dated 13 Jul 03, w/atchs.