RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2004-01743

	XXXXXXX	COUNSEL:  

	XXXXXXX	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.	The Officer Effectiveness Reports (OERs) and Officer Performance Reports (OPRs) rendered during the period 18 October 1981 through 21 June 1992, be amended to remove sexist comments, inappropriate allusions to race and other statements/observations that would never have been made for a male, non-minority officer.

2.	The OPR, closing 21 June 1992, be included in her Officer Selection Record (OSR) for the 21 September 2004 Special Board convened pursuant to the court approved settlement in Berkley v. Unites States.

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THE APPLICANT CONTENDS THAT:

References to civilian clothing for a female, repeated detail to command minority programs, and comments with respect to those programs placed an undue emphasis on matters that were impermissible for consideration by selection boards.

Counsel states that applicant is a class member of a pending litigation in the United States Court of Federal Claims.  As a result of the settlement, applicant’s record will be reconsidered as it appeared before the original Fiscal Year 1993 (FY93) Reduction-in-Force (RIF) board.  Prior to applicant’s consideration, the contested reports should be corrected.

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

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STATEMENT OF FACTS:

Applicant is currently serving in the Air Force Reserve in the grade of major.

Applicant was considered and not selected for retention in the Air Force by the FY93 RIF board which convened on 20 July 1992.

Applicant is to be reconsidered for retention by the Calendar Year 2004 Special Board on 21 September 2004, pursuant to the court ordered settlement in Berkley v. Unites States.  The court order agreement provides individuals the right to request corrections to their records pursuant to existing procedures.

Applicant’s OER/OPR profile prior to the FY93 RIF board, follows: 

           PERIOD ENDING          EVALUATION OF POTENTIAL 

		      *29 Jul 82                     2-2-2
		      * 8 Feb 83                     1-X-1
		      * 8 Aug 83                     1-1-1
		      * 8 Feb 84                     1-X-1
		      * 8 Aug 84                     1-X-1
		      *30 Jul 85                     1-1-X
		      *30 Jul 86                     1-1-1
		      *19 Dec 86   Training Report, w/Letter of Evaluation
		      *19 Dec 87                     1-1-1
		      *19 Dec 88               Meets Standards (MS)
		      *21 Jun 89                       MS
		      *21 Jun 90                       MS
		     #*21 Jun 91                       MS

# Top report reviewed by the FY93 RIF board.

* Contested reports

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AIR FORCE EVALUATIONS:

AFPC/DPPPE recommends denial of applicant’s requests to remove the comments or words from all but two of the contested reports.  The report, closing 8 August 1984, should have the word “pleasingly” removed and the report, closing 30 July 1986, should have the word/phrase “…both military uniform and civilian attire” removed.  The remainder of the contested reports are accurate as written and the comments contained therein appropriate during the respective timeframe, especially the comments regarding her off duty activities.  The comments were the “style” of writing for the specified reporting periods and it is nearly impossible to compare the writing “style” from 20 years ago with the writing “style” today.  The reports of all officers were written with the same “style” during the periods in question.  AFPC/JA has reviewed the case and concurs with the assessment.

The AFPC/DPPPE evaluation is at Exhibit C.

AF/JAA concurs with AFPC/DPPPE’s recommendation since the word “pleasingly” and the phrase “both military uniform and civilian attire” are inappropriate.  AF/JAA states in part, the governing regulation prohibits comments or references to race, ethnic origin, gender, age, or religion of the ratee when the references could be interpreted as reflecting unfavorably on the person.  In the applicant’s case, the contested comments on the remainder of her reports were positive, could not be interpreted as unfavorable, and were not prohibited by the governing regulation.  Therefore, AF/JAA recommends denial of the remainder of her requests.

The AF/JAA evaluation, with attachments, is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Counsel states that while there is no direct comment on race or gender, logical inferences to be drawn from repeated allusions to applicant’s activities are nothing more than subtle and clearly perceptible comments on her race and gender.  The issue is not the intent of the authors of these comments, but the message perceived by a reasonable board member.  Fundamental fairness and sound personnel management mandate the requested deletions be made.

Counsel complete response is at Exhibit F.

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ADDITIONAL AIR FORCE EVALUATION:

AFPC/DPPPO recommends denial of applicant’s request to include the OPR, closing 21 June 1992, in her OSR for the Special Board.  AFPC/DPPPO states, in part, that although the report closed out prior to the convening of the FY93 RIF board, the reviewer did not finalize it until 24 August 1992.  Further, the rater took no action to complete his assessment until after the Board convened.

The AFPC/DPPPO evaluation is at Exhibit G.

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APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel states the 21 July 1992 OPR was delayed through no fault of applicant.  Although the OPR closed out prior to the FY93 RIF board convening, it was held up for unexplained reasons for a protracted period and the delay produced no change in the report.  The report’s absence leaves her unevaluated for a lengthy and critical period immediately preceding the original board.  

Counsel 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 timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant amending the Officer Effectiveness Reports (OERs), closing 8 August 1984 and 30 July 1986, and placing the Officer Performance Report (OPR), closing 21 June 1992, in applicant’s Officer Selection Record (OSR) for the 21 September 2004 Special Board convened pursuant to the court approved settlement in Berkley v. Unites States.  In this respect, we note the phrase “pleasingly aggressive,” contained in the rater’s comments of the report, closing 8 August 1984, was inappropriate since the reference softens or feminizes the word aggressive.  The appropriate offices of the Air Force have recommended the word “pleasingly” be removed; however, we believe the word “aggressive” could be interpreted as reflecting unfavorably on applicant.  In view of this, we recommend the phrase “pleasingly aggressive” be replaced with the word “assertive.”  In addition, the OER, closing 30 July 1986, contains the sentence “Her appearance is outstanding, both in military uniform and civilian attire” that was also inappropriate.  Although the remedy recommended by the appropriate offices of the Air Force is to remove the words “both” and “civilian attire,” we believe the sentence should be replaced with the sentence, “Her appearance is always outstanding.”  Therefore, we recommend the applicant’s records be corrected to the extent indicated below.

4.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice concerning the remainder of applicant’s requests.  After thoroughly reviewing the contested reports and noting the objectionable language was the “writing style” for all Air Force officers during the period in question, we are not persuaded the contested comments could be interpreted as reflecting unfavorably on applicant.  To the contrary, they appear to be complimentary, positive, and appropriate for the blocks in which they were written.  As such, their removal in our opinion, could conceivably be detrimental to applicant.  Counsel also requests the OPR, closing 21 June 1992, be filed in applicant’s OSR for the Special Board; however, the rating officials did not complete their assessment until after the board convened.  Counsel contends the report should have been in applicant’s OSR for the FY93 RIF board; however, he has not provided any statements from the rating officials indicating it was their intention, or what action they took, to have the report finalized prior to the FY93 RIF board.  Although the report closed out prior to the convening of the FY93 RIF board, the rating officials did not complete their assessment until after the board convened.  In view of the fact that the OPR, closing 21 June 1992 was not required to be a matter of record at the time the FY93 RIF board convened, we find no compelling basis to treat the applicant differently from other officers similarly situated.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend favorable consideration of the remainder of the relief requested.

5.  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 issues involved.  Therefore, the request for a hearing is not favorably considered.

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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.	The Officer Effectiveness Report (OER), AF Form 707, rendered for the period 9 February 1984 through 8 August 1984, be amended by deleting the first sentence in Section VI, Rater Comments, and replacing with the sentence “An officer that is assertive, highly motivated, and extremely well organized, Lt XXXXX consistently produces positive results.”

	b.	The OER, AF Form 707, rendered for the period 31 July 1985 through 30 July 1986, be amended by deleting the first sentence in Block 9, Professional Qualities, of Section III, Performance Factors, and replacing with the sentence “Her appearance is always outstanding.”

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The following members of the Board considered Docket Number BC-2004-01743 in Executive Session on 20 September 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 Forms 149, dated 3 May & 7 Sep 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPE, dated 15 Jul 04.
    Exhibit D.  Letter, AF/JAA, dated 19 Aug 04, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 24 Aug 04.

    Exhibit F.  Letter, Counsel, dated 31 Aug 04.
    Exhibit G.  Letter, AFPC/DPPPO, dated 13 Sep 04.
    Exhibit H.  Email, Counsel, dated 16 Sep 04.

AFBCMR BC-2004-01743

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.	The Officer Effectiveness Report (OER), AF Form 707, rendered for the period 9 February 1984 through 8 August 1984, be, and hereby is, amended by deleting the first sentence in Section VI, Rater Comments, and replacing with the sentence “An officer that is assertive, highly motivated, and extremely well organized, Lt XXXX consistently produces positive results.”

		b.	The OER, AF Form 707, rendered for the period 31 July 1985 through 30 July 1986, be, and hereby is, amended by deleting the first sentence in Block 9, Professional Qualities, of Section III, Performance Factors, and replacing with the sentence “Her appearance is always outstanding.”