RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-00825
								INDEX CODE:  111.01, 131.01
	XXXXXXXXXX					COUNSEL:  NONE

								HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The Promotion Recommendation Form (PRF) for the PO605A Colonel Central Selection Board (CSB) be invalidated, and his record be reevaluated by a Special Selection Board (SSB) to review his entire career for the performance period being rated.

The SSB review his record and only review Officer Performance Reports (OPRs) that closed out prior to the original board date; the last OPR that should be considered closed out on 6 April 2005.

If the requested relief is granted, he be allowed to continue on active duty until the SSB results are released.

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APPLICANT CONTENDS THAT:

The PRF considered by the PO605A Colonel CSB was not completed IAW Air Force Instruction (AFI) 36-2406, table 8.1, line 12, which clearly outlines “this section covers the entire record of performance and provides key performance factors from the officer’s entire career, not just recent performance.”  The PRF he received from his senior rater only documents one alleged incident that was not supported in his record.

An extension to the close-out date of an OPR must be requested if an incident “that is of such a serious significance” occurs after a performance report closes and the time it becomes a matter or record.  If the incident was serious enough to be commented on in his PRF, his Wing Commander should have extended the close-out date of his OPR closing 6 April 2005, and this was not done. 

It was inappropriate for his evaluator to consider and comment on the Command Directed Investigation (CDI) results within his PRF, let alone make it the sole comment on the form.  He did not attribute a time period to the information he used in the PRF, and did not cite where the information came from.  The only negative item in his record is his 15 March 2006 OPR, which was not included in his record at the time the PRF was prepared, or when his 12 September 2005 Colonel CSB convened.

Information about alleged “abuse” or a “hostile” work environment is irrelevant; there was no negative documentation of any kind in his record during this time period.  To date, he has not received any counseling, admonishment, reprimand, or had non-judicial punishment.  He has never had an Unfavorable Information File (UIF) or been placed on the Control Roster.  No documentation has ever been placed in his Officer Selection Brief (OSB), and the comments on his PRF are unjust, irrelevant, and should be removed.

His OPR closing 6 April 2005 would have been the top report during this time frame.  The report covers the entire time period of the alleged inappropriate behavior and there is no mention of any problems; thus, the negative remarks included in his PRF should be removed.  He has never been counseled about any sub-par performance, been instructed as to which behaviors he needs to modify or cease, been directed to go to anger management training or seek a mental health evaluation, told he could not supervise again, nor has any feedback been given to enable him to improve and correct any supposed deficiencies.  The only action taken was that his Wing Commander removed him as the Mission Support Group (MSG) Deputy Commander which, at the time, he thought was being done to remove him from the work place of the person who had an alleged problem with him.  The informality in the way his reassignment was handled did not seem to be a career-ender at any time, and he was awarded an Air Force Commendation Medal (AFCM), dated 16 July 2005, for a special project he worked during the same period as the alleged inappropriate behavior.  The lack of documented poor performance or behavior, coupled with the informality of his reassignment, led him to believe he was reassigned to keep the peace and not as punishment.

His due process rights were violated.  He was not provided an opportunity to review or comment on the findings and recommendations of the CDI prior to the completion of his PRF and the CSB start date, and he was not provided a copy of the CDI until 29 November 2006.  This delay resulted in his hands being tied by a lack of information, prevented him from presenting a rebuttal or defense prior to board convening, and prevented him from sending a memorandum providing his side of the story to the CSB prior to the board convening date.  Additionally, the resulting information provided in the CDI concerning his portion of the testimony is incomplete and, in some instances, inaccurate.  The one-sided report led to his removal as the MSG Deputy Commander, and directly contributed to the incorrectly completed PRF considered by the CSB.

On 22 August 2005, he contacted his senior rater and outlined his concerns with the PRF.  He did not hear anything from his senior rater prior to the 12 September 2005 CSB, and, given that he was unaware of the status of his concerns, he could not properly and fully address the CSB prior to the Board convening date.

Since CSBs operate under the assumption that evaluation reports are accurate and objective, the OPRs and medals he received during his career should have been used to complete the PRF and give an overall career encapsulation of his achievements, vice a single alleged “event” that was not documented in his record, or for which he was not punished.  

In support of his appeal, he has submitted copies of a personal statement, the PRF considered by the PO605A Colonel CSB, AFI 36-2406, Table 8.1, his OPR closing 6 April 2005, his SERB Letter, dated 15 February 2007, his ERAB results e-mail from AFPC/DPPPE, AFI 36-2406, paragraph 3.7, AFI 36-2406, paragraph 1.3, his Air Force Commendation Medal for the period 1 December 2004 – 30 May 2005, a HQ AMC FOIA appeal approved letter for the CDI, an e-mail to 18AF/CC outlining concerns with his PRF, an e-mail delivery confirmation, a draft PRF prepared in early May 2005, his OPR closing 6 April 2004, a PRF prepared for his BTZ consideration by the P0604A CSB, his OPR closing 6 April 2003, and his Meritorious Service Medal for the period 21 June 2001 – 27 May 2004.

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

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STATEMENT OF FACTS:

The applicant has two non-selections for promotion to the grade of colonel by the CY05A (12 September 2005) (PO605A), and CY06A (15 May 2006) (PO606A) Colonel CSBs.

He filed an appeal with the Evaluation Reports Appeal Board (ERAB).  The ERAB considered his application, and denied the requested relief in April 2006. 

The applicant was selected by the January 2007 Selective Early Retirement Board (SERB) to be involuntarily retired, effective 1 September 2007.

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AIR FORCE EVALUATION:

AFPC/DPPPEP recommends denial to void the PRF that met the PO605A Colonel CSB, and SSB consideration by that board.

Applicant states the PRF submitted to the promotion board was not completed IAW AFI 36-2406, table 8.1, line 12.  This reference states, in part, “Explain why the officer should or should not be promoted.  This section covers the entire record of performance and provides key performance factors from the officer’s entire career, not just recent performance.”  He received a “Do Not Promote This Board” (DNP) recommendation from his senior rater.  AFI 36-2406, paragraph 8.1.2.3.3 states “A “DNP” recommendation means the ratee does not warrant promotion and should not be promoted by the CSB for which the officer is eligible.  A senior rater must make comments, explaining to the CSB why the officer should not be promoted.”  The comment “Member removed from leadership position for creating a hostile and abusive work environment; using demeaning, inappropriate, and unprofessional language and conduct toward subordinates on multiple occasions” meets the criteria for a “DNP” promotion recommendation form, and the senior rater prepared the PRF in direct compliance with the current regulation.

He states “If this incident was serious enough to be commented on in my PRF, my Wing Commander should have extended the close-out date on my 6 Apr 05 Officer Performance Report (OPR).”  He provided as reference paragraph 3.7.5 from AFI 36-2406 which states, in part, “It is inappropriate for an evaluator to consider/comment on an event that occurs after the close-out date.  If an incident or event occurs between the time an annual report closes and the time it becomes a matter or record that is of such serious significance that inclusion in the report is warranted, an extension of the close-out date must be requested.  This includes completion of an investigation begun prior to the close-out date or confirmation of behavior that was only alleged as of the close-out date.”  The OPR in question (close-out date 6 April 2005) became a matter of record on 21 May 2005.  The reviewer signed and dated the report on 14 May 2005.  The report was then forwarded to HQ AFPC for filing in his Officer Selection Folder (OSR).  The report was completed and made a matter of record on 21 May 2005, and, from the information provided by the applicant, this is the same date the CDI was completed.  Thus, the reference provided is not valid because the report was made a matter of record the same day the investigation was completed.

He states “It was inappropriate for my evaluator to consider and comment on the CDI results within my PRF, let alone make it the sole comment on the form.”  AFI 36-2406, paragraph 1.3, Adverse Information, states, in part, “Evaluators are strongly encouraged to comment in performance reports (and the officer’s next PRF) on misconduct that reflects a disregard of the law, whether civil law or the Uniform Code of Military Justice (UCMJ), or when adverse actions such as Article 15, Letters of Reprimand, Admonishment, or Counseling, or placement on the Control Roster have been taken.”  When making the decision to record adverse information in reports, evaluators are to consider such factors as the impact of the misconduct on the Air Force mission, the Air Force as an institution, its relationship to the ratee’s duties, the grade, assignment, and experience of the ratee, the number of separate violations and frequency of the misconduct, the consequences of the misconduct, other dissimilar acts of misconduct during the report period, and the existence of unique, unusual, or extenuating circumstances.”  The evaluator accurately commented on his unacceptable behavior.

He states “Information about any alleged abuse or hostile work environment is irrelevant; there was no negative documentation of any kind in my record during this time period.”  It appears his senior rater felt the matter to be a serious breach of military bearing and discipline for which he had to take direct and responsive action.  The applicant was removed from the MSG/CD position for creating an abusive/offensive work environment, a point not in contention, and this impropriety was appropriately reflected in his PRF.  To remove the PRF from his record would be unfair to all other officers who were not removed from duty, and effectively performed their duties in an exemplary manner.  Removal of the contested PRF would make his record inaccurate.

He states “My 6 Apr 05 OPR covers the entire time period of the alleged inappropriate behavior.”  AFI 36-2406, paragraph 3.7.7, states, in part, “Raters should be particularly cautious about referring to charges preferred, investigations, or boards of inquiry….or using information obtained from those sources, or any similar actions relating to a member that is not complete as of the close-out date of the report.”  The rater could not, with good conviction, mention any of the allegations brought forth during the CDI until the investigation was closed and the findings presented to confirm/deny the accusations.  The applicant stated the CDI was completed on 21 May 2005, and his OPR closed out on 6 April 2005; thus, the rater was not obligated to mention this information since the OPR closed-out prior to completion of the investigation.

He received a copy of the contested PRF approximately 30 days before the CSB as required by AFI 36-2406, paragraph 8.1.4.1.7.  Although he contacted his senior rater after reviewing the PRF, it was still the senior rater’s decision as to what to include or not include in the PRF.  The applicant could have written a letter to the board to further explain his accomplishments or to clarify statements reflected on the PRF, and he apparently chose not to do so.  He states he did not receive a copy of the CDI until 29 November 2006, which prevented him from presenting a rebuttal or defense prior to the board convening.  Written instructions accompany the officer pre-selection brief (OPB) that all officers receive prior to being considered by a CSB, and specifically instruct the officer that they are responsible for reviewing their OPB for accuracy prior to board convening date.  They may address any concerns and discrepancies with their military personnel flight and their chain of command, if necessary.  These instructions also inform the officer they may correspond by letter to the board to call attention to any matter of record concerning them that they believe important to their consideration.  They specifically state that “Officers will not be considered by a Special Selection Board if, in exercising reasonable diligence, the officer should have discovered the error or omission in his/her records and diligence, the officer should have discovered the error or omission in his/her records and could have taken timely corrective action.”  Applicant had the opportunity to write the board president concerning the PRF; however, he chose not to do so and therefore his due process rights were not violated in any way.

CSBs evaluate the entire officer record to assess whole person factors, to include job performance, professional qualities, depth and breadth of experience, leadership, and academic and professional military education.  While his PRF may not be worded the way he would like to describe his accomplishments, the CSB has his entire OSR that clearly outlines his accomplishments since the day he came on active duty.  Furthermore, the “DNP” promotion recommendation by the senior rater is exactly that, a recommendation.  CSB members are empaneled as an independent body to factor the senior rater’s recommendation into their assessment of an officer’s record.  If, in their collective evaluation, an officer is deemed neither best nor fully qualified for promotion, the officer will not be promoted.

Although he feels the senior rater has over-stressed an isolated incident or a short period of substandard performance or conduct, the senior rater is obligated to consider such incidents, their significance, and the frequency with which they occurred in assessing performance and future promotion potential.  Only the senior rater knows how much an incident influenced the report.  

AFI 36-2401, A1.6.2.1 states, “To void a PRF, you must provide substantial evidence proving the PRF does not contain a valid promotion potential assessment, and that it is not possible to correct the form.”  The fact the rater is unwilling to provide additional documentation regarding the contested report shows he obviously, with a clear conscience, rendered a report he considers accurate, and the applicant has failed to provide substantial evidence proving the PRF is inaccurate as written.

The AFPC/DPPPEP evaluation is at Exhibit C.

AFPC/DPPRRP recommends denial of applicant’s request to remain on active duty until the AFBCMR decides whether the applicant is entitled to an SSB and, if the AFBCMR grants an SSB, to remain on active duty until the SSB results are released.

The applicant was selected for early retirement under the provisions of 10 USC, Section 638.  The law allows the Secretary to defer, for not more than 90 days, the retirement of an officer otherwise approved for early retirement under this section in order to prevent a personal hardship to the officer or for other humanitarian reasons.  The applicant has not requested deferment of his mandatory retirement for personal hardship or humanitarian reasons.

The law provides two other exceptions for continuation on active duty or deferment of retirement.  Title 10, United States Code (10 USC), Section 639, allows the Secretary to continue an officer for “any action that has been commenced against an officer with a view to trying such officer by court-martial…until completion of the action.”  10 USC, Section 640, allows the Secretary to defer the retirement “if the evaluation of the physical condition of the officer and determination of the officer’s entitlement to retirement…for physical disability require hospitalization or medical observation that cannot be completed before the date on which the officer would otherwise be required to retire.”  Applicant has not been placed on an administrative or a medical hold on his projected 1 September 2007 retirement date.

The law does not state an officer may be retained past a mandatory retirement date to await an AFBCMR decision to meet an SSB, or to await the outcome of such SSB if ordered by the AFBCMR.  If the applicant is permitted to remain on active duty to await the AFBCMR decision, it would not be equitable to those members also selected by the SERB for a 1 September 2007 mandatory retirement date.  Similarly, it would not be equitable to those members also selected by the SERB for a 1 September 2007 mandatory retirement date to grant applicant an SSB and/or allowing him to remain on active duty to await the SSB decision, which may or may not result in selection to the next grade.  If the AFBCMR recommends his records meet an SSB and he is selected for promotion, he may apply for additional relief as a result of those decisions.

The AFPC/ DPPRRP evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends that nowhere in his record is there any documentation to support the PRF that was written.  The PRF was not written IAW AFI 36-2406, table 8.1, line 12, which states “this section covers the entire career, not just recent performance.”  The review of his case by AFPC never answers why an incorrectly prepared PRF was accepted.  The PRF contains information that was not a part of his official record, and he has not been punished or given a chance to rebut this information.  The AFPC/DPPPEP representative shows the exact problem clearly in paragraph e. of their 24 April 2007 letter when it is stated “Apparently, the applicant made excuses for his behavior then, and is still convinced he did nothing wrong.”  It is not for anyone at AFPC to determine if any of his actions were improper, but merely to say if the regulations and instructions were followed, and if the forms were completed correctly.  This has been his concern all along – AFPC is tainted and not being fair and impartial in their reviews.

The entire problem stems from his Wing Commander at the time and his superior using the PRF (and subsequent OPRs and SERB forms) as a way to “punish” or correct his alleged bad behavior.  Instead, he should have been given the proper documentation in the form of a Letter of Counseling (LOC), Letter of Admonishment (LOA), or Letter of Reprimand (LOR), if warranted, to document the poor performance and provide him an opportunity to rebut the allegations and change his behavior as necessary, and this was never done.  

Nothing was ever put in his OSB or his official record and he has thus never been allowed to present a rebuttal to senior leaders.  Also, the CDI that was completed and seems to be the basis of all this negative action against him doesn’t completely or accurately document his interview with the investigator, and also doesn’t recommend he be punished in any way.

All he ever received was a short memorandum from his then Wing Commander telling him he was removing him from his position as the MSG Deputy Commander.  He was not afforded an opportunity to ask questions, present any type of defense, or submit any rebuttal or explanatory information after he received the memorandum, and the memorandum was not placed in his OSB.  Had he been given an LOC, LOA, or LOR, he would have been allowed to provide a rebuttal presenting his side of the story which would have been required to be attached to the memorandum, and to review the CDI immediately in order to provide a response.  He submits there wasn’t evidence to support any punishment action against him.

He has also not been able to review the judicial review and recommendations by the Pope AFB Staff Judge Advocate.  He submits that if the legal review supported action against him, he would have been provided the legal review as further evidence that he was a “screw up”, and the fact that it is being withheld from him speaks volumes.  The applicant then addressed his concerns with the opinions provided in each paragraph of the AFPC/DPPPEP 24 April 2007 advisory.  

While the AFPC/DPPRRP advisory goes to great lengths outlining the law regarding the SERB and points out that there are provisions in place for him to request a 90 day extension, it fails to mention that as the situation stands, he doesn’t qualify for said active duty extension, and this is why he is asking the AFBCMR for that relief.  He is dismayed by another AFPC representative being more concerned with the overall “equitability” to Air Force members as a whole.  What he is asking for is equitability for himself and his family.

Applicant’s complete response is at Exhibit F.
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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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  The applicant’s contentions are noted; however, from the evidence presented, it appears the senior rater accurately commented on his unacceptable behavior, and the applicant has failed to provide substantial evidence proving the PRF is inaccurate as written.  Evidence has been presented that he was removed from his leadership position for creating an abusive/offensive work environment, a point not in contention, and this impropriety appears to have been appropriately reflected in his PRF.  Although he contends the senior rater has over-stressed an isolated incident or a short period of substandard performance or conduct, the senior rater is obligated to consider such incidents, their significance, and the frequency with which they occurred in assessing performance and future promotion potential.  Only the senior rater knows how much an incident influenced the report, and it appears the senior rater prepared the PRF in direct compliance with the current regulation.  The CSB has his entire OSR that clearly outlines his accomplishments since the day he came on active duty and is empanelled as an independent body to factor the senior rater’s recommendation into their assessment of an officer’s overall record.  From the information provided by the applicant, the OPR closing 6 April 2005 became a matter of record the same day the CDI was completed; thus, the rater was not obligated to mention this information since the OPR closed-out prior to completion of the investigation.  The applicant was selected for early retirement under the provisions of 10 USC, Section 638, and the law does not permit an officer to be retained past a mandatory retirement date to await an AFBCMR decision to meet an SSB, or to await the outcome of such SSB if ordered by the AFBCMR.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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.

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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.

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The following members of the Board considered Docket Number BC-2007-00825 in Executive Session on 17 January 2008, under the provisions of AFI 36-2603:

				XXXXXXXXXX, Panel Chair
				XXXXXXXXXX, Member
				XXXXXXXXXX, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Mar 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPEP, dated 24 Apr 07.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 3 May 07.
    Exhibit E.  Letter, SAF/MRBR, dated 11 May 07.
    Exhibit F.  Letter, Applicant, dated 5 Jun 07.

                                   XXXXXXXXXX
                                   Panel Chair