RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:            DOCKET NUMBER:  BC-2007-04085
                             INDEX CODE:  111.01
	                           COUNSEL:  NONE
	                           HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His Officer Performance Report (OPR) for the period of 1 April 2004 through 26 February 2005 and his P0505A Promotion Recommendation Form (PRF) be voided and removed from his records. 
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APPLICANT CONTENDS THAT:

His feedback was not conducted pursuant to AFI 36-2406, Officer and Enlisted Evaluation Systems.  His OPR states feedback was accomplished 1 January 2005; however, this is the date he was removed from command.  At no time during the reporting period was informal feedback accomplished nor did he receive any type of verbal/written counseling indicating poor performance.  In addition, 14 of the 20 pages he submitted as his rebuttal were not forwarded as part of the official record.  Finally there is no evidence his squadron had a morale or performance problem.  Negative comments in the OPR are nonspecific/vague and not supported by the markings. 

In support of his request, applicant provides a personal memorandum, memorandums from his defense counsel, email correspondence, copy of a memorandum from 374 AW/CC, and copies of AF IMT 709, Promotion Recommendation, AF IMT 707A, Field Grade Officer Reports and character letters.

His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant was commissioned in the Regular Air Force on 8 April 1990 and was progressively promoted to the grade of major effective and with a date of rank of 1 August 2001.  

The applicant has four nonselections for promotion to the grade of lieutenant colonel.

The following is a resume of the applicant’s OPR profile:

	        PERIOD ENDINGS		OVERALL EVALUATION 

          26 Feb 07                MEETS STANDARDS (MS)
26 Feb 06                        MS
26 Feb 05                        MS (Contested Report)
31 Mar 04                        MS
31 Mar 03                        MS
31 Mar 02                        MS
31 Mar 01                        MS
31 Mar 00                        MS
31 Mar 99                        MS
31 Mar 98                        MS
31 Mar 97                        MS
31 Mar 96                        MS
31 Mar 95                        MS
31 Mar 94                        MS
31 Jul 93                        MS
31 Jul 92                        MS
30 Sep 91                        MS
26 Feb 91                        MS

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AIR FORCE EVALUATION:

AFPC/DPSIDEP recommends denial.  DPSIDEP states if the applicant can provide a statement from the rater that feedback was not accomplished, the Evaluation Reports Appeals Board (ERAB) could remove the 1 January 2005 date and replace it with the statement “Feedback was not accomplished.”  Unfortunately the applicant did not provide documentation that supports this.  A rater’s failure to conduct a required or requested feedback session will not of itself invalidate any subsequent performance reports or PRFs.  The applicant submitted statements in his support; however, he provided no documentation from any of the applicable evaluators.  He only presented his side of the story and DPSIDEP believes the local legal office would not have blessed a commander being relieved from command without sufficient cause.  DPSIDEP reviewed the statements in Section IV and determined it is in compliance with the directives.  DPSIDEP can only speculate the rater marked the applicant based on his overall performance during the entire reporting period; however, felt the contested statement was substantial enough that it warranted being mentioned.  An OPR that contains referral remarks can still have “Meets Standards” markings and vice versa.  The Air Force policy does not mandate that if you have referral remarks, you must downgrade the markings and vice versa.  The applicant submitted a 20-page rebuttal; unfortunately IAW with AFI 36-2406, the rebuttal is limited to 10 pages.  The OPR and PRF were not permitted to be filed IAW AFI 36-2406, which states that items which are already part of the permanent record will be removed from the referral package prior to filing.  AFI 36-2406 states the ratee may have another individual prepare comments on his or her behalf; however, when this is done, the ratee must include a statement confirming the document is to be considered as the ratee’s response.  The applicant did not provide such a statement, therefore unauthorized documents were removed.  This was explained to the applicant in the referral memorandum, which he signed.  However, if he feels strongly enough that the most important 10 pages did not get placed in his record, he could submit an appeal to the ERAB as long as it meets the requirements set forth in AFI 36-2406.  The applicant was instructed to submit his rebuttal to the additional rater.  The applicant states he turned in 20 pages; however, only 14 were placed in his records.  Since there is no evidence to state otherwise, i.e. a statement from the additional rater that he only reviewed 14 pages, DPSIDEP deeply believes the applicant turned in the rebuttal to the additional rater.  The additional rater took his action and forwarded it to the military personnel flight (MPF), who in turn forwarded the original to AFPC for file in the applicant’s officer selection record (OSR).  DPSIDEP believes the additional rater did in fact consider the entire 20 pages, when technically he was only required to consider the first 10 pages, therefore the statement that his rater carefully considered his comments to the referral memo should not be removed.  

To appeal a PRF, the applicant must provide support and documentation from the senior rater and management level review (MLR) president and any other pertinent documentation as outlined in AFI 36-2406 and AFI 36-2401.  Unfortunately the applicant provided no supporting documentation and there are no procedural or administrative errors or injustices contained in the contested PRF.  DPSIDEP states if the PRF is removed from the record for SSB consideration, the applicant will be placed at an unfair disadvantage since his record would be the only record without a PRF.  Removing the PRF would do more harm to him than leaving it in place.  

The complete DPSIDEP evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 22 February 2008 for review and comment within 30 days.  As of this date, this office has received no response (Exhibit D).

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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.  After reviewing the evidence of record, we are not persuaded that the contested report or PRF should be declared void and removed from his records.  We are not persuaded by the applicant's assertions that the comments contained in the report or the PRF were in error or contrary to the provisions of the governing instruction or that the applicant was rated unfairly.  Therefore, we agree with the opinion and recommendation of the Air Force and adopt its rationale as basis for our conclusion that the applicant has not been the victim of an error or injustice.  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 issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2007-04085 in Executive Session on 27 March 2008, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2007-04085 was considered:

    Exhibit A.  DD Form 149, dated 4 December 2007, w/atchs.
    Exhibit B.  Available Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSIDEP, dated 8 February 2008.
    Exhibit D.  Letter, SAF/MRBR, dated 22 February 2008.