RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER: BC-2008-02255 INDEX CODE: 111.01, 126.03
XXXXXXX	COUNSEL:	NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
1.	His Officer Performance Report (OPR) rendered for the period
30 December 2006 through 29 December 2007 be corrected to reflect “meets standards” in Section III, Performance Factors. (Subsequent to this application, the applicant submitted an appeal to the Evaluation Reports Appeal Board (ERAB) to remove the report from his records. The ERAB approved his appeal).

2.	The Letter of Reprimand (LOR) issued on 27 February 2008 and the Unfavorable Information File (UIF) be removed from his records. (Administratively Corrected).

3.	He be directly promoted to the grade of lieutenant colonel (Lt Col).

APPLICANT CONTENDS THAT:
He was denied due process during his OPR appeal. The 18th Wing Commander (18 WG/CC) signed the contested OPR on 3 April 2008, prior to reviewing his rebuttal comments submitted on 11 April 2008. In addition, the Secretary of the Air Force (SECAF) approved his Military Equal Opportunity (MEO) appeal and found that he did not create a hostile work environment, yet the 18th WG/CC refused to change the contested report.

In support of his request, the applicant provides a personal letter, copies of AF IMT 1587, Military Equal Opportunity Formal Complaint Summary; his LOR/UIF, the contested report, several letters and his AF IMT 709, Promotion Recommendation.

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

STATEMENT OF FACTS:
The applicant is currently serving in the Regular Air Force in the grade of major, having assumed that grade effective and with a date of rank (DOR) of 1 January 2005. The remaining relevant facts  pertaining  to  this  application,  extracted  from  the

applicant’s military records are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits D, E, F, and I.

The applicant was considered but was not selected for promotion to the grade of lieutenant colonel by the CY06C and the CY07B Below-the-Promotion Zone Lieutenant Colonel Central Selection Boards (CSB). He was also considered but not selected for lieutenant colonel by the CY08B CSB.

The applicant’s OPR profile since 2005 follows: PERIOD ENDING	OVERALL EVALUATION
29 Dec 05	Meets Standards
29 Dec 06	Meets Standards
*#29 Dec 07	Does Not Meet Standards (Referral Rpt)
* Contested Report.
# Top Report at the time he was considered and nonselected for promotion to the grade of lieutenant colonel by the CY08B Lieutenant Colonel CSB that convened on 8 September 2008.

Since the applicant submitted his application, the ERAB removed the contested report from his records on 25 June 2009, because his rater signed the report prior to receiving the applicant’s response to the contested OPR.

Per AFPC/PB, the referral OPR and the LOR/UIF was removed from the applicant’s master personnel records. On 21 September 2009, he considered and not selected for promotion to lieutenant colonel by an SSB.

AIR FORCE EVALUATION:
AFPC/DPSIM recommends approval of the applicant’s request to have the LOR removed from his records. DPSIM states  the commander that issued the LOR signed a statement of intent not to pursue disciplinary actions after the applicant’s last appeal was granted.

The complete DPSIM evaluation is attached at Exhibit D.
AFPC/DPSIDEP recommends denial of the applicant’s request to have the OPR corrected and the LOR/UIF removed. DPSIDEP states the OPR was previously corrected and the reference to the LOR was removed because that action took place after the close out date of the report. The inappropriate comments took place during the reporting period; therefore, the comments were appropriate.

The applicant contends the 18th WG/CC signed the contested OPR prior to reviewing his rebuttal comments submitted on 11 April 2008. However, an email from the WG/CC’s executive officer to the applicant’s area defense attorney explained that an administrative error occurred and the WG/CC signed the contested OPR on 23 April 2008 rather than 3 April 2008 at his temporary duty location. Based on this information, the contested OPR was correctly processed and signed.

The applicant also contends the Assistant SECAF approved his MEO appeal and found he did not create a hostile environment or commit sexual harassment; yet the WG/CC refused to change the contested OPR. The SECAF stated the preponderance of the evidence established that the statements made by the applicant were not severe or pervasive enough to constitute a hostile environment. However, the SECAF stated the finding did not address other allegations that surfaced during the investigation in regards to the professionalism of the overall work environment or the propriety of removing the applicant from his command position.

The complete DPSIDEP evaluation is at Exhibit E.
AFPC/DPSOO recommends denial of the applicant’s request for a direct promotion and states they were unable to substantiate that a material error or injustice exists in his record. Both Congress and DoD have made it clear their intent that errors ultimately affecting promotion should be resolved through the special selection board (SSB) process.

The complete DPSOO evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant states he would like the contested OPR removed from his records because it contained erroneous and prejudicial information that constitutes a material error and an injustice. He acknowledges the comments were inappropriate, but far from what one would expect to end an otherwise spotless 20-year career. Inappropriate language can be anything from saying a curse word, to making a remark on someone’s weight in public; however, his remarks fall well below the level of the crime of sexual harassment or creating a hostile work environment.

The Chief of Officer Promotions and Appointments states his record may be qualified for promotion but may not be the best qualified and a direct promotion would be unfair to all others who have extremely competitive records but were not promoted. The applicant states if his record were merely qualified, he would have not earned command for the largest radar unit in Japan. He was thoroughly vetted for the position of command and rose above the others of his rank and there is every reason to

think he would again, if given the opportunity to meet a promotion board with an accurate record. His group commander wanted the LOR/UIF and the referral OPR rescinded and his commander saw no reason he should not be considered  for promotion to the grade of lieutenant colonel.

The applicant respectfully requests the Board make meaningful the MEO appeal granted by the SECAF. A reasonable person would not give someone making a language gaffe the same punishment as one committing a crime. No promotion board will ever be able to accurately assess the whole person factors with the amount of damage that has occurred within his records. With the flawed record, he was denied an opportunity to compete fairly for promotion. Without a direct promotion, his present record can never show the true measure of his worth, which has always been the best, qualified.

The applicant’s complete response is at Exhibit H.

ADDITIONAL AIR FORCE EVALUATION:
AF/JAA recommends denial of the applicant’s request for direct promotion. JAA notes his OPR, LOR/UIF have been removed from his record. While the applicant states his OPR and PRF contains information that constitutes a material error or injustice and that no promotion board will ever be able to accurately assess the whole person factors with the amount of damage that has occurred in his record, JAA disagrees. JAA states the results of a CSB are based on the review of a member’s entire selection record encompassing all facets of their record including job performance, professional qualities, leadership ability and breadth of experience. Each record is evaluated for the limited number of promotion vacancies available with all other applicants. The CSB is vested with the discretionary authority to make such decisions and bypassing this process to directly promote the applicant should only be used in the most egregious situations. JAA does not believe the factors in this case warrant such a result. Moreover, granting a direct promotion would be unfair to all other officers with stellar records who did not get promoted during these boards. JAA states the proper channel for relief is through the SSB process.

The complete JAA evaluation is at Exhibit I.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
The applicant states there are no longer any derogatory statements in his record; however, there is a large void. He appreciates the effort his senior leadership took to remove the referral OPR, but the work he accomplished as a commander was removed as well. The highlights in his career will never be known. His senior rater removed all derogatory comments from his records, but the PRF for the above the promotion (APZ) board states his UIF was pulled from his records, which defeats the purpose of removing derogatory remarks from the record. There should be no mention as to why he does not have an OPR for that reporting period. If it were not for the groundless accusations made against him, the original stellar PRF would have met the board. No SSB can accurately assess his entire record when there are such gaps. Further, the applicant discussed several other events that have occurred based on being falsely accused.

Lastly, he states he has always exceeded standards and expectations. He discusses many of his accomplishments and achievements as both enlisted member and officer. He states he had many conversations with his rater on his job performance and expected single digit stratification out of 80 majors in the group. Since he was falsely accused of sexual harassment, a direct promotion would be the fair and just judgment.

The applicant’s complete response, with attachments, is attached 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 warranting the applicant's direct promotion to the grade of lieutenant colonel. In that  regard we note that subsequent to the applicant's request to this Board, the letter of reprimand he received was removed from his record and the ERAB granted an appeal to void the officer performance report he requested be corrected. Additionally, the ERAB granted the applicant promotion consideration by SSB. Therefore, the only issue for our consideration is the applicant's request for direct promotion. The applicant argues that he is the victim of errors in his officer selection record due to initially being found guilty of sexual-harassment charges, charges he states he has been  exonerated  of by the approval of his appeal by the
1.	

Secretary	of	the	Air	Force's	designee.	Consequently,	he	
asserts,	his	officer	selection	record	has	been	irreparably	
damaged so that the only fair and equitable relief is his direct promotion. We do not agree. Although we have been informed that since he filed his appeal the applicant was considered but not selected for promotion by a special selection board, we continue to believe the most appropriate method to deal with errors ultimately affecting promotion is through the use of special selection boards. While regrettable the applicant was not selected, we find no evidence and have no basis to believe he did not receive fair and equitable promotion consideration. We also believe that direct promotion should only be used under the most egregious circumstances, which are not present in this case. While we note the outcome of the applicant’s MEO appeal, as pointed out by AFPC/DPSIDEP, the finding in the applicant's case stated the "preponderance of credible evidence establishes that the statements made to the complainant were not severe or pervasive enough to constitute a hostile environment based upon sex for a reasonable person." The finding also states, in essence, that it does not address other allegations  that surfaced during the investigation of the complainant, or the professionalism of the overall work environment or the propriety of removing the applicant from his command position. In our view, the evidence of record clearly establishes the applicant engaged in inappropriate conduct, albeit not of a degree to create a hostile work environment based upon sex. Therefore, we believe the applicant directly contributed to the circumstances in his case and has not established that he is the victim of an error or injustice so egregious that it warrants his direct promotion. It is our recommendation the requested relief be denied.

THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not demonstrate the existence of a 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- 2009-02255 in Executive Session on 25 February and 29 April 2010, under the provisions of AFI 36-2603:

Panel Chair Member Member

The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 16 Feb 09, w/atchs. Exhibit B. MEO Complaint (Removed), dated 8 Nov 07. Exhibit C. Letter, PACAF/CV, dated 9 Apr 08.
Exhibit D. Letter, AFPC/DPSIM, dated 20 Mar 09.
Exhibit E. Letter, AFPC/DPSIDEP, dated 13 May 09, w/atchs. Exhibit F. Letter, AFPC/DPSOO, dated 20 May 09.
Exhibit G. Letter, SAF/MRBR, dated 2 Jun 09.
Exhibit H. Applicant’s Response, dated 29 Jun 09, w/atchs. Exhibit I. Letter, AF/JAA, dated 7 Dec 09.
Exhibit J. Letter, AFBCMR, dated 28 Dec 09, w/atch. Exhibit K. Applicant’s Response, dated 19 Jan 10, w/atchs.