RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-03006
		INDEX CODE:  110.03, 131.10

		COUNSEL:  

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

	1.  Her non-selection for active duty retention by the Force Shaping Board (FSB), which convened on 26 June 2006, and any derogatory records be set aside.

	2.  Her 17 November 2006 involuntary release from active duty be set aside and her records expunged.  

	3.  She be reinstated from her current Air Force Reserve status back on active duty and awarded all back/pay allowances, with the appropriate record corrections reflecting any non-rated time as no fault of the officer.  

	4.  Her application be processed as a reprisal claim in accordance with AFI 36-2603; DODD 7050.6 and 10 USC 1034.  

	5.  In the alternative, process this appeal under 10 USC 1552 as an error or injustice.  

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APPLICANT CONTENDS THAT:

Her separation from active duty was improper because of a Retention Recommendation Form (RRF) that incorrectly and improperly characterized the quality of her service.  She further contends the wrongful RRF was written in retaliation for having filed Inspector General (IG) complaints which she alleges angered the base’s command structure.  

In support of her appeal, the applicant submits a statement from counsel; a copy of her AF IMT 3538, Retention Recommendation Form, dated 6 Feb 06; copies of her DD Forms 214, Certificate of Release or Discharge from Active Duty, issued 27 Aug 01 and 17 Nov 06; copies of awards and decorations she received during her career; copies of officer performance reports (OPRs) during the period 15 Aug 02 through 14 Aug 06; extracts from her DOD IG complaint, hotline complaint and other supporting documents.

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

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STATEMENT OF FACTS:

Prior to the events under review, the applicant served in the Regular Air Force from 23 May 1994 to 27 August 2001.  She was progressively promoted to the rank of staff sergeant.  

She was commissioned on 6 June 2002 and entered active duty on 15 August 2002 in the rank of second lieutenant.  

The applicant's OPR profile for the last four reporting periods follows:

	PERIOD ENDING	OVERALL EVALUATION

	14 Aug 03	Meet Standards (MS)
	14 Aug 04	MS
	14 Aug 05	MS
	14 Aug 06	MS

On 10 April and 26 Jun 2006, she met and was nonselected for retention by two FSBs.  She was progressively promoted to the rank of captain with an effective date and date of rank of 9 July 2006.  

On 17 November 2006, she was honorably released from active duty and transferred to the Air Force Reserve under the provisions of AFI 36-3207 (Reduction in Force).  She was credited with four years, three months, and three days of active duty service during this period.  

On 31 August 2007, she was transferred from the Air Force Reserve Obligated Reserve Section (ORS) to an Individual Mobilization Augmentee (IMA) position with the Oklahoma City Air Logistics Center (ALC), at Tinker AFB, OK.  

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AIR FORCE EVALUATION:

HQ AFPC/DPSOS reviewed this application and deferred to the discretion of the Board.  

AFPC/DPSOS indicates that while they understand the commander has the prerogative to rank officers as he or she sees fit, the applicant’s ranking appears questionable based on the evidence presented.  She makes several valid points regarding her #2 of 2 within her AFSC when the month before the RRF was signed and dated; she was the recipient of one individual and two team major command level awards (Financial Analysis Officer of the Year, Financial Analysis Office of the Year and the Special Acts and Services Award).  

According to AFPC/DPSOS, they found no procedural errors or injustices in the processing of the applicant’s discharge.

The HQ AFPC/DPSOS’s complete evaluation is at Exhibit C.

HQ AFPC/JA recommends the applicant’s nonselection for retention by the 6 June 2006 FSB be set aside and that she be considered by a special FSB selection board utilizing a corrected RRF.

Prior to her consideration by the 26 June 2006 FSB, the applicant had established an outstanding record of service.  Her 2004 OPR reflects her having been selected Company Grade Officer (CGO) of the Quarter; her 04-05 OPR rater ranked her number 1 of 3 lieutenants in the organization; her 05-06 OPR rater ranked her number 1 of 2 in FMA (in addition, her office received the Fiscal Year  2005 (FY05) Air Mobility Command (AMC) Financial Analysis Office of the Year award); and the additional rater on the 05-06 OPR ranked her number 1 of 17 AMC budget officers (based on her winning the AMC’s Budget Officer of the Year award).  The RRF signed by XXXXXXXXXXXXXXXXXX (the commander and senior rater) for the 06 FSB summarized the outstanding record in the Block IV Evaluator Comments.  Notwithstanding that, however, he also commented:

	“In his/her year group, this officer ranks #8 of 9 in my unit.
	In his/her year group, this officer ranks #2 of 2 of his/her C	CORE AFSC in my unit.”  

It is pretty obvious that this latter comment by the senior rater is totally at odds with everything documented concerning the applicant’s performance.  The comment is totally inconsistent with the word picture written in the same document.  Nothing in the applicant’s record of performance would even begin to justify a downgrade from the highest ratings and rankings, nor do any official documents of record explain such a departure.

The applicant, however, has offered an explanation for this about face on the part of her senior rater which, in the absence of any evidence to the contrary, establishes “(by what we believe to be a preponderance of the evidence of record)” that the senior rater acted improperly and as an act of retaliation for the applicant having filed two IG complaints.  In the statements attached to her counsel’s brief, she has detailed a series of events wherein her supervisory chain (and Wing Commander, in particular) reacted adversely to IG complaints she filed regarding her upcoming assignment and what she believed to be reprisal action taken in response to her first complaint.  

Given the applicant’s outstanding record of performance, there is little doubt that the senior rater’s strong negative characterization of the applicant in her RRF was a contributing, if not determinative, factor in her nonselection for retention.  As a consequence, the best resolution of this issue is to correct the 6 February 2006 RRF by deleting the remarks in Block VII, setting aside the applicant’s nonselection for retention by the 2006 FSB, and ordering the applicant be reconsidered for retention by a special (FSB) selection board utilizing the corrected RRF.

HQ AFPC/JA’s complete submission is at Exhibit D.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel states that a careful interpretation of the two advisory opinions, their factual conclusions and legal analyses, both directly and indirectly—establish the applicant’s case meets the threshold of a special “egregious” case of material error or “fundamental error,” or involved an “impermissible factor” of unlawful reprisal that was designed by the RRF officials to ensure nonselection.  (1) The brazen public threats of retaliation followed by personal reprisal by senior officers calculated to derail her retention, and (2) where the material error was “the determinative factor” in her discharge, as conceded by JA.  (3) The BCMR has both the authority and history to craft a whole remedy in these distinctive cases: it corrects the material error, does not require a relook board, and then voids the discharge to reinstate with pay.  In this case the harmless error test normally applied by relook boards is unnecessary moot—it will only prolong the inevitable retention result while forever damaging the applicant’s ability to catch up with her peers’ active duty performance.

The 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.  After a thorough review of the facts and circumstances of this case, the Board agrees with AFPC/JA that corrective action is warranted.  It notes that prior to the 10 Apr 06 FSB that resulted in her nonselection for retention, the applicant had established an outstanding record of service.  In view of this, it also agrees with AFPC/JA that her senior rater’s strong negative characterization of her in the RRF was a contributing factor in her nonselection for retention.  The applicant contends the RRF was a retaliatory act for her having filed an IG complaint.  The Board does find the senior rater’s comments in the RRF to be totally inconsistent with her documented performance.  Therefore, it is persuaded that any doubt regarding her fair and equitable consideration by the above-mentioned FSB should be resolved in favor of the applicant.  The Board notes AFPC/JA recommends the RRF be amended by deleting the senior rater’s comments in Section VII; her nonselection for retention be set aside; and her record be considered by a special FSB, with the inclusion of a corrected RRF.  However, the majority of the Board believes that thorough and fitting relief in this case would be to correct her records to show that she was selected for retention by the 10 Apr 06 FSB, and to reinstate her to active duty.  Accordingly, the majority recommends the applicant’s records be corrected as set forth below.

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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

	a.  She was selected for retention by the Force Shaping Board, which convened on 10 April 2006.

	b.  She was not released from the Air Force on 17 November 2006, but continued to serve on extended active duty and was ordered Permanent Change of Station (PCS) to her home of record or home of selection pending further orders.  

	c.  Any nonselections for promotion to the grade of major prior to receiving a minimum of three Officer Performance Reports (OPRs) with at least 250 days of supervision in the grade of captain be set aside.  

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The following members of the Board considered AFBCMR Docket Number BC-2008-03006 in Executive Session on 15 May 2009, under the provisions of AFI 36-2603:

Panel Chair
Member
Member

By a majority, the members voted to correct the records, as recommended by HQ AFPC/JA.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 14 Jul 08, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, HQ AFPC/DPSOS, dated 19 Nov 08.
     Exhibit D.  Letter, HQ AFPC/JA, dated 18 Dec 08.
     Exhibit E.  Letter, SAF/MRBR, dated 9 Jan 08.
     Exhibit F.  Letter, Applicant, dated 31 Mar 09.

                                   
                                   Panel Chair

AFBCMR BC-2008-03006

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 APPLICANT, be corrected to show that:

	a.  She was selected for retention by the Force Shaping Board, which convened on 10 April 2006.

	b.  She was not released from the Air Force on 17 November 2006, but continued to serve on extended active duty and was ordered Permanent Change of Station (PCS) to her home of record or home of selection pending further orders.  

	c.  Any nonselections for promotion to the grade of major prior to receiving a minimum of three Officer Performance Reports (OPRs) with at least 250 days of supervision in the grade of captain be, and hereby are, set aside.  

		
		Director
		Air Force Review Boards Agency