RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01366 COUNSEL: HEARING DESIRED: YES ____________________________________________________________ APPLICANT REQUESTS THAT: 1. Her Officer Performance Report rendered for the period 5 April 2009 through 18 December 2009 be expunged from her record. 2. Her Letter of Reprimand (LOR), dated 8 July 2009, be expunged from her Officer Selection Record (OSR). 3. Her permanent disqualification from the Personnel Reliability Program (PRP) be expunged from her record. ______________________________________________________________ APPLICANT CONTENDS THAT: The adverse actions taken against her were taken without proof and without regard for her demonstrated integrity throughout her career. Senior Air Force officers knowingly and willingly destroyed her career as an African-American officer and pilot. Her squadron commander had motive to harm her career because of his anti-female bias and the fact he was preoccupied with her husband’s alleged crimes and the presumption that she was “guilty by association.” This is evident by the substantiation of an Military Equal Opportunity (MEO) allegation that an environment hostile to females existed within her squadron. In support of her appeal, the applicant provides a statement from her counsel, and copies of the contested OPR, LOR, personal information documents, PRP decertification, Spirit and Intent interview slides, her response to the LOR, witness statement and interview notes, electronic communications, memo for record, Commander Directed Investigation (CDI) appointment letter, CDI background, biography, OPRs, interviews, and disposition of Informal Military Equal Opportunity (MEO) Allegations. 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 (O-4). On 28 May 2009, the applicant’s commander initiated an investigation as the result of the applicant’s PRP interview. It was alleged the applicant knowingly and willfully failed to reveal that she was questioned by the Air Force Office of Special Investigations (AFOSI) in 2004 in conjunction with her husband’s court-martial for drug use while he was on active duty. The CDI was conducted from 28 May 2009 to 5 June 2009 at Aviano Air Base, Italy, to investigate the allegation that the applicant failed to comply with her obligations pursuant to the PRP and her security clearance status by misleading, or by omitting material information to the United States Air Force with regard to her husband’s criminal activities. The CDI Report of Investigation, dated 5 June 2009, indicates the allegation was substantiated. On 8 July 2009, she was issued an LOR for providing a false statement to her squadron commander during a “Spirit of Intent” PRP Interview in violation of Article 92, Uniform Code of Military Justice (UCMJ). The applicant acknowledged receipt of the LOR and provided a response on 20 July 2009. On 30 July 2009, after reviewing the applicant’s written matters, her group commander decided to uphold the LOR. As a result, an Unfavorable Information File (UIF) was updated in the Military Personnel Data System with an expiration date of 7 July 2011. On 20 October 2009, the applicant’s wing commander decided the LOR would be filed in her OSR. The applicant received a referral OPR for the period 9 April 2009 through 18 December 2009 due to the substantiated allegation of providing a false official statement during a “Spirit and Intent” PRP recertification interview. The applicant filed an appeal through the Evaluation Reports Appeal Board (ERAB); however, the ERAB was not convinced the report was unjust or inaccurate and denied her request for relief. A 31st Fighter Wing Commander’s letter, dated 25 February 2010, Subject: Informal Military Equal Opportunity (MEO) Allegations, addressed to the applicant, indicated that five of six allegations were not substantiated. However, the one substantiated allegation indicated there was an environment hostile to females within the 555th Fighter Squadron as a result of the squadron visual signal (a sexual reference to what a man could do with his fingers when penetrating a woman’s vagina and anus simultaneously); displaying “swimsuit issue” type photos of women during weapons academics; displaying pornographic images of women during periodic squadron events of “Merges;” and/or having pornographic materials prevalent within the squadron area, to include the bar area. On 28 November 2011, the applicant’s counsel requested her appeal be temporarily withdrawn to allow the applicant time to respond to multiple advisory opinions. On 12 January 2012, the applicant’s counsel requested his client’s appeal be reinstated. The remaining relevant facts, extracted from the applicant’s military service records, are contained in the evaluations by the Air Force offices of primary responsibility at Exhibits C through F. ____________________________________________________________ AIR FORCE EVALUATIONS: AFPC/DPSIMC recommends denying the applicant’s request to have her LOR and UIF removed from her OSR. DPSIMC states that as directed by Air Force Instruction (AFI) 36-2907, Unfavorable Information File Program, the LOR and UIF are official records of unfavorable information on a member that are initiated by a member’s commander. The UIF is a file for documenting administrative, judicial, or non-judicial censures concerning negative aspects of the member’s performance, responsibility, or behavior. LORs are mandatory for file in the UIF for commissioned officers. DPSIMC indicates that after reviewing the applicant’s request, they have validated the process was done in accordance with AFI 36-2907. The commander acted within his authority when deciding to place the applicant on an LOR/UIF. The complete DPSIMC evaluation, with attachment, is at Exhibit C. AFPC/DPSIDE recommends denying the applicant’s request to void and remove the contested OPR. DPSIDE states that based upon DPSMIC’s evaluation indicating that the legitimacy of the applicant’s LOR is not in question, its inclusion as a comment in the referral OPR is appropriate and in line with all applicable Air Force instructions and guidance. An evaluation report is considered to represent the rating chain’s best judgment at the time it is rendered. Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record. The applicant has not substantiated in any way that the contested OPR was not rendered in good faith by all evaluators based on the knowledge available at the time. DPSIDE states the applicant has not provided compelling evidence to show that the report is unjust or inaccurate as written. Based on the lack of corroborating evidence provided, and the CDI finding that backs up the allegation of misconduct, they recommend that the report not be voided from the applicant’s permanent record. The complete DPSIDE evaluation is at Exhibit D. AFPC/PB recommends denying the applicant’s request to remove her LOR from her OSR. PB states that AFI 36-2608, Chapter 9, establishes procedures for filing LORs into the OSR and removal/early removal procedures for officers. Paragraph 9.3.8, specifically states a LOR will remain filed in the OSR until the officer is afforded one In-the-Primary Zone (IPZ) or Above-the- Primary Zone (APZ) promotion consideration. The applicant will meet the Calendar Year 2012A Lieutenant Colonel Board tentatively scheduled for March 2012. She may appeal to her senior rater after her IPZ look to have it removed. They have found no record that the wing commander or issuing authority made a decision to direct early removal of the LOR from the OSR. The complete PB evaluation, with attachment, is at Exhibit E. AFPC/JA recommends denial. JA states that after reviewing the case file and the advisories provided by other AFPC directorates, they concur with the Air Force advisory recommendations. The applicant has provided no evidence to support her appeal other than her own versions of the events. The CDI conducted by an impartial investigating officer, corroborated the squadron commander’s version of events, and substantiated the applicant failed to comply with her obligations pursuant to PRP and her security clearance status by misleading, or by omitting material information to the Air Force with regard to her husband’s criminal activities. The complete JA evaluation is at Exhibit F. ____________________________________________________________ COUNSEL’S REVIEW OF AIR FORCE EVALUATIONS: Two of the four advisory opinions are of no probative value. They merely recite what is already known about the procedural status of the case. JA remarkably finds proof that the applicant lied in the year old recollection of an interviewer who said generally that he used a list of written questions and that the applicant must have answered “no” to these questions. As they have previously demonstrated in their application, the interviewer could not say anything more than he generally asked all 14 interviewees the written questions and that the applicant must have answered “no” because there was no discussion of the substance of the question relating to family members being interviewed by the Air Force Office of Investigation (AFOSI). There is no “answer recorded” anywhere. Had there been a contemporaneous memorialization of his client’s answers to each question they would not be filing this appeal; however, there was none. Her voluntary disclosure on 29 May 2009 contradicts the conclusion that she lied a year earlier, particularly in view of the fact that on 26 May 2009 her husband was a criminal suspect and her involvement at the time was unknown. The interviewer’s concern over the applicant’s husband was the prime motivator here. Relief should be granted. The counsel’s complete rebuttal, with attachments, is at Exhibit H. ______________________________________________________________ THE BOARD RECOMMENDS 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 and find that the applicant’s entire argument hinges upon the assertion that the PRP Certification Interviewer did not verbalize several questions during the briefing, one of which was the question about her ever being interviewed by AFOSI. However, we find no evidence to support the conclusion that the interviewer skipped several questions, to include this question, as normal procedures is that all questions in this type of briefing are required to be asked. The applicant has provided no evidence to support her contentions other than her own version of the events. A CDI substantiated the applicant misled, or omitted material information to the United States Air Force with regard to her husband’s criminal activities during her PRP “Spirit of Intent” interview. In considering the complete evidence, the results of the CDI, and the circumstances of this case in its totality, we believe in this instance any doubt should be resolved under the presumption that the commander, with exception of documenting all responses, conducted the PRP interview properly. We note the applicant indicates, through her counsel, that she read the PRP Certification questions on the interviewer’s computer screen. Due to the seriousness of the interview and the applicant’s position as an Air Force officer, we believe the applicant was obligated to answer all questions and be forthcoming with any information even if it could be considered derogatory. As a result, we find the applicant has not provided evidence to show the commander’s actions were arbitrary or capricious or exceeded his discretionary authority. Therefore, we agree with the opinions and recommendations 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. Accordingly, we find no 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. ______________________________________________________________ _ 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. ______________________________________________________________ _ The following members of the Board considered AFBCMR Docket Number BC-2012-01366 in Executive Session on 30 August 2012, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2012-01366: Exhibit A. DD Form 149, dated 12 Jan 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIMC, dated 31 May 11, w/atch. Exhibit D. Letter, AFPC/DPSIDE, dated 29 Aug 11. Exhibit E. Letter, AFPC/PB, dated 23 Sep 11, w/atch. Exhibit F. Letter, AFPC/JA, dated 11 Oct 11. Exhibit G. Letter, SAF/MRBR, dated 28 Oct 11. Exhibit H. Letter, Counsel, dated 12 Jan 12, w/atchs. Exhibit I. Unredacted Commander Directed Report of Investigation (withdrawn) Panel Chair 8 6