RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02660 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: The AF IMT 707, Officer Performance Report (OPR) (Lt thru Col), rendered for the period 18 Feb 2007 through 13 Mar 2008, be removed from his records. ________________________________________________________________ APPLICANT CONTENDS THAT: In a 10-page brief of counsel, the applicant makes the following contentions: a. The applicant’s rating chain was not properly established in accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems, and MPFM 07-15, Part VII, Career Enhancement Procedures, and as a result he was rated by the wrong rating chain. b. The applicant’s rater inappropriately considered duty history and performance after the current reporting period and used unreliable information. It was an error for his rater to arbitrarily extend the report out to 13 Mar 2008 without authority; and that error was compounded by his rater’s reference to the derogatory event of his relief from command on 13 Mar 2008. c. The applicant’s rater was unfavorably biased by arbitrarily extending the close-out date of the contested OPR without any authorization to do so by the office of primary responsibility for approving such extensions, i.e., the Air Force Colonel's Group (AF/DPO). The rater further violated AFI 36-2406 by including the comments that falsely implied an investigation had been concluded during the rating period. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 30 Jun 2012, the applicant retired from the Air Force in the grade of colonel. The following is a resume of the applicant’s performance profile: Period Ending Performance Factor 12 Jul 2010 - 11 Jul 2011 Meets Standards 14 Mar 2010 - 11 Jul 2010 Meets Standards 14 Mar 2009 – 13 Mar 2010 Meets Standards 14 Mar 2008 – 13 Mar 2009 Meets Standards * 18 Feb 2007 - 13 Mar 2008 Does Not Meet Standards 8 Mar 2006 – 17 Feb 2006 Meets Standards 8 Mar 2005 – 7 Mar 2006 Meets Standards *Contested Report The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial. DPSID states that based on a lack of corroborating evidence and the administrative sufficiency pertaining to the Military Equal Opportunity (MEO) findings, they recommend that the evaluation not be voided from the his permanent record. The applicant has not provided compelling evidence to show the report is inaccurate as written. The applicant initially filed an appeal on 3 Dec 2011 through the Evaluation Report Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports. The provision states that an applicant is afforded a period of three years from the close-out of the report to submit an appeal for consideration. In the applicant’s case, he filed his initial appeal outside of the prescribed three-year period. The ERAB considered the applicant's appeal and was not convinced that the report was unjust or inaccurate and denied the applicants request for relief. Regarding the applicant’s contention that his rating chain was not properly established and as a result he was rated by the wrong rating chain, DPSID states that in accordance with MPFM 07-15, "When determining deployed rating chain, the rater should typically be the person who directly supervises the individual's day to day activities. The unit that owns the Unit Line Number (ULN) (and will typically have Tactical Control [TACON]) will determine the rating chain. In joint environments, an Air Force unit will be designated to have Administrative Control (ADCON) responsibilities." In the applicant’s case, he was in a dual- hatted role which made the rating chain not as clean as with most joint ULNs. Although the ADCON unit typically does not write evaluations, the TACON unit does have the authority to delegate to the ADCON unit. In the applicant's situation, Brigadier General (BG) G--- who represented the TACON organization relinquished control to the ADCON organization, represented by Col H--- to perform supervisory duties and accomplish the evaluation. The ADCON organization provided the day-to-day oversight of the officer which, in effect, met the standard of AFI 36-2406 when determining the rater. The applicant's predecessor, in the same position, was also evaluated by the same ADCON chain; therefore, any claim that the ADCON chain completing the applicant’s report for punitive reasons is without merit. Regarding the applicant's second allegation that his rater inappropriately considered duty history and performance after the current reporting period and unreliable information, he specifically references AFI 36-2406, paragraph 3.7.5., which states that "if an incident or event occurs between the time an annual report closes and the time it becomes a matter of record that is of such serious significance that inclusion in that report is warranted, an extension of the close-out date must be requested." The applicant contends that his rater, Col H--- did not seek authorization from AF/DPO to extend the close-out date of the report, but rather did so arbitrarily in order to justify a comment on the OPR, specifically of his being relieved of command for multiple reasons. He provides as evidence a signed memorandum from the HAF/IMIO Freedom of Information Act (FOIA) office which responded to his inquiry to determine if AF/DPO had previously authorized an extension to the close-out of the report. The results of the inquiry revealed that no records were found to validate an extension from AF/DPO was granted. However, the applicant has failed to provide any corroboration from any rating officials who signed the contested report, who might have provided further information as to whether or not such a request was ever submitted. In the absence of any definitive confirmation from these official sources that such a request was never submitted and approved, DPSID presumes that the close-out date was appropriately extended in accordance with AFI 36-2406. The applicant further makes a case along the lines that the dates of two negative actions that were reported on the contested OPR occurred outside a normal annual reporting period, and that one comment, specifically referencing an investigation, was even made outside of the extension period already reflected on the contested OPR. Concerning the first negative comment that he was relieved of command for multiple reasons, the applicant has not (as previously mentioned) proved that the extended period of the report is invalid, therefore this would not make the comment itself inappropriate to be placed on the OPR based on the timing of the action compared to the close-out of the report. In referencing the second negative comment that an investigation revealed mistreatment of subordinates, attempting to manipulate a Unit Climate Assessment (UCA) and disrespect of superiors, the applicant is making the assumption that this comment is directly referring to the Commander- Directed Investigation dated 31 Mar 2008. The applicant has provided no proof that this comment is referencing this specific investigation. Without substantiation from any of the authors of this contested evaluation, such a distinction is impossible to make. Therefore, without clarification from any member of the rating chain to confirm the applicant’s allegation, DPSID contends that this comment was valid and in accordance with all relevant established Air Force policies and procedures. Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record. Additionally, it is considered to represent the rating chain's best judgment at the time it is rendered. To effectively challenge an evaluation, it is necessary to hear from all the members of the rating chain- not only for support, but also for clarification/explanation. The applicant has failed to provide any information/support from either the rater or additional rater on the contested evaluation. It is determined that the report was accomplished in direct accordance with applicable regulations. DPSID contends that once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual's record. The burden of proof is on the applicant. He has not substantiated that the contested OPR was not rendered in good faith by all evaluators based on knowledge available at the time. The complete AFPC/DPSID evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel states there is no evidence regarding DPSID’s claim that the TACON commander relinquished control to the ADCON commander to perform supervisory duties over the applicant. The applicant and his rater were not co-located and the applicant was not performing administrative duties under an administrative chain of command, but was leading an operational unit in a combat theater. DPSID’s contention that the applicant’s predecessor in command was rated by the ADCON chain and that therefore his claim is without merit is also contradicted by the email at attachment 1 of counsel’s response. In this 26 Oct 2007 email, the applicant and his predecessor discuss the appropriate rating chain for the command position they both held. Made clear is the fact that MPFM 07-15, dated 20 Feb 2007, came into effect during his predecessor’s tenure. When the applicant asked his predecessor why the ADCON chain rendered his OPR, his predecessor stated that, when they received MPFM 07-15 in Mar 2007, there were no changes made for his team because new supervisors would not have the minimum 120 days of supervision. His predecessor then acknowledged that MPFM 07-15 "was too late to impact his team, but ... it would be a big player for your team." This email establishes that even the applicant’s predecessor in command, as far back as 26 Oct 2007, understood the requirement of MPFM 07-15 that the applicant must be rated by the TACON chain of command. Regarding the fact that the rater inappropriately considered the applicant’s duty history and performance after the current reporting period, DPSID states that notwithstanding the fact that a FOIA response revealed no records of a request for an extension of the closeout date on his OPR, they postulate the close-out date was appropriately extended. DPSID insinuates the applicant bears a burden of obtaining from his rater definitive confirmation as to whether or not such a request was submitted and approved. According to AFI 36-2603, Air Force Board for Correction Of Military Records, paragraph 4.1., an applicant has the burden of providing sufficient evidence of probable material error or injustice. This sufficient evidence standard is whatever the Board deems reliable and appropriate and does not equate to definitive confirmation. When it comes to presumptions of regularity of governmental functions, counsel believes that it should be presumed that if a request for an extension of the close-out date was submitted and approved, it would be on file and available both to the applicant (through his FOIA request) and the Board under the authority of AFI 36- 2603. DPSID’s contends that it was not inappropriate for his rater to refer to the applicant’s relief from command in the contested OPR because he was relieved during the rating period (in fact on the last day of the rating period). This argument assumes, of course, that a request for an extension of the closeout date was submitted and approved when it was not. It was inappropriate to imply that his relief from command was supported by an appropriate investigation. In the context of this case, any reasonable view of the evidence leads to the inescapable conclusion that his rater was referring to the Command Directed Investigation, an investigation that was only initiated the day after the improperly extended rating period closed out. AFI 36- 2406, paragraph 3.7.7, provides that raters must ensure that information relied upon to document performance, especially derogatory information relating to unsatisfactory behavior or misconduct is reliable and supported by substantial evidence. DPSID contends that the applicant has failed to provide any information or support from his former rater and that it is necessary to hear from the rating chain to "effectively" challenge an evaluation, and that this report was accomplished in direct accordance with applicable regulations. Counsel believes that he has demonstrated that the OPR in question was not accomplished in direct accordance with applicable regulations on multiple levels. Counsel’s complete response, with attachment, is at Exhibit E. ________________________________________________________________ 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 carefully reviewing the evidence of record, we are not persuaded that the contested report should be declared void and removed from his records. While Counsel's contentions are duly noted, we do not find his assertions, in and by themselves, sufficiently persuasive in this matter. We are also not persuaded by the evidence provided that the applicant’s rating chain was not properly established, that the comments contained in the report are in error, or that the report was prepared in a manner contrary to the provisions of the governing instruction. Although Counsel argues the close-out date of the report was extended without the proper authority and provides a copy of a FOIA request, he has not provided substantial evidence which would establish to our satisfaction that his report was improperly extended. In the absence of such evidence and given the presumption of regularity in the operation of governmental affairs, we must assume the close-out date was appropriately extended in accordance with AFI 36-2406. In view of above, we conclude the applicant has failed to sustain his burden that he has been the victim of an error or injustice. Therefore, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ 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 this application in Executive Session on 28 Mar 2013, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered in AFBCMR BC- 2012-02660: Exhibit A. DD Form 149, dated 19 Jun 2011, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 6 Aug 2012. Exhibit D. Letter, SAF/MRBR, dated 21 Aug 2012. Exhibit E. Rebuttal, Counsel, dated 16 Sep 2012, w/atchs. Panel Chair