RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03790 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His AF Form 707, Officer Performance Report (Lt thru Col) rendered for the period 30 May 10 thru 29 May 11 be removed. 2. His letter of reprimand (LOR), dated 26 Apr 11 be removed. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. His referral OPR is unjust and in violation of AFI 36-2406, Officer and Enlisted Evaluation because it is based solely on an event that occurred outside of the reporting period. 2. His referral OPR claims that “he engaged in an unprofessional sexual conduct with an enlisted member in violation of AFI 36- 2909, Professional and Unprofessional Relationships and received a LOR.” 3. In 2009, he engaged in consensual sex with an individual who, unbeknownst to him at the time, was enlisted in the United States Army and stationed at an Army post in the same geographical area; however, there is no evidence that it “continued to influence his performance or utilization.” 4. He received an OPR; letter of evaluation (LOE); Army Commendation Medal (ARCOM); and a formal training evaluation, none of which explicitly or implicitly suggest the incident continued to affect his performance or utilization. 5. During the rating period, his superior summarily concluded that in 2009 he violated AFI 36-2909 and subsequently issued him a LOR that he has been unable to challenge outside of writing a response to him. His superior’s conclusions were in direct contrast to the conclusions of a fair and impartial review of the incident performed by a Judge Advocate (JA). In support of his request, the applicant provides copies of his AF Forms 707; AF Form 77, Letter of Evaluation; AF Form 475, Educations/Training Report; DA Form 4980-14, Department of the Army – The Army Commendation Medal citation; LOR, and various documents in support of his application. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Air Force in the grade of first lieutenant. On 4 Nov 11, AFPC/DPSIMC requested the applicant provide additional supporting documentation to substantiate his claim. Specifically, the completed LOR he thought was unjustified. On 5 Dec 11, the applicant provided a copy of his LOR. The applicant did not file an appeal through the Evaluation Reports Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits C thru E. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIMC recommends denial of the applicant’s request to remove the LOR dated 26 Apr 11. DPSIMC states in accordance with (IAW) 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. The complete DPSIMC evaluation is at Exhibit C. AFPC/DPSID recommends denial of the applicant’s request to remove the contested OPR. DPSID states the applicant is incorrect in his assertion that since the unprofessional conduct did not technically occur within the rating period, its conclusion in the contested OPR is somehow invalid. The applicant was likely under investigation during portions of both the preceding OPR and the OPR the applicant is contesting. IAW AFI 36-2406, the rating chain should not include comments regarding events which occurred in a previous reporting period, unless the events add significantly to the evaluation report, were not known to and considered by the previous evaluators, and were not previously reflected in an evaluation report. In this case, the investigation, based on the date of the LOR clearly had concluded prior to the close-out of the contested report. No evidence exists in the applicant’s case to make the conclusion that the rating chain had knowledge of this incident during the prior reporting period. The rating chain was well within their prerogative in reporting this misconduct on the contested referral OPR. Regarding the applicant’s opinion that his unprofessional conduct did not have any influence in his performance or utilization during the reporting period, this opinion is irrelevant to the sufficiency or validity of the OPR in question. It was not he, but rather the rating chain, who were in the best position to make those kinds of judgments. In any event, there were no negative comments by the rating chain on the contested OPR referencing any poor performance by the applicant or inability to utilize the applicant on the report itself. Regarding the applicant’s implication that he was not in violation of AFI 36-2909 and that any violation on his part of this instruction was only in his superior’s mind, we must point out that the title of this AFI is “Professional and Unprofessional Relationships.” Based upon the conduct of the applicant depicted by the rater in the LOR, it is clearly not possible to draw any other conclusion than the applicant engaged in an unprofessional relationship, if however brief, and of which he freely admits to in this case. Finally, DPSIM has provided an advisory in the case in which they have validated that the process was done IAW AFI 36-2907. The applicant has failed to provide any information/support from any member of the rating chain on the contested evaluation, nor has he provided an Inspector General (IG) or Equal Opportunity Treatment (EOT) findings regarding the incident which he references, that may have been germane to his appeal. DPSID determined 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 warrant correction or removal from an individual’s record. The applicant has not substantiated that the contested OPR was not rendered in good faith by all evaluators based on knowledge available at the time, nor has he provided any compelling evidence to show that the report is unjust or inaccurate as written. The complete DPSID evaluation is at Exhibit D. AFPC/JA concurs with the advisory opinions of AFPC/DPSID and DPSIMD. AFPC/JA will address the applicant’s contention that the conclusions by the author of the LOR and OPR are in “direct contrast to the conclusions of a fair and impartial review of the incident performed by a Judge Advocate” (JA). The JA in question was the Article 32, Uniform Code of Military Justice (UCMJ), Investigating Officer (IO) assigned to examine criminal charges preferred against the applicant in order to make a recommendation to the Convening Authority whether the charges should go forward to be prosecuted at a court-martial. At the outset, it is critical to note that the examination of evidence by the IO is to determine if a likelihood exists that the charges (or modified charges, if changes were to be made to them) can be proven in a criminal trial beyond a reasonable doubt – the standard of proof at a court-martial. That is a far greater burden than the preponderance of the evidence standard used in reporting adverse behavior in an LOR and/or OPR. Thus, any conclusions reached by the Article 32 IO were with a view towards proof at a court-martial and not with regard to supporting an LOR or OPR. Moreover, what the IO determined was not that the evidence of record contradicted the applicant’s guilt of the charged offenses, but that there were gaps and problems with the proof with respect to proving the specified criminal charges in court beyond a reasonable doubt. More specifically, the allegation contained in the LOR that the applicant “engaged in sexual intercourse with a Private First Class, while she was drunk, in an open and notorious manner in the backyard of an active duty member’s off-base residence” is a true statement that is not contradicted by the evidence discussed by the Article 32 IO. In fact, the applicant has admitted to all but the “notorious” part of the allegation. Given his status as an Air Force officer, that element can be readily inferred from the overall circumstances. Likewise, the referral statement in the OPR constitutes a true statement that is established by a preponderance of the available evidence. While the Article 32 IO may have expressed a “reasonable doubt” about the applicant’s knowledge of the victim’s status as an enlisted member or his having committed a criminal violation of the custom of the service, he once again was referring solely to the potential proof of specified charges at a criminal trial where the standard of proof is much greater; the IO never addressed whether the overall evidence established that allegations contained in the LOR and OPR by the requisite preponderance standard. Finally, JA states the applicant’s reliance on some of the conclusions reached by the Article 32, UCMJ, IO, is misplaced and not applicable to the issue of the legality and justification for the adverse actions taken here. The complete JA evaluation is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 30 Mar 12 for review and comment within 30 days. As of this date, this office has received no response (Exhibit F). _________________________________________________________________ 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. We took careful notice of the applicant's complete submission in judging the merits of the case; however, 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. We do not find his assertions, in and by themselves, sufficiently persuasive in this matter. Evidence has not been presented which would lead us to believe that the LOR he received was improper. Additionally, we are not persuaded by the evidence provided that the contested report is not a true and accurate assessment of his performance and demonstrated potential during the specified time period or that the comments contained in the report were in error or contrary to the provisions of the governing instruction. In the absence of evidence to the contrary, 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 Docket Number BC-2011-03790 in Executive Session on 21 June 2012, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-03790 was considered: Exhibit A. DD Form 149, dated 19 Sep 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIMC, dated 29 Feb 12. Exhibit D. Letter, AFPC/DPSID, dated 20 Mar 12. Exhibit E. Letter, AFPC/JA, dated 27 Mar 12. Exhibit F. Letter, SAF/MRBR, dated 30 Mar 12.