RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2012-02660

XXXXXXXXXXXXXXX				COUNSEL:  NONE

							HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered for the period 18 February 2007 through 13 March 2008, be removed from his records.

RESUME OF CASE:

On 28 March 2013, the Board considered and denied a similar application.  The applicant argued his rating chain was not properly established, his rater arbitrarily extended the closeout date of the contested OPR, which included comments that he was relieved of command due to loss of confidence and that an investigation revealed mistreatment of a subordinate, attempting to manipulate a Unit Climate Assessment (UCA) and disrespect of superiors.  The applicant further argued the “investigation” referred to in the OPR was a Command Directed Investigation (CDI) that was conducted after the date his OPR had already been illegally extended.  As evidence, the applicant provided a memorandum from Freedom of Information Action (FOIA) office staff, who indicated no records were found to validate the office of primary responsibility granted an approval to extend the OPR.  After careful consideration of the applicant’s submission, including the FOIA response and the available evidence of record, the Board determined the applicant did not provide substantial evidence that his rating chain was not properly established, that the comments contained in the OPR were in error, or that the report was prepared in a manner contrary to the provisions of the governing instruction.  The Board indicated that in the absence of such evidence and given the presumption of regularity in the operation of governmental affairs, the closeout date was appropriately extended in accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems.  For an accounting of the facts and circumstances surrounding the applicant’s request and the rationale of the earlier decision by the Board, see the Record of Proceedings at Exhibit F, with Exhibits A through E.

Via DD Forms 149, Application for Correction of Military Record, dated 30 September 2015 and 4 March 2016, the applicant submitted a request for reconsideration and makes the following major contentions:  (1) The contested OPR was extended without authority; (2) Comments pertaining to events that occurred after the close-out date were inappropriately included in the OPR; (3) The UCA was improperly and illegally conducted; and (4) The actions that led to the contested OPR resulted from a personality conflict between the rater and himself.  The substantial evidence he provides undermines the Air Force evaluation [AFPC/DPSID] and will demonstrate the contested OPR should be removed from his records.  He has brought forth evidence the Board has not previously seen including memoranda and an affidavit.  In the previous case, AFPC/DPSID stated he provided no evidence that the “investigation” mentioned in his OPR pertained to the CDI that took place after the close-out date.  However, the OPR should be removed from his record based on substantial evidence in the form of a memorandum from his additional rater, dated 29 May 2013, who states “To the best of my recollection, I believe the investigation referred to in the OPR covering [applicant’s] performance during the period 18 February 2007 to 13 March 2008 was a Commander Directed Investigation.”  AFPC/DPSID also recommended against voiding his OPR because of the lack of corroborating evidence and the administrative sufficiency pertaining to the Military Equal Opportunity [UCA] findings.  He questioned the legitimacy of the UCA and provides a sworn affidavit from his expert witness.  The expert witness opined the UCA was in direct violation of the Air Force governing instructions and recommended all references of the UCA be expunged from any and all formal actions made against him.  He also provides a memorandum from a former colleague who proclaimed the UCA contained unsubstantiated allegations and questioned its reliability.  His new evidence also includes a memorandum which is critical in impeaching the credibility of an individual who testified in both the UCA and CDI.
In addition to the new evidence, he also provides documents previously reviewed by the Board [memoranda, OPRs, and a Bronze Star Medal Citation] as well as evidence he now considers relevant that was available, but was not previously provided to the Board during the first case.  This evidence includes memoranda, affidavits, polygraph results, emails and other documents related to his appeal.  His attorney at the time believed any references to the impropriety of the UCA, credibility of key respondents and the personality conflict between himself and his rater would confuse the Board and should be omitted from his submission.  His counsel at the time felt the facts about the ambiguities with the rating chain and evidence that the OPR’s closeout date was improperly extended were in direct violation of all applicable Air Force Instructions and were in themselves compelling enough to offer relief.  He was not an attorney at the time and had to rely on his counsel’s legal judgement and skills.

Finally, he emphasizes that the Board is generally bound by precedent and cites AFBCMR Docket Number 98-00521 in which the Board concurred with the office of primary responsibility who concluded that reports are restricted from containing information that occurred outside the reporting period and recommended amending the OPR.

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

THE BOARD CONCLUDES THAT:

1.  In an earlier finding, the Board determined there was insufficient evidence to warrant removal of the OPR rendered for the period 18 February 2007 through 13 March 2008.  After again reviewing this application, and the additional evidence provided in support of his appeal, it remains the opinion of the Board that the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice.  The central point of the applicant’s argument is that the contested OPR should be void based on an erroneously extended OPR.  The investigation cited in the OPR referred to a CDI that took place after the closeout date of the contested report.  Consequently, the applicant believes the rater’s actions were arbitrary and capricious and were the result of a personality conflict between himself and his rater.  Based on a totality of the evidence presented, we are not persuaded the applicant has met his burden of establishing the existence of an error or an injustice in his records.  In this respect, we note the following:

The applicant claims there is no conclusive evidence his rater submitted a request to extend the closeout date of his OPR; therefore, it was illegally extended.  As evidence he provides a memorandum in response to his FOIA appeal indicating no records were found relating to a request to extend his OPR.  The applicant asserts that AFMAN 33-363, Management of Records, requires records be maintained in accordance with the manual.  However, while we agree with this contention, AFMAN 33-363 also specifies that record copies are destroyed when no longer needed. Therefore, it is reasonable to assume the office of primary responsibility [Air Force Colonel Matters Office] destroyed the extension request once the OPR was finalized and made a matter of record.  As such, we find the applicant has not provided substantial evidence which would establish that his report was improperly extended.  Therefore, given the presumption of regularity in the operation of governmental affairs, we conclude it is more likely than not the closeout date was appropriately extended in accordance with AFI 36-2406.

The applicant also maintains the contested OPR should be void because the word “investigation” referred to a CDI that occurred after the closeout date of the OPR.  The applicant presents as evidence a statement from his former additional rater who indicated that to the best of his recollection the investigation mentioned in the OPR was a CDI.  The applicant stresses this statement provides sufficient grounds for voiding the OPR.  However, we disagree and note that although the additional rater accomplished a final review of the contested evaluation in 2008, he does not address why he concurred with the rater’s assessment of the applicant’s duty performance or what information was available five years after the review that he did not have during the period in question.  Moreover, we are not convinced the “investigation” mentioned in the OPR referred to a CDI.  It appears the command action taken by the applicant’s leadership was in response to the alleged behaviors revealed during the UCA that occurred prior to the closeout date of the OPR.  As such, we are not persuaded the contested OPR is not a true and accurate assessment of the applicant’s performance during the specified time period or that the comments contained in the report are in error or contrary to the provisions of the governing instruction.

We also note the applicant’s contentions regarding the appropriateness and execution of the UCA, and while the applicant has submitted a number of statements indicating the UCA was improperly and unlawfully conducted, he has not met his burden to demonstrate he is the victim of an error or injustice.  Noticeably absent from the applicant’s submission is any independent formal corroboration of his assertions such as an Inspector General (IG) report.  We would remind the applicant that this Board is not an investigative body and often relies on investigative results from organizations such as the IG.  However, it is the applicant’s responsibility to pursue relief through these forums.

The applicant makes a variety of arguments intended to impugn the actions of his rater and the legitimacy of the UCA.  He also alleges his OPR was not properly extended and that the investigation referred to in the contested evaluation occurred after the closeout date of his OPR.  However, the majority of evidence the applicant provides consists of supporting statements from several former colleagues and subordinates attesting to his positive attributes as an officer and commander and their bewilderment at the behavior that precipitated the referral OPR.  We do not find opinions by individuals who were neither members of the applicant’s chain of command nor involved in the events that lead to the referral OPR sufficient to undermine the action taken by the applicant’s rating chain.  Even if we accepted the statements as true, they simply do not provide a basis for determining the rater’s actions toward the applicant were arbitrary and capricious and exceeded his discretionary authority.

The applicant also asserts, in essence, that relief is warranted based on precedent and believes AFBCMR Docket Number 98-00521 supports his request; however, we do not find this case is similar.  We note the rater’s administrative officer in the cited case admitted he prepared the contested OPR based on the applicant’s previous evaluation, causing two different OPRs to appear exactly alike because they contained verbatim comments.  The office or primary responsibility stated that reports are restricted from containing information that occurred outside the reporting period and recommended amending the OPR.  As such, the Board concurred with the office of primary responsibility and recommended replacing the comments previously used with new comments.  However, the applicant in the current case contends his OPR should be void because his rater arbitrarily extended the closeout date of his OPR without authority, and referred to an investigation he alleges occurred after the closeout date of the OPR.  Therefore, the two cases are easily distinguishable.  We do not find AFBCMR Docket Number 98-00521 to be binding precedent for this case.

The applicant suggests he was not previously afforded a fair and objective review because his attorney at the time believed any references to the impropriety of the UCA, credibility of key respondents, and the personality conflict between himself and his rater would confuse the Board and should be excluded.  Therefore, he did not provide all available evidence with his first submission.  However, after a comprehensive review of the applicant’s entire case file, to include his initial submission, the Air Force advisory opinion, counsel’s response to the opinion, and the additional evidence the applicant provided in support of his request for reconsideration, we do not find the evidence sufficiently persuasive to overrule the Board’s previous determination.  Therefore, we find no basis to recommend granting the relief sought in this application.

2.  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 issue(s) 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-2012-02660 in Executive Session on 22 August 2017, under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member

The following documentary evidence was considered:

Exhibit F.  Record of Proceedings, dated 22 April 2013, 
  w/Exhibits A-E.
Exhibit G.  DD Forms 149, dated 30 September 2015 and 4 March 
  2016, w/atchs.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.