RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04685 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Promotion Recommendation Form (PRF) for the Calendar Year 2011D (CY11D) Major Line of the Air Force (LAF) Central Selection Board (CSB) be removed from his records. 2. The term “DISQ-MED INDEF” be removed from his Air Force Officer Selection Brief (OSB). 3. His corrected record be considered for promotion to the grade of major (O-4) by a Special Selection Board (SSB) for the CY11D Major LAF CSB. 4. He receive back pay and allowances and he receive credit for time in grade for pay, promotion and retirement purposes from the date of his promotion to the present. ________________________________________________________________ APPLICANT CONTENDS THAT: In a 5-page supplemental statement, the applicant’s counsel presents the following major contentions: The combination of a PRF "Promote" recommendation coupled with narrative language reflecting “promote this officer,” rather than "definitely promote this officer" along with notification to the selection board that he was indefinitely medically disqualified from flight, ended any chance of promotion. While his failure to complete his master’s degree is a discriminator, it pales in comparison to the aforementioned issues. During 2011, he was recovering from back surgery and had an iatrogenic dependency to pain killers. The above leaves little doubt that during 2011 he was medically impaired by his back and prescribed medications. The PRF is grounded solely on his medical condition. It could not have been based on his officer performance reports. As such it is not performance based. In support of his request, the applicant provides a 5-page supplemental statement, and various other documents associated with his request. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIDEP recommends denial of the applicant’s request to correct his PRF. DPSIDEP states that on 27 Jul 2012 and 1 Aug 2012, he initially filed an appeal through the Evaluation Report Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports. The ERAB considered the applicant's appeal; however, it was returned without action due to lack of supporting documentation. The applicant believes the recommendation of "Promote" coupled with the language stating "promote this officer" rather than “definitely promote this officer” ended his chance of promotion. Moreover, the applicant states the PRF is not performance based; however, he provides no evidence to demonstrate exactly how the report written by his evaluators did not accurately reflect his performance during the contested period. He claims the PRF is based solely on his medical condition. He provides an abundance of medical documentation; however, he has failed to substantiate how it relates to the PRF as written. There is no evidence that the medical issue the applicant was experiencing was directly or indirectly related to the final product of the PRF. Furthermore, the PRF did not comment on any of the medical issues the applicant was going through as this is strictly prohibited in accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems. Although the applicant may feel the PRF attributed to his non-selection for promotion and he was placed in the bottom 20 percent of eligibles, the fact is that 53 percent of eligibles were awarded a “promote” recommendation and in fact were selected to the next higher grade. A PRF is a direct communication from the senior rater to the CSB on an officer’s future promotion potential. However, this is just a recommendation from the senior rater and the CSB had available the applicants entire selection record for review. The PRF is considered to represent the senior rater's best judgment at the time it is completed, based on all known or provided performance information at the time. DPSDIEP contends that once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual's record and the burden of proof is on the applicant. The applicant has not substantiated that the contested PRF was not rendered in good faith by the senior rater based on knowledge available at the time and has not proven that removal of the contested PRF, for the reasons provided, is warranted or justified. The complete DPSIDEP evaluation is at Exhibit C. AFPC/DPSOO recommends denial of the applicant’s request for SSB consideration. DPSOO states that based on DPSIDEP’s recommendation to deny correcting the PRF, they recommend his request for SSB consideration be denied. The complete DPSOO evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The advisory opinions fail to recognize a fundamental ingredient of proof in any legal proceeding; namely, circumstantial evidence. The absence of “definitely promote” language in the text of the PRF can only be attributed to the applicant’s compromised medical condition. Coupling the lukewarm PRF with the highly prejudicial "DISQ-MED INDEF" guarantees nonselection. That 53 percent of eligibles were awarded a "Promote" and were selected to the next higher grade is a non sequitur because it does not take into account the narrative portion of the PRF where the term "definitely promote" is frequently used to bolster a "Promote." Counsel’s complete submission is at 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. After thoroughly reviewing the evidence of record and the applicant’s complete submission, we find no evidence which would persuade us that his records should be corrected as requested. While Counsel’s assertions in response to the Air Force evaluations are noted, he has not provided sufficient evidence that would warrant an exception to policy. We believe removing the PRF and granting a SSB without sufficient evidence would be unfair to others similarly situated and establish a basis for circumventing the procedures in place. Therefore, in the absence of sufficient evidence to the contrary, we conclude the applicant has failed to sustain his burden of establishing that he has suffered either an error or an 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 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 this application in Executive Session on 16 Jul 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2012-04685: Exhibit A. DD Form 149, dated 7 Aug 2012, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPSIDEP dated 3 Mar 2013. Exhibit D. Letter, AFPC/DPSOO, dated 3 Apr 2013. Exhibit E. Letter, SAF/MRBR, dated 22 Apr 2013. Exhibit F. Letter, Counsel, dated 20 May 2013.