RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05168 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His selection for promotion to the grade of Captain be reinstated with an effective date of rank of 30 May 2011. 2. The Air Force (AF) Form 4364, Record of Promotion Resolution, be corrected to remove attachment six. ________________________________________________________________ APPLICANT CONTENDS THAT: In a combined five-page brief of counsel the following contentions are made: a. His original promotion effective date was withheld pending an investigation and subsequent court-martial where he was found not guilty. In accordance with (lAW) federal law and Air Force regulations, his effective date of promotion should be reinstated and his benefits restored. Additionally, since he was not afforded the opportunity for review or response to the memorandum at attachment 6, of the Air Force Form 4364, it should be removed. b. He was selected for promotion to the grade of Captain by the calendar year (CY) CY10B promotion board and notified of the promotion delay on 24 May 2011, because he was the subject of an ongoing command investigation. His court-martial concluded on l3 Oct 20ll, with a verdict of “not guilty.” Title 10 U.S.C. Section 624(e) states “if the officer is acquitted of the charges brought against him, the officer shall be retained on the promotion list and shall have the same date of rank, the same effective date for pay and allowances to the grade to which promoted, as if no delay had intervened.” He respectfully requests his original promotion date and associated benefits be reinstated to 30 May 20ll. c. He signed the AF Form 4364 with 5 typed references in block 13. He was given the opportunity to review and make comments if he desired. Upon the return of the AF Form 4364 for his counter signature and to acknowledge receipt, approximately 3 months later, a hand-written reference was listed in block 13 as additional information for review. He was not afforded an opportunity to review the additional reference and believes that it is a violation of AFI 36-2501, Officer Promotions and Selective Continuation, paragraph 5.7.3. He does not believe the additional reference is information originating solely from his personnel record and therefore, must be derogatory in nature. He respectfully request the additional reference be removed from the record. In support of his request, the applicant provides his counsel’s brief with attachments. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: 1. The applicant is currently serving in the Regular Air Force in the grade of First Lieutenant, O-2. 2. According to the record of promotion propriety action, on 10 August 2010, the applicant assaulted a fellow officer and a female civilian, wrongfully appropriated the female civilian's car, and drove the car while intoxicated, crashed the car and fled the scene of the crash. On 24 May 2011, the applicant’s commander (9 BS/CC) initiated a promotion propriety action to delay the applicant’s promotion while he awaited trial before a general court-martial. On 6 October 2011, SAF/MRB extended the delay of the applicant's promotion until 30 November 2011. On 13 October 2011, a general court-martial found the applicant “not guilty only by reason of lack of mental responsibility” for his actions on 10 August 2010. 3. On 21 November 2011, the applicant’s commander initiated a termination of his promotion delay and recommended that he be promoted on his original projected date of promotion of 30 May 2011. On 23 November 2011, the applicant acknowledged his commander's recommendation and waived his right to submit matters on his own behalf. On 14 December 2011, the applicant’s wing commander (7 BW/CC) recommended he be removed from the promotion list. On 20 Jan 2012, the 7 BW/CC provided written justification for his recommendation. The 7 BW/CC memorandum was listed as Attachment 6 in Block 13 of the AF Form 4364. In his recommendation to have the applicant removed from the promotion list, the 7 BW/CC stated that although the applicant cannot be held criminally liable for the charges he faced at his general court-martial, he should be “held accountable for the outrageously poor judgment he displayed immediately prior to the onset of his delirium” on 10 August 2010. ________________________________________________________________ AIR FORCE EVALUATION: 1. AFPC/DPSOO recommends denial. DPSOO states per AF/JAA instructions, Active Duty Officer Promotion Propriety Actions, May 2012, if the reviewing commander's recommendation differs from the initiating commander's recommendation, the reviewing commander should provide a written memorandum to explain his or her recommendation. The content of this memorandum should be limited to the commander's justification for his or her recommendation and deliberative process. It is not necessary to serve this memorandum to the officer unless the memorandum addresses new derogatory information. The memorandum did not contain any new derogatory information but the justification that the applicant's conduct fell far short of the “exemplary conduct” which is required for officer promotions under AFI 36- 2501 and 10 U.S.C., Section 8583. The Secretary of the Air Force (SECAF) approved the removal action on 29 Feb 12. 2. AFI 36-2501 specifies that commanders question a promotion when the preponderance of evidence shows the officer has not met the requirement for exemplary conduct set forth in Title 10, U.S.C., Section 8583 or is not mentally, physically, morally, or professionally qualified to perform the duties of the higher grade. Air Force policy states that formal rules of evidence do not apply to a promotion propriety action. All actions were reviewed by Air Force legal offices and were found to be legally sufficient to warrant the action taken. The complete AFPC/DPSOO evaluation, with attachment, is at Exhibit C. 1. AFPC/JA recommends denial. JA states that after a complete review of the case file, they concur that the decision to remove the applicant from the promotion list because he failed to adhere to the requirement for exemplary conduct was fully supported by the evidence of record and was legally sufficient. 2. The applicant claims that removing him from the promotion list following his acquittal at court-martial violates federal law, citing Section 624(e) of the United States Code (“if the officer is acquitted of the charges brought against him...the officer shall be retained on promotion list”). While 10 U.S.C., Section 624(d)(l)(E)·- not 10 U.S.C., Section 624(e) as cited by applicant's counsel- provides that an officer acquitted of charges should ordinarily be retained on the promotion list, the provision contains a caveat under Section 624(d)(2) that an officer's promotion can nevertheless be delayed in any case where there is cause to believe the officer has not met the requirement for exemplary conduct set forth in 10 U.S.C., Section 8583. This provides a basis as well to remove an officer from the promotion list where a preponderance of the evidence of record establishes failure to adhere to the exemplary conduct standard (See AFI 36-2501, paragraph 5.5.), and it was the basis relied upon by the 7 BW/CC in his recommendation for removal. 3. The applicant challenges the removal stating that the only basis for the removal relates to the circumstances of his court- martial, at which he was found not guilty. He argues that had there been any other basis to remove him from the promotion list, “Air Force regulations require that the removal be done immediately, not delayed to await a resolution of the trial,” citing AFI 36-2501, paragraph 5.1.1. The applicant is incorrect that this provision requires that a removal be initiated even where the evidence would seemingly support immediate removal action. It is a recommendation, not a requirement. Moreover, where facts may be somewhat in dispute, and the nature or degree of the officer's mental responsibility might be at issue, it is not unreasonable to delay the outcome to fully develop all the facts in the case. That is a commander's call, and in their opinion, the commander's decision here to delay was permissible under the Instruction. 4. The applicant also challenges the removal on the ground that he was not given an opportunity to review and respond to the 7 BW/CC memorandum dated 20 January 2012, listed as Attachment 6 in Block 13 of the AF Form 4364. He bases this contention on AFI 36-2501, paragraph 5.7.3, wherein the reviewing commander is required to give an officer an opportunity to comment on all derogatory information added after the officer first reviews and acknowledges the initial recommendation, unless the information originated solely from the officer's personnel record. In response, they note: a. the AF Form 4364 notifies the officer that regardless of the initiating commander's recommendation, the promotion propriety action “could result in extension of the promotion delay, promotion with a date of rank adjustment, promotion upon the original effective date, or removal from the promotion list.” b. contrary to the applicant's speculation, SAF/GCM and AF/JAA gave 7 BW/CC an opportunity to provide justification for his recommendation (the 20 January 2012, memorandum) simply because it differed from that of the initiating commander. 5. All of the facts recited in the commander's memorandum are found in attachments to the AF Form 4364, to include the Record of Trial, the Findings of the Court, and the Military Judge's Memorandum to the Convening Authority. The applicant acknowledged receipt of these attachments when he signed the AF Form 4364. Consequently, no “new derogatory information” as contemplated by AFI 36-2501, was added to the file after the applicant first reviewed and acknowledged the initial recommendation. Accordingly, 7 BW/CC was not obligated by regulation to provide his memorandum to the applicant before the file was forwarded to the Secretary, and there is no requirement to remove Attachment 6 from the record. For the reasons explained above, they can discern no error prejudicial to the substantial rights of the applicant. The complete AFPC/JA evaluation, with attachment, is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 1. In his response, the applicant states that he believes that AFPC/JA and DPSOO advisories are incorrect in their recommendation to disapprove his request to have his promotion date of rank reset to 30 May 2011, and to have the 7 BW/CC memorandum removed from his record. He further states the argument for recommending denial of his request leaves out certain pertinent information that displays the vindictive nature of the actions taken against him by the former 7 BW/CC, and the overall administrative mishandling of the case. 2. The applicant expands on his contention that he was not afforded a chance to review and comment on the 7 BW/CC memorandum listed as attachment 6 to the AF Form 4364. He asserts that AFI 36-2501, paragraph 5.7.3.1 requires that the reviewing commander give “the officer an opportunity to comment on all derogatory information added after the officer first reviews and acknowledges the initial recommendation, unless the information originated solely from the officer's personnel record.” AFPC/JA did not rebut the fact that there was derogatory information in the 7 BW/CC memorandum, but simply that it was not new information. 3. The applicant expresses that the decisions he made that night, prior to the onset of the substance induced intoxication delirium, were no different, better or worse, than the decisions made by every member of his crew, all of whom were senior to him. The 7 BW/CC chose not to hold them “administratively accountable” for “outrageously poor judgment,” and in fact, none of the other members of the crew received so much as a Letter of Counseling. The decision to hold the junior member of the crew solely responsible, for the same judgment displayed by every member of the crew, cannot be viewed in any other way but a vindictive attack against an individual who was fully acquitted at a General Court-Martial. 4. The applicant adds that during the time his promotion was delayed via the original AF Form 4363, he was in a rating period spanning from April 2011 through April 2012. Regardless of the allegations that ultimately led to a court-martial, he was given a stratification as the #1 lieutenant in his flight and squadron, by both his flight commander and squadron commander. Most relevant, the 7 BW/CC, rated him as the #1 lieutenant out of 33 in the 7th Operations Group (OG). The 7 BW/CC somehow considered him unfit for promotion during the same timeframe that he rated him as the best lieutenant in the OG. The 7 BW/CC even stated that he was an “incredible leader in a top notch mobility shop.” There is a clear discrepancy when the 7 BW/CC states that he was, in his opinion, the top lieutenant in the OG yet clearly unfit for promotion. Based on the reasons outlined above, he believes that the AFPC advisors are incorrect in their recommendation to disapprove his request to have his promotion date of rank reset to 30 May 2011, and to have the 7 BW/CC memorandum removed from his record. The applicant’s complete response 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 error or injustice. After reviewing all of the evidence provided, to include his rebuttal comments, we do not find these assertions, in and by themselves, sufficiently persuasive to override the evidence of record or the rationale provided by the Air Force offices of primary responsibility. We are not persuaded by the evidence that the action taken by the wing commander was beyond his scope of authority, inappropriate, or arbitrary and capricious. Moreover, while the applicant’s counsel contends that he was not afforded a chance to review and comment on the wing commander’s memorandum listed as attachment six to the AF Form 4364, Record of Promotion Resolution, there was no evidence of “new derogatory information” added to the file after the applicant first reviewed and acknowledged the initial recommendation. Additionally, the AF Form 4364 notified the applicant that regardless of the initiating commander's recommendation, the promotion propriety action could result in, among other outcomes, “removal from the promotion list.” Therefore we do not find a basis to recommend correcting the AF Form 4364 by removing attachment six. In view of this determination, there exists no basis upon which to recommend favorable consideration on the remainder of the applicant’s requests. 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 this application in Executive Session on 22 August 2013, under the provisions of AFI 36-2603: , Chair , Member , Member The following documentary evidence was considered in AFBCMR Docket Number BC-2012-05168: Exhibit A. DD Form 149, dated 26 Oct 2012, w/atchs. Exhibit B. Letter, Applicant’s Master Personnel Record. Exhibit C. Letter, AFPC/DPSOO, dated 21 Dec 2012, w/atchs. Exhibit D. Letter, AFPC/JA, dated 16 Jan 2013, w/atchs. Exhibit E. Letter, SAF/MRBR, dated 7 Aug 2013. Exhibit F. Letter, Applicant, dated 3 Oct 2012, w/atchs. Chair AFBCMR 1500 West Perimeter Road, Suite 3700 Joint Base Andrews NAF Washington, MD 20762 Dear, Reference your application submitted under the provisions of AFI 36-2603 (Section 1552, 10 USC), AFBCMR Docket Number BC-2012-05168. After careful consideration of your application and military records, the Board determined that the evidence you presented did not demonstrate the existence of material error or injustice. Accordingly, the Board denied your application. You have the right to submit newly discovered relevant evidence for consideration by the Board. In the absence of such additional evidence, a further review of your application is not possible. BY DIRECTION OF THE CHAIR Chief Examiner Air Force Board for Correction of Military Records Attachment: Record of Board Proceedings 1 DEPARTMENT OF THE AIR FORCE WASHINGTON, DC Office of the Assistant Secretary