RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02391

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His Officer Performance Reports (OPRs) from 20 March 2001 through 30 April 2005 be declared void and removed from his record.  

APPLICANT CONTENDS THAT:

In May 2015, the AFBCMR recommended he be considered for a Special Selection Board (SSB) for promotion to the grade of lieutenant colonel (O-5); as a result, it is now necessary for him to correct the problems with his performance reports.  Although a fair amount of time has elapsed, he has contacted and received statements from his raters, senior raters and reviewers of the OPRs.

He was not rated or stratified fairly in comparison to his Field Grade Officer (FGO) peer group.  During this period, he was passed over for promotion to the grade of major (O-4) with a referral OPR, Unfavorable Information File (UIF) and Letter of Reprimand (LOR) in his record.  Even after the offending documents were removed and his grade retroactively corrected, his OPRs still reflected his jobs commensurate with that of an officer in the grade of captain (O-3) passed over for promotion to the grade of major.  This is unjust especially in light of the extra scrutiny the OPRs would face at an SSB.  

AFI 36-2406, Officer and Enlisted Evaluation Systems, instructs raters to stratify their ratings based on peer comparisons.  The substitute OPRs are unjust because he did not compete on a fair and equitable basis with his peers as required by Air Force policy.  The substituted FGO OPRs are not competitive because they lack FGO leadership and command jobs, jobs which were afforded to his peers but not to him during the same reporting periods.  His former rating chain supports the removal of the inaccurate and unjust OPRs and he provides their statements supporting his request.

His rating chain was compelled by a Secretary of the Air Force directive to make the OPR substitutions which do not conform to AFI requirements.  The “fake” FGO OPRs were based on his performance not as a major but as a passed over captain.  During the rating period, he was denied FGO leadership and command opportunities which affected his peer ranking and the breadth and depth of his experience.  He was also ineligible to compete for FGO awards or medals.

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

STATEMENT OF FACTS:

On 31 August 2010, the applicant retired in the grade of lieutenant colonel.  He was credited with 19 years, 11 months and 16 days of active duty service this period.   The applicant also served 6 years, 11 months and 24 days of prior active duty service.  

In BC-2002-03181, AFBCMR directive dated 4 November 2004 removed the applicant’s LOR dated 2 June 2000, his OPR for the period ending 13 June 2000 and the letter written by him to the President of the CY00B Major Central Selection Board (CSB).  The AFBCMR also directed his Promotion Recommendation Form (PRF) prepared for the CY01A Major CSB be amended to state “Definitely promote, ISS!” instead of “Promote with decisive breath!” and that he be considered for promotion to the grade of major by a SSB.  

In BC-2005-03010, AFBCMR directive dated 14 February 2006 amended the applicant’s OPRs for the periods ending 1 March 2002, 3 February 2003, 8 September 2003, 8 September 2004 and 30 April 2005 to reflect they were accomplished on AF Form 707A, Field Grade Officer Performance Report, instead of AF Form 707B, Company Grade Officer Performance Report.  

Per Special Order JB-005010 dated 1 October 2007, the applicant was promoted to the grade of Lt Col with Date of Rank (DOR) of 1 October 2007.  

The applicant’s records were administratively corrected on 15 December 2011 in BC-2011-03089 to reflect he transferred his Post-9/11 GI Bill benefit to his dependent son.  

On 6 June 2013, in BC-2012-00954, the AFBCMR corrected his record to show that the Promotion Recommendation Form (PRF), AF Form 709, prepared by the CY05A Lieutenant Colonel Central Selection Board (CSB) was accepted for file in his Officer Selection Brief (OSB) on 5 July 2005.  The AFBCMR further directed the corrected record, to include the PRF, be considered for promotion to the grade of lieutenant colonel by a SSB for the CY05A Lieutenant Colonel CSB.  The AFBCMR denied the applicant’s request that his Officer Selection Brief (OSB) be amended to include completion of Air Command and Staff College (ACSC) but noted he could write a letter to the SSB explaining why he had been unable to complete ACSC prior to the Board.  On 19 March 2015, the AFBCMR reconsidered the applicant’s request and amended his OSB prepared for SSB consideration for the CY05A Lieutenant Colonel CSB to reflect he completed ACSC by correspondence in 2005.  

On 24 June 2015, the applicant’s case was administratively closed and he was provided with a listing of prior AFBCMR petitions as requested.  In a letter dated 6 July 2015, the applicant requested his case be reactivated.  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

AIR FORCE EVALUATION:

AFPC/DPSID recommends denial.   There were no errors found in his record.  Based on a 10 to 13 year delayed request and insufficient evidence provided by the applicant and the presumed legitimacy of the original crafting of the evaluations, DPSID recommends the contested evaluations remain in his permanent record.  He has failed to provide substantiating documentation or evidence to prove his assertions that the contested evaluations were rendered incorrectly.  Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  DPSID determined the reports were accomplished in accordance with applicable Air Force policies and procedures at the time.

The applicant contends his OPRs for the periods of 20 March 2001 through 1 March 2002, 2 March 2002 through 3 February 2003, 4 February 2003 through 8 September 2003, 9 September 2003 through 8 September 2004 and 9 September 2004 through 30 April 2005 are erroneous and unjust because they do not accurately reflect his record of performance as a FGO.  The applicant has not provided enough evidence to prove the reports were written in error.  Based on the evidence provided, DPSID concludes the contested reports are accurate and in accordance with applicable Air Force policies and procedures at the time.  Further, in accordance with AFI 36-2406, statements from the rating chain should cite important facts or circumstances that were unknown when the evaluators signed the report.  Evaluators should detail the error or injustice, explain how and when it was discovered, provide the correct information, address the allegations and substantially challenge or disprove comments or ratings in the report.  The applicant has not provided enough evidence to prove the reports were written in error and has failed to provide substantiating documentation or evidence to prove his assertion the evaluations were rendered incorrectly.  Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  

The application was not submitted in a timely manner.  It is worthy to note the contested OPRs have been a matter of record for over 10 to 13 years.  He unreasonably and inexcusably delayed in asserting his claim.  He has waited 10 to 13 years to file this appeal and offered no justification for the extensive delay.  As a result of this very long delay, the Air Force no longer has documentation on file and memories have faded.  These factors seriously complicate any ability to determine the merits of his request.  

A complete copy of the AFPC/DPSID evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In a letter dated 6 July 2015, the applicant requested his case be reactivated.  The applicant also requested his personal statement provided in his initial request be amended as provided. 

His petition was submitted in a timely manner and necessarily follows other related appeals and corrective actions.  The subject OPRs violate AFI 36-2406.  The Air Force evaluation is wrong that he waited 10 to 13 years to file his petition and that he took no action on the claim previously.  Either they did not check or disclose the numerous appeals and corrective actions that make up his case.  The justification for filing the appeal is well documented in his case history.  DPSID reasonably knew and had access to these historical records but failed to consider or present these facts in the advisory.  

In 2013, the BCMR continued to hear matters in his case and ruled he should meet a SSB.  It was only at this point that the subject OPRs became unjust and their removal became necessary to ensure his record would be evaluated fairly at the SSB.  This appeal is timely because it was filed less than three years after the latest AFBCMR ruling he should meet a SSB.

The advisory fails to acknowledge evidentiary memorandums.  Ten separate OPR officials provided written memorandums in support of his petition which accounts for every rater, additional rater and reviewer of every OPR.  Not a single OPR official declined to support his application.  

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

FINDINGS AND CONCLUSIONS OF THE BOARD:

Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a careful review of the applicant's contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he is the victim of an error or injustice.  We also note the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603.  Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application.  Accordingly, we find the application untimely.

THE BOARD DETERMINES THAT:

The application was not timely filed and it would not be in the interest of justice to waive the untimeliness.  It is the decision of the Board, therefore, to reject the application as untimely.

The following members of the Board considered AFBCMR Docket Number BC-2015-02391 in Executive Session on 1 November 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 3 June 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSID, dated 6 May 2016.
	Exhibit D.  Letter, AFBCMR, dated 6 May 2016.
	Exhibit E.  Letter, Applicant, dated 20 May 2016.
	Exhibit F.  Letter, AFBCMR, dated 24 June 2016.
	Exhibit G.  Letter, Applicant, dated 6 July 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.