RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2015-04012 COUNSEL: NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
She be promoted to the grade of Major (Maj) (O-4), with a Date of Rank (DOR) of 7 Sep 13.

APPLICANT CONTENDS THAT:
In April 2013, she was submitted for promotion to the grade of Maj by her approving official. Subsequently, the request was sent to the state of Florida with an approved DOR of 7 Sep 13, in accordance with (IAW) AFI 36-2406, Officer and Enlisted Evaluation Systems.

On 1 Nov 13, her approved promotion was denied by the Air National Guard Readiness Center (ANGRC) due to a 2010 referral Officer Performance Report (OPR). The Evaluations Reports and Appeals Board (ERAB) subsequently ruled the OPR void and gapped with an AF Form 77, Letter of Evaluation (LOE).

Her 2010 OPR no longer exists, has been gapped, and therefore, the reason to deny her promotion IAW ANGI 36-2504, Federal Recognition of Promotion in the ANG and as a Reserve of the Air Force below the Grade of General Officer to Maj is in error and unjustified.

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

STATEMENT OF FACTS:
The applicant was appointed a second lieutenant in the Reserve of the Air Force on 24 Apr 05.

According to NG-J2 memo dated 21 Apr 13, provided by the applicant, she was recommended for promotion to Maj and examination by a Federal Recognition Examining Board.

According to an ANG Inspector General, Complaints Resolution Division (ANG/IGQ) memo dated 1 May 15, provided by the applicant, the ANG/IGQ conducted a complaint analysis into three allegations:

FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974

ALLEGATION #1: On or about 1 Nov 13, the applicant was disapproved for promotion to Maj in violation of established procedures. CONCLUSION: NOT SUBSTANTIATED.

ALLEGATION #2: On or about 27 Apr 14, an unidentified person provided information regarding the applicant’s 27 Jan 10 referral OPR to the Tennessee ANG in violation of DoD Regulation 5400.7, Air Force Supplement, DoD Freedom of Information Act Program and AFI 33-332, Privacy Act Program.  CONCLUSION:  NOT SUBSTANTIATED.

ALLEGATION #3: On or about 2 Feb 10, the applicant’s 27 Jan 10, referral OPR was submitted to the Air Reserve Personnel Center (ARPC) without the required additional rater and reviewers signatures in violation of AFI 36-2406.  CONCLUSION: REFERRED.

ANG/IGQ concluded that in regards to allegations 1 and 2 there was insufficient justification to proceed with an investigation under AFI 90-301, IG Complaints Resolution. Specifically, in allegation
1 the responsible management official did not violate any established standards and the applicant’s promotion package was not held to a different standard. In regards to allegation 2, no subject was identified so the allegation could not be properly framed. As a result, both allegations 1 and 2 were dismissed. With respect to allegation 3, the applicant was referred to the ERAB for remedy. The board ruled an AF Form 77, gap report would replace the 2010 OPR. Further, the applicant was advised to contact the AFBCMR to address further remedy for her promotion disapproval since her OPR was removed.

According to Special Order ACD-03074 dated 11 Jul 16, on 28 Jul 16, the applicant was relieved from active duty. On 29 Jul 16, she was permanently disability retired in the grade of Major, with a compensable percentage for physical disability of 100 percent. She was credited with 17 years, 11 months and 4 days active service for retirement.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C thru F.

AIR FORCE EVALUATION:
NGB/A1PO recommends denial of the applicant’s request to change her DOR to 7 Sep 13. If the applicant had been promoted, her DOR would have been 8 Aug 13, the day the board convened. She was never submitted for Federal Recognition, therefore the 7 Sep
13 date is null and void.
In September 2013, the applicant was submitted by the State of Florida for promotion to the grade of Maj. However, after a review of her promotion package and records, she was deemed  ineligible

for promotion by NGB/A1, and was not submitted for Federal Recognition to the Secretary of Defense (SECDEF). Her NGB 89-1, Processing of a Federal Recognition Board, dated 16 Aug 13, page 1, Conduct of the Board, was marked “the applicant recommended for federal recognition who had no adverse information furnished to the board, is in the opinion of the board member majority fully qualified to meet the needs of the Air Force and the Air National Guard (ANG), and meets the requirements of exemplary conduct set forth in Title 10 United States Code, §8553.” However, page 2, Qualifications Section, was marked “Not Qualified” for “Applicant’s moral qualifications are satisfactory. Exhibits loyalty, discipline, dedication, integrity, honesty, and officership. Adheres to Air Force standards. No Letters of Counseling or reprimand.  No referral performance reports.”

When the board convened, the applicant’s records contained a referral OPR dated 27 Jan 10, that indicated she “received an Article 15 for having an unprofessional relationship of inappropriate familiarity with her commander.” The adverse action was not removed before the Position Vacancy (PV) board; therefore, the board found the applicant not qualified in certain areas, and she was not submitted for promotion to the SECDEF by NGB. The NGB 89-1 could be deemed an invalid board for the conflicting boxes marked.

The applicant appealed her referral OPR to the Evaluations, Reports and Appeals Board (ERAB) and the contested OPR was removed from her records and replaced with an AF Form 77. Subsequently, the applicant met the A0415A mandatory board and was promoted to the grade of Maj, with a DOR OF 21 Apr 16.

The complete NGB/A1PO evaluation, with attachments, is at Exhibit C.

AF/JAA initially recommended the case be forwarded to ARPC/DP for action IAW Title 10 United States Code (10 USC) §14502 and AFI 36- 2504, Officer Promotion, Continuation and Selective Early Removal in the Reserve of the Air Force, paragraph 9.2. A complete copy of the AF/JAA evaluation is at Exhibit D.

Upon referral as recommended by AF/JAA, ARPC/PB subsequently recommended the case be returned to AF/JAA since ARPC/PB has no authority to grant a Special Selection Board (SSB) in this case. A complete copy of the ARPC/PB evaluation is at Exhibit E.

Upon return of the case from ARPC/PB, AF/JAA recommended approval indicating the applicant’s petition should be granted insofar as it extends to updating her DOR to 8 Aug 13, the date NGB/A1 has indicated the applicant would have possessed if the erroneous or improper referral OPR had not been in her records. However, if the Board determines that there was no error or injustice, then no further action is necessary.

The applicant’s referral OPR on which both the Federal Recognition Examination Board and NGB/A1 relied in their findings, has been invalidated by subsequent review and replaced with an AF Form 77. The removal of the referral OPR indicates its improper or erroneous character, and the inclusion of such an improper or erroneous document in an officer’s promotion record (both for Federal Recognition examination and subsequent NGB evaluation) would appear to constitute an error or injustice appropriate for remediation by the Board.

The state Federal Recognition Examination Board’s Form NGB 89-1, Processing of a Federal Recognition Board contained some ambiguities, such as the page 1 indication that the applicant “had no” adverse information furnished to the board.   However,  page
2 reflected the applicant was “not qualified” in reference to her moral qualification, which include the sub-condition, “No referral performance reports.” However, AF/JAA does not believe these errors are fatal to the final determination of the board. The final finding of the board was that the applicant is, “qualified for the promotion sought,” and recommended for Federal Recognition. There is no bar to the legal sufficiency of the findings as described.

The applicant’s PV promotion was denied on the basis of action by NGB/A1. Since this action, even if proper, was based on consideration of an improper or erroneous OPR, it is that action which the Board should correct. The method of correction under this interpretation would be to accept the findings of the original Federal Recognition Examination Board that the applicant was qualified for promotion, and order the applicant’s DOR updated to reflect the date it would have been if she had not been declined for further processing by NGB/A1.

A complete copy of the second AF/JAA evaluation, with attachment, is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the applicant on 27 Feb 17, for review and comment within 30 days (Exhibit G). As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:
1.	The applicant has exhausted all remedies provided by existing law or regulations.
2.	The application was timely filed.
3.	Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.	After a thorough review
1.	

of the evidence of record and the applicant’s complete submission, this Board believes the applicant is the victim of an error. While the Board notes the comments of NGB/A1PO indicating that relief should be denied because the applicant was deemed ineligible and never submitted for Federal Recognition to the Secretary of Defense, a preponderance of the evidence substantiates that corrective action is warranted.  The Board notes the following:

1.	Memorandum from NG-J2 memo dated 21 Apr 13, found the applicant qualified for promotion to the grade of major and examination by a Federal Recognition Examining Board.

2.	Referral AF Form 707, Officer Performance Report (OPR) rendered for the period 27 Jan 10, was invalidated and replaced with an AF Form 77, Letter of Evaluation.

3.	NGB-89-1, Processing of a Federal Recognition Board, was erroneously marked “not qualified” in reference to her moral qualifications, which included the sub-condition, “no referral performance reports.”

Although the applicant requests her DOR to the grade of major be changed to 7 Sep 13, had the erroneous or improper referral OPR not been in her records, the applicant’s DOR would have been 8 Aug 13, the day the board convened. Therefore, we recommend the applicant’s records be corrected to the extent indicated below.

THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that a date of rank to the grade of Major of 8 August 2013 rather than 7 September 2013.

The following members of the Board considered AFBCMR Docket Number BC-2015-04012 in Executive Session on 22 Mar 18, under the provisions of AFI 36-2603:

Chair

Member
The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-04012 was considered:

Exhibit A.	DD Form 149, dated 15 Sep 15, w/atchs. Exhibit B.	Excerpts from Master Personnel Records. Exhibit C.	Memorandum, NGB/A1PO, undated, w/atchs. Exhibit D.	Memorandum, AF/JAA, dated 18 Nov 16, w/atch. Exhibit E.	Memorandum, ARPC/PB, dated 6 Dec 16.
Exhibit F.	Memorandum, AF/JAA, dated 18 Jan 17, w/atch.

Exhibit G.	Letter, AFBCMR, dated 27 Feb 17.
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.