RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04242

						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His AF Form 707, Officer Performance Report (Lt thru Col), rendered for the period 2 May 2014 thru 2 July 2014, be declared void and removed from his permanent record.  

APPLICANT CONTENDS THAT:

He discovered in late August 2014, that after he filed an Air Combat Command Inspector General (ACC/IG) complaint against the USAFCENT Deputy Commander, he was reprised against, by having his regular annual OPR closed out on 1 May 2014.  His OPR was not due to close out until 25 June 2014 (or shortly before this date).  In order to issue him a referral OPR his OPR “thru date” was pushed back to 2 May 2014.  It appears in the Military Personnel Data system (MilPDS) that he was assigned under his supervisor’s replacement despite the fact that he was not in the USAFCENT area of responsibility (AOR) and was assigned and stationed at MacDill Air Force Base, Florida.  

The number of days of supervision under his supervisor’s replacement was approximately 22 days and not the 62 days as reflected on his contested officer performance report (OPR).  His supervisor’s replacement arrived in theater on or about 12 June 2014 and his supervisor departed approximately 16 June 2014.  He later departed the theater approximately 3 July 2014.  It is a false official statement to affirm that the days of supervision exceeded 62 days based on 2 May 2014 thru 3 July 2014, when his rater’s replacement was not in the United States Air Force Central Command’s (USAFCENT) theater and was assigned to a different base and Personal Accounting Symbol (PAS) code.  

Although the OPR indicates his rater’s replacement provided him with feedback on 16 June 2014, he never received counseling, feedback or any guidance from him during the period of 12 June 2014 through 3 July 2014.  Moreover, he was unaware that he was his rater.  

In accordance with (IAW) Air Force Instruction 36-2406, Officer and Enlisted Evaluation Systems, his supervisor’s replacement did not meet or exceed the required number of days for supervision needed to write an OPR as his rater; however, he was the rater on his contested report.  Furthermore, IAW AFI 36-2406, an OPR should be prepared when the determination of appropriateness of action under AFI 36-2907, Unfavorable Information File (UIF) Program, is needed, or the ratee’s performance or conduct is unsatisfactory or marginal, and a special evaluation is appropriate, and the supervision period is at least 60 calendar days.  

He was issued a Letter of Reprimand (LOR) on 1 July 2014, which was later amended and finalized on 3 July 2014.  As such, the LOR was outside the inclusive dates of his contested OPR and should invalidate its inclusion during the period of his contested OPR.  

He was notified of his referral OPR on 15 October 2015 and he appealed the decision before the Evaluation Reports Appeal Board (ERAB); however, his appeal was denied because there was confirmation in MilPDS that his supervisor’s replacement was his rater and that the chain of command confirmed that there were sufficient days of supervision.  Nevertheless, according to his rater’s and rater’s replacement colonel’s (O-6) Single Unit Retrieval Format (SURF), coupled with his contingency, exercise, deployment (CED) orders, it shows that USAFCENT senior leadership engaged in back dating his OPR in MilPDS.  It indicates his supervisor and his supervisor’s replacement were his raters concurrently during the period of May – June 2014, since his assigned rater was still in theater.  

He was never provided a “fair and unbiased” investigation.  The Investigative Officer withheld evidence that was presented by his lawyer, the convening authority changed infractions levied against him and did not provide him the due process of providing additional comments/documentation that is afforded to all airmen, and he was not treated with dignity and respect throughout the entire process.  

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

STATEMENT OF FACTS:

The applicant is currently serving in the Air Force in the grade of lieutenant colonel (O-5).

A Commander Directed Investigation (CDI) was conducted from 6 – 24 June 2014, due to allegations that the applicant was having an unprofessional relationship with an enlisted non-commissioned officer (NCO) and his conduct unbecoming an officer and gentlemen by wrongfully influencing her pending permanent change of station (PCS) assignment in order to maintain an unprofessional relationship with her.  

On 24 June 2014, an Investigating Officer substantiated that the applicant engaged in an unprofessional relationship with the aforementioned NCO.  However, it was not substantiated that he influenced her pending PCS assignment.  Moreover, during the course of the investigation, it was substantiated that the applicant made a false official statement, in violation of Article 107, Uniform Code of Military Justice (UCMJ), during his sworn testimony.  Specifically, the applicant indicated he and the NCO had only been off base together once during a group event; however, credible testimony proved his statement to be false, because it was determined they had gone on at least two additional off-base trips for dining and shopping.  

On 28 June 2014, The CDI was found to be legally sufficient.  

On 1 July 2014, the applicant received a LOR and an Unfavorable Information File (UIF) due to the CDI revealing that between on or about 21 July 2013 and on or about 5 June 2014, he intentionally engaged in unprofessional conduct with a female staff sergeant.  He acknowledged receipt of the action.  

On 2 July 2014, the applicant provided a statement in his own behalf.  

On 3 July 2014, the applicant’s LOR, dated 1 July 2014 was amended to state that he and the female staff sergeant were having an unprofessional relationship which created a perception of undue familiarity detracting from good order and discipline instead of they were having a having a sexual relationship.  The applicant acknowledged receipt of the final decision.  

On 9 July 2014, the applicant initiated an AF Form 102, Inspector General Personal and Fraud, Waste & Abuse Complaint Registration, filing an Inspector General (IG) complaint with the 4th Fighter Wing Inspector General (4th FW/IG).  Specifically, he requested an appeal of the Commander-Directed Investigation (CDI) and the removal of his issued LOR.  He alleged the Investigating Officer (IO) did not perform an objective and complete investigation by failing to include corroborating evidence in the CDI that proved he did not commit the alleged offense.  As a result of the erred CDI, his commanding officer issued him a LOR.  He was not afforded due process to rebut the amended LOR before it was placed in his record.  

On 10 July 2014, the applicant was notified by 4th FW/IG that his documentation was forwarded to the Air Combat Command IG (ACC/IG) because they would be the appropriate authority to address his complaint.  

On 30 August 2014, the applicant was notified by the United States Air Forces Central Command (USAFCENT) Inspector General (IG) that his IG complaint dated 9 July 2014, which was forwarded to ACC/IG, then SAF/IGS, and then returned to the AFCENT/IG office.  However, once the details of his allegations were analyzed it was found that his allegations were not appropriate for IG channels in accordance with Air Force Instruction (AFI) 90-301.  The applicant was informed that he could appeal his CDI to the appointing authority, AFCENT/CD, or to the next level of command, AFCENT/CC, and he could appeal his adverse administrative action to the AFBCMR, or submit an Article 138 to the AFCENT/CC or higher.  

On 3 September 2014, the applicant was notified by the United States Air Forces Central Command (USAFCENT) Inspector General (IG) that his allegations were not appropriate for IG channels.  Therefore, his complaints were dismissed and closed.  

On 15 October 2014, the applicant’s contested OPR was referred to him, due to a rating of not meeting standards as it relates to his performance factors, such as, leadership skills, judgment and decisions.  Specifically, due to his receipt of a LOR for engaging in an unprofessional relationship.  

On 16 October 2014, the applicant acknowledged receipt and provided a statement on his own behalf in regards to the referral report.  Specifically, he indicated the contested OPR relied on a LOR that was inappropriately administered, the evidence underlying the LOR was contradictory, lacked credibility, and failed to support the allegations.  He further indicated the OPR appeared to be in reprisal for an IG complaint that he made after the LOR was administered.  

On 7 March 2015, the applicant submitted an appeal to the ERAB, in regard to his contested OPR for discrepancies found under AFI 36-2406.  Specifically, he indicated his supervisor did not have sufficient supervision of 60 days or more, he was never provided guidance/counseling that his supervisor would serve as his new supervisor upon his arrival on 12 June 2014, and for not receiving official documented feedback or counseling.  

On 14 September 2015, the ERAB considered the applicant’s appeal; however, his requested relief was denied.  The Board was not convinced the original report was unjust or wrong.  

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.  Based on a total lack of corroborating evidence provided by the applicant and the presumed legitimacy of the original crafting of the OPR, the report should not be voided from the applicant’s permanent records.  The applicant has not provided compelling evidence to show that the report was unjust or inaccurate as written.  

The applicant received a referral OPR for the comment in Section IV that states “Received a Letter of Reprimand for engaging in an unprofessional relationship.”  The applicant provided no evidence whatsoever to show that the comment on his OPR was inaccurate or unjust; therefore, the inclusion of the comment on the OPR was appropriate and with the evaluator’s authority to document.  

The applicant stated the rater on his contested OPR only had 22 days of supervision; however, MilPDS was verified and the rater had the required number of days of supervision.  The rater’s supervision began 3 May 2014 which gave him 61 days of supervision. The applicant’s report was accomplished to document marginal performance.  

The applicant stated the date reflected on his report as the feedback date was falsified and that there was no feedback or any guidance provided.  If there were concerns about the lack of feedback, there were avenues to take to resolve the issue.  In this case, the applicant does not appear to have sought any remedies to obtain feedback.  The ratee shares the responsibility to ensure a feedback session occur.  However, the lack of counseling or feedback, by itself, is not sufficient to challenge the accuracy or validity of an evaluation.  Only member in the rating chain can confirm if counseling and/or feedback was actually provided; whether formal or informal, whether verbal or in writing.  In this case, the applicant has not provided any relevant documents to prove this allegation.  

The applicant has provided insufficient documentation or evidence to prove his assertions that the contested evaluation was rendered unfairly or unjustly, and has merely offered his opinion or events in the light that is most beneficial to him.  Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  Additionally, it is considered to represent the rating chain’s best judgement at the time it is rendered.  Furthermore, statements from all the evaluators during the contested period are conspicuously absent.  In order to effectively and successfully challenge the validity of an evaluation report, it is necessary to hear from all the members of the rating chain—not only for support, but also for clarification/explanation.  The applicant has failed to provide this necessary information/support from any rating official on the contested OPR.  Without benefit of these statements, and based on the evidence provided, it can only be concluded that the report is accurate as written.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provided the summarized testimony of his original rater.  Specifically, when asked during his CDI interview on 11 June 2014, did he have any mentoring discussions/session with the applicant, his response was nothing beyond the normal supervisor discussion.  Also, he provided a copy of his Standard Form 600, Chronological Record of Medical Care, dated 12 June 2014, which indicated a psychiatric evaluation comprehensive examination was conducted and his commander, who was also his original rater, was contacted to discuss potential options.  His commander/rater allowed him to have time off of work.  This documentation clearly shows that his original rater not only served as his supervisor, but continued to make command decision as his supervisor/rater until the date in which he departed on 16 June 2016.  

In addition, he provided a redacted copy of an Inspector General (IG) Report of Investigation, dated February 2016, which his additional rater was the subject of the investigation.  Specifically, it was substantiated that his additional rater wrongfully engaged in an unprofessional relationship and conduct seriously compromising his standing as an officer.  

He refutes the required number of days of supervision were fulfilled during the contested reporting period.  Several official documents including the provided summarized testimony shows his actual supervisor until the day of his departure.  Although, AFPC/DPSID indicate MilPDS verifies his supervisor, the actual MilPDS print-out was not provided to show the dates of supervision.  Also, if his performance and/or conduct was of marginal/unsatisfactory standing, he should have been issued a referral LOE to his gaining command to use for consideration in his next OPR.  

It is with absolute confidence that MilPDS/OPR was improperly back-dated after he left the AOR in an attempt to force the matter of having his additional rater issuing him a referral OPR after he filed an IG complaint against leadership.  

He unequivocally received no formal/informal feedback or counseling from the rater annotated on his contested report.  Furthermore, he was not made aware that he would serve as his rater or supervisor in any capacity, nor was this personnel action ever discussed.  He as well as his counsel was absolutely stunned and flabbergasted that there would be an attempt to backdate MilPDS/OPR and the assignment to a senior officer located in Florida for the purpose of initiating a referral OPR and subsequently eliminating the ability of the next command to consider any referred comments.  

In summary, he was never provided a fair and unbiased investigation after he filed an IG complaint.  A referral OPR was initiated which required a senior officer to make false official statements in affirming that he was his supervisor/rater, his OPR and MilPDS was backdated, and he was not provided any formal/informal feedback.  Furthermore, his additional rater was removed from position after an investigation revealed he had engaged in an unprofessional relationship and made false official statements to SAF/IG.  

His Air Force career has been undeniably decimated without impunity based on unfounded rumors and conjecture.  His contested OPR clearly violates several sections of AFI 36-2406 and is definitively unjustified and a regrettable consequence of reprisal against him for making a protected communication.  

He was awarded the Meritorious Service Medal with First Oak Leaf Cluster for outstanding achievement for the period 11 July 2013 to 2 July 2014.  

The applicant’s complete response, with attachments, is at Exhibit E 

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 that would warrant relief.  The applicant contends he was a victim of reprisal and requests his contested OPR be removed from his records.  The applicant contends that his OPR was not due to close out until 25 June 2014; however, in order to issue him a referral OPR his OPR “thru date” was pushed back to 2 May 2014.  Having reviewed the complete submission, to include his rebuttal response, while the applicant may believe this is the case, there is nothing in the evidence provided which would lead us to believe that the OPR in question was prepared with any motivation on the part of the evaluators other than to report their assessment of the applicant’s performance.  Other than his own assertions, we have seen no evidence by the applicant that the evaluators abused their discretionary authority, that the report is technically flawed, or that the evaluators comments are based on inappropriate considerations.  Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  We took note of the applicant’s submission of a redacted Report of Investigation in which his additional rater was the subject, however, the circumstances giving rise to his case are unique to that case and have no bearing relationship to one another.  We are not bound to recommend relief simply because the situation being reviewed appears similar to those of his additional rater.  Each case presented before this Board is considered on its own merits and the decision in the instant case stands alone.  In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.  

4.  The applicant alleges he has been the victim of reprisal.  As noted above, the applicant filed an IG complaint requesting the appeal of his CDI and the removal of his LOR.  He was notified that his allegations were not appropriate for IG channels and his complaints were dismissed and closed.  He contends that his contested OPR was the consequence of reprisal against him for making a protected communication.  As such, based on the authority granted to this board pursuant to Title 10 U.S.C. Section 1034, we reviewed the complete evidence of record to determine whether we conclude the applicant has been the victim of reprisal.  Based upon our own independent review, we do not conclude the applicant was the victim of reprisal.  We considered the principal argument set forth by the applicant that the referral OPR was not due to close out until 25 June 2014; however, in order to issue him a referral OPR his OPR “thru date” was pushed back to 2 May 2014 in retaliation for making a protected communication.  Again, we did not find evidence which would lead us to believe that the OPR in question was prepared with any motivation on the part of the evaluators other than to report their assessment of the applicant’s performance for the period under review.  Therefore, the Board does not find that the applicant has been the victim of reprisal pursuant to Title 10, U.S.C., Section 134.  

6.  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 the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2015-04242 in Executive Session on 6 October 2016 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-04242 was considered:

	Exhibit A.  DD Form 149, dated 2 October 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSID, dated 6 April 2016.  
	Exhibit D.  Letter, AFBCMR, dated 7 July 2016. 
	Exhibit E.  Various Documentation, Applicant, undated  
Exhibit F.  Commander Directed Report of Investigation – 
            WITHDRAWN.  
Exhibit G.  Report of Investigation – WITHDRAWN. 

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.