RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-00214

						COUNSEL:  

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

1.  His Officer Performance Report (OPR) for the period 11 May 13 thru 17 Oct 13, be removed from his official military personnel file (OMPF).

2.  His removal from the Senior Development Education (SDE) designation list be rescinded.

3.  The AF/A1 memo, dated 1 Jul 14, removing him from the SDE list be removed from his OMPF.

4.  He be designated for SDE in-residence attendance.

5.  He receive a decoration appropriate for his rank for his period of deployment, 3 Jun 13 until 22 Oct 13.

6.  All mentions of his removal from command of the 379th Expeditionary Aircraft Maintenance Squadron (EAMXS) be removed from his OMPF.

7.  His corrected record meet Special Selection Boards (SSB) for all impacted selection boards.  

APPLICANT CONTENDS THAT:

During the matter in question, his performance did not warrant his removal from command.  Under his command, his squadron had a mission effectiveness rate of 97 percent, and he led his squadron to the highest quality assurance rating in more than 3 years.  The objective data demonstrates that there was no Air Tasking Order (ATO) crisis or negative maintenance trend during his tenure as the 379 EAMX/CC.  The truth of the matter is that the 379 EAMXG/CC (maintenance group commander) had a personality conflict with him and that conflict impacted the 379 EAMXG/CC’s decision to fire him.  As he was successful commanding his squadron, his removal from command, receipt of a referral OPR, and removal from the SDE designation list was improper and unjust.  His career should not be forever marred because of a personality conflict.  

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

STATEMENT OF FACTS:

During the matter in question, the applicant was serving in the Regular Air Force in the grade of lieutenant colonel (O-5).  

On 6 Jun 13, the applicant took command of the 379 EAMX Squadron, at Al Udeid AB, Qatar.

On 6 Aug 13, the 379 EMXG/CC issued a Memorandum for Record (MFR) regarding a confrontation with the applicant during a MXG staff meeting.  That same day the CC and the applicant reviewed his initial feedback form and discussed how to build a team built on trust, and part of trust was being able to disagree.  However, the CC felt the applicant’s confrontational comments in the staff meeting went over the line of being disrespectful.  

On 9 Oct 13, the 379 EMXG/CC administered the applicant a Letter of Counseling (LOC), for “Failure to Follow an Order.”  He was directed to contact the group commander whenever his unit was going to miss an Air Tasking Order (ATO) sortie.  The applicant failed to contact the group commander regarding failure to successfully launch a KC-135 ATO sortie on 8 Oct 13.

On 17 Oct 13, the applicant was removed from command as the 379 EAMXS/CC.  The group commander presented the applicant with a Relieved of Command for Cause letter that stated his performance as commander has not met the expected level of an officer commensurate with this duty.

On 18 Oct 13, the applicant received a referral OPR, indicating, “Does Not Meet Standards,” concluding with the line, "Removed from cmd; failed to ID/correct neg mx trends...led to ATO crises; required repeated Gp/CC intervention."  

On 15 Nov 13, the applicant submitted rebuttal comments to the 18 Oct 13 referral OPR.  Included with the rebuttal were supportive letters attesting to the quality of his performance, as well as a background data sheet enumerating the improved metrics and his success during his tenure as squadron commander.  

On 22 Nov 13, after considering the applicant’s rebuttal to the referral OPR, the applicant’s senior rater, the 379 AEW/CC upheld the referral OPR. 

On 11 Feb 14, the 379 AEW/IG advised the 379 AEW/CC that the applicant had filed a complaint on 27 Oct 13.  It was forwarded through USAFCENT IG up through SAF/IGS on 13 Jan 14, but it was returned for local action on 5 Feb 14. 

On 24 Feb 14, a Commander Directed Investigation (CDI) was commissioned to conduct an investigation into all aspects of the facts and circumstances concerning improper government vehicle use, incorrect administrative procedures, and a hostile work environment with the 379 EMXG. 

In Mar 14, the CDI findings pertaining to the allegations of the applicant against the 379 EMXG/CC regarding the matter in question were as follows: 

	a. The preponderance of the evidence shows between 7 Jun 13 and 22 Nov 13, the 379 EMXG/CC did not engage in leadership that was inconsistent with ethical standards and standards expected of Air Force leaders.  (Allegation NOT SUBSTANTIATED) 

	b. The preponderance of the evidence indicates on or about 9 Oct 13, the 379 EMXG/CC did not follow appropriate administrative procedures when he presented a LOC to the applicant, in that he failed to allow due process and an opportunity to respond. (Allegation SUBSTANTIATED)

	c. The preponderance of the evidence shows between 7 Jun 13 and 22 Nov 13, the 379 EMXG/CD did not engage in leadership that was inconsistent with ethical standards and standards expected of Air Force leaders.  (Allegation NOT SUBSTANTIATED)

On 14 Apr 14, the applicant officially requested the 379 EMXG/CC and in-turn the 379 AEW/CC redress the administrative actions (LOC, removal from command, referral OPR, removal from SDE select status) taken against him.

On 16 Apr 14, the 379 EMXG/CC rescinded the 9 Oct 13, LOC, because it was not administered in accordance with (IAW) the requirements of AFI 36-2907, Unfavorable Information File (UIF) Program.

On 21 Apr 14, the 379 EMXG/CCC (Command Chief Master Sergeant) provided a MFR regarding the applicant’s failed leadership despite efforts by the CC and CCC to help him succeed, opining that the applicant blamed others, did not lead-turn issues or anticipate problems.  

On 22 Apr 14, the Associate Director of Logistics, Air Combat Command (ACC), and the 379 EMXG/WWM (Wing Weapons Manager), provided MFRs supportive in nature of the 379 EMXG/CC’s decision to remove the applicant from squadron command.  

On 30 Apr 14, the 379 EMXG/CC in a memorandum to the applicant, advised him that except for his request to rescind the 9 Oct 13 LOC; he was denying the applicant’s requests for redress.  

On 5 May 14, the 379 AEW/CC in a memorandum to the applicant, concurred with the actions of the 379 EMXG/CC in respect to rescinding the LOC and denial of the remaining redress requests. 

On 1 Jul 14, the applicant received a memorandum from the AF/A1, advising him that he was removing the applicant from the SDE designation list for cause.  Specifically, his recent removal from squadron command is inconsistent with the high standards expected of an Air Force officer.  

The documentation submitted by the applicant contains a 15 Aug 14 memorandum for AFCENT/CC, subject: Request for Redress Pursuant to Article 138, UCMJ.  As of this date, no status of a response to his memorandum has been received by this office.  

In Oct 14, the applicant received an email from the Evaluation Reports Appeal Board (ERAB), advising him they were returning his application without action based on the lack of supporting evidence that proves any of his allegations/accusations.  

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), and AFPC/JA, which are attached at Exhibits C, D, E, F, G, and H.    

AIR FORCE EVALUATION:

AFPC/DP2SPE recommends denial indicating there is no evidence of an error or an injustice warranting voiding the contested report. With the evidence provided, it was shown that the applicant was not performing his duties, which resulted in his removal from command.  In accordance with (IAW) AFI 36-2406, Officer and Enlisted Evaluation Systems, “An evaluation is necessary to document unsatisfactory or marginal duty performance or conduct.” Only the evaluators know how much an incident influenced the report.  The applicant’s rating chain appropriately chose to comment and document on the underlying wrongdoing, which caused the report to be referred to the applicant for comments and consideration to the next evaluator.  Moreover, a final review of the contested evaluation was accomplished by the additional rater and a subsequent agreement by the reviewer/commander served as a final “check and balance” in order to ensure that the report was given a fair consideration IAW the established intent of the current Officer and Enlisted Evaluation System in place.  

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.  To effectively challenge an evaluation, 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 provided insufficient information from the rating officials on the contested report.  Unfortunately, the applicant has not substantiated that the contested report was not rendered accurately and in good faith by all evaluators based on knowledge available at the time.  

A complete copy of the AFPC/DP2SPE evaluation is at Exhibit C.

AFPC/DPAPP recommends denial indicating there is no evidence of an error or an injustice warranting removal of all mentions in his OMPF of his removal from command of the 379th Expeditionary Aircraft Maintenance Squadron (EAMXS).  The removal from command of the applicant was a local leadership decision, and not something their office is able to remove or overturn. 

A complete copy of the AFPC/DPAPP evaluation is at Exhibit D.

AFPC/DP3DW recommends granting the applicant’s request, indicating there is evidence of an error or injustice warranting his SDE select status to be reinstated.  After researching facts and supporting statements presented (specifically from AFCENT/A4) and from other superiors, peers and subordinates, it appears that no negative maintenance trends/ATO crises were occurring during the applicant’s tenure as commander, for which he received a referral OPR and subsequently lost his DE designation.  Additionally, research revealed three officers assigned to the 379 EMXG were fired during a 5-month time span, which could very well indicate there was a “personality conflict” in a possibly hostile work environment that led to negative action versus the applicant, vice the statements mentioned in the contested OPR.  They recommend the Board reinstate the applicant’s DE designation (as the applicant is already endorsed by his current rater).  

A complete copy of the AFPC/DP3DW evaluation is at Exhibit E.

AFPC/DP2SP (Recognition) recommends denial indicating there is no evidence of an error or an injustice warranting the applicant’s request for a decoration appropriate for his rank for his period of deployment, 3 Jun 13 until 22 Oct 13.  After a thorough review of the applicant’s official military personnel record, they were unable to verify eligibility of a decoration at this time.  The applicant was removed from command and received a referral OPR for his deployed service, which would constitute a reasonable assumption as to why he did not receive a deployment decoration.  Should the Board find the administrative actions taken against the applicant during the matter in question unjust/unwarranted and grant his request to have the referral OPR and all mention of his being removed from command be removed from his record, then the applicant would reasonably need to be considered for a deployment decoration.  He would need to provide a recommendation from someone with firsthand knowledge of the act/achievement, preferably from someone within the applicant’s direct chain of command at the time of the act/achievement, a proposed citation, and eyewitness statements from those who can attest to the act/achievement.  

A complete copy of the AFPC/DP2SP (Recognition) evaluation is at Exhibit F.

AFPC/DP2SP (Promotions) recommends denial indicating there is no evidence of an error or an injustice warranting the applicant’s request that his corrected record meet Special Selection Boards (SSB) for all impacted selection boards (CY14C and CY15C Colonel (LAF) Central Selection Board).  The applicant met and was non-selected to the grade of Colonel by the CY14C (10 Nov 14) (P0614C) and CY15C (2 Nov 15) (P0615C) Below-the-Promotion Zone (BPZ) Central Selection Boards (CSB).  The governing directive is AFI 36-2501, Officer Promotions and Selective Continuation, dated 16 Jul 04.  Their evaluation must rely on the opinions of other Air Force experts.  In this case, AFPC/DP3SP, AF Evaluation/ Recognition Programs Branch recommended denial of applicant’s request to remove the OPR, due to not providing sufficient evidence or lack thereof.  AFPC/DP2SP Military Promotions, Evaluations and Recognitions Branch recommended disapproval of the decoration, as they were unable to verify eligibility for a decoration.  AFPC/DPAPP recommended disapproval to remove any mention of being relieved of command, since the removal was a local leadership decision and they are not allowed to remove or overturn their decision.  AFPC/DP3DW recommended providing relief, however on DE designation would only be reinstated if relief were granted.  They recommend denial of the applicant’s request for SSB consideration since no recommended corrections or changes were made to the applicant’s record.

A complete copy of the AFPC/DP2SP (Promotions) evaluation is at Exhibit G.

AFPC/JA recommends denial indicating there is no evidence of an error or an injustice.  They concur with the advisories written by AFPC/DP2SP, AFPC/DP2SPE, AFPC/DP2SPP, and AFPC/DPAPP and write only to add additional analysis.  They disagree with the advisory written by AFPC/DP3DW.  It appears DP3DW failed to holistically analyze the supporting documentation, relying only on the statements submitted in support of applicant to opine, “it could have very well been a ‘personality conflict’ in a possibly hostile work environment that led to negative action...”  Such opinion is not supported by the findings of the objective individuals charged with reviewing applicant’s allegations (i.e., the Investigating Officer (IO) and Evaluation Reports Appeal Board (ERAB)).   AFI 51-604, Appointment To and Assumption of Command, para 14.2.1 provides, “A superior competent authority’s decision to relieve a commander for cause must not be arbitrary and capricious.”  “Arbitrary and capricious” is defined as “[t]he absence of a rational connection between the facts found and the choice made, constituting a clear error of judgment.  The action does not appear to be supported by fair, solid, and reasonable cause, or based upon consideration of relevant factors.”  They reviewed the allegations and lengthy supporting documentation and concluded the applicant’s commander’s decision was not arbitrary and capricious, nor has the applicant proven any material error or injustice.  Accordingly, they recommend the application be denied.

A complete copy of the AFPC/JA evaluation is at Exhibit H. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Through counsel, the applicant refutes all the advisory opinions with the exception of AFPC/DP3DW.  Counsel opines that contrary to AFPC/JA, AFPC/DP3DW did use a holistic approach in their analysis.  In that respect, they considered statements from the AFCEN/A4, other superiors, peers and subordinates, numerous sworn statements contained in the commander directed investigation, and the researched facts provided, concluding that the negative actions taken against the applicant were arbitrary and capricious.  While counsel believes the applicant’s original submission addresses the issues discussed in the advisory opinions, they offer specific comments of each advisory:

a. Refuting AFPC/DP2SPE’s contention that the applicant failed to provide any information that contradicted the referral comments mentioned in his referral report showing an injustice had occurred.

b. Arguing that AFPC/DPAAP’s recommendation to deny because the decision to relieve the applicant from command “was a local leadership decision and not something we are able to remove or overturn” is simply not true.  The fact that “local leadership” made a decision does not imbue that decision with inviolability. 

c. Contending that it is fundamentally unfair to require the applicant to provide a recommendation for a decoration from the very people who have taken unfair and improper actions against him stated in AFPC/DP2SP’s (Recognition) advisory. 

d. If the applicant’s record were corrected, then obviously, AFPC/DP2SP’s (Promotions) statement that “an SSB is not appropriate as his record has not been corrected,” would no longer apply.  

e. Refuting AFPC/JA’s contention that a holistic review of the removal decision cuts in favor of denying the requested relief.  Counsel opines that the actual holistic analysis demonstrates that there was no proper rationale for the applicant’s removal from command and subsequent referral OPR.    

Counsel’s complete response is at Exhibit J.

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.  We took notice of the applicant’s complete submission in judging the merits of the case to include his rebuttal through counsel; however, we agree with the opinion and recommendation of AFPC/DP2SPE, AFPC/DP2SP, and AFPC/JA, and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  While we note the AFPC/DP3DW recommendation to reinstate his SDE select status and the MFRs submitted in support of the applicant opining that a possible personality conflict between the applicant and the maintenance group commander led to his removal from squadron command, we are not compelled to grant the requested relief.  Specifically, we note the findings of objective individuals (the Commander Directed Investigation (CDI) Investigating Officer (IO), and Evaluation Reports Appeal Board (ERAB)), concluding there was a lack of supporting evidence proving any of the applicant’s allegations/accusations the 379 EMXG/CC engaged in leadership that was inconsistent with ethical standards and standards expected of Air Force leaders.  Additionally, we noted the MFRs submitted by the ACC Associate Director of Logistics, 379 EMXG/CCC, and 379 EMXG/WWM, supportive in nature of the 379 EMXG/CC’s decision to remove the applicant from squadron command, citing the applicant’s inability to lead in a high operations tempo, combat operations environment.  Therefore, in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the requested relief.

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-2016-00214 in Executive Session on 21 Mar 17 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-00214 was considered:

	Exhibit A.  DD Form 149, dated 8 Jan 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2SPE, dated 26 Jul 16.
	Exhibit D.  Memorandum, AFPC/DPAAP, dated 10 Aug 16.
	Exhibit E.  Memorandum, AFPC/DP3DW, dated 18 Aug 16.
	Exhibit F.  Memorandum, AFPC/DP2SP (Recognition), received 
  3 Oct 16.
	Exhibit G.  Memorandum, AFPC/DP2SP (Promotion), received 
  4 Oct 16.
	Exhibit H.  Memorandum, AFPC/JA, dated 21 Oct 16.
	Exhibit I.  Letter, SAF/MRBR, dated 18 Nov 16.
	Exhibit J.  Letter, Applicant’s Counsel, dated 19 Dec 16.

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.