RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2016-01493
		
						COUNSEL:  NO

						HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

He receive a direct promotion to the grade of colonel as if he had been selected for promotion by the Calendar Year 2014C Line of the Air Force (LAF) Central Selection Board. 

APPLICANT CONTENDS THAT:

He was the victim of substantiated reprisal and was improperly removed from his position, which created an irrecoverable injustice in his record.  Specifically, his record effectively reflects he was prematurely removed from his position without an explanation, which led to a direct inference that his performance was sub-standard.  The Evaluation Reports Appeals Board (ERAB) removed his improper Officer Performance Report (OPR) and replaced it with an AF Form 77, Letter of Evaluation, however, the AF Form 77 does not mention he was reprised against and does not accurately reflect his outstanding performance during that period.  Further, his record reflects an obvious regression in his duty responsibilities when he was improperly removed from his position where he led eight people, to a staff job where he led no people, and prior to the reprisal being substantiated he was evaluated for two years under the knowledge he had been removed from his previous job.  He was not selected to the grade of colonel due to the negative inference created by the reprisal against him.  Any Special Selection Board (SSB) would not have the full and complete picture of his performance.  

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

STATEMENT OF FACTS:

The applicant was commissioned in the grade of second lieutenant in the Air Force Reserve effective, 13 May 94.

According to the documentation submitted by the applicant, on 20 Dec 12, he received an OPR while serving as the Director, J1, HQ Special Operations Command Africa (AFRICOM), covering the period 10 Jun 11 through 10 Nov 11, which contained some unfilled white space in the Additional Rater’s Overall Assessment block. 

On 6 Aug 13, the applicant received an OPR while serving as a Contingency and Readiness Officer, J1, United States European Command (USEUCOM), covering the period 11 Nov 11 through 1 May 12.  

According to the documentation submitted by the applicant:

	a.  On 22 Jul 13, upon completion of a Whistleblower Reprisal Investigation by the Department of Defense Inspector General (DoD/IG), the DoD/IG substantiated reprisal, concluding, “Based upon a preponderance of the evidence, that a Navy Rear Admiral relieved [the applicant] from his positon…and failed to place him in another position commensurate with his rank, in reprisal because he suspected [the applicant] of filing an IG complaint against him, in violation of 10 U.S.C 1034.”  The DoD/IG further recommended the Air Force review his Official Military Personnel file to “ensure no harm to [his] promotion potential occurred as a result of [his] reassignment.”  

	b.  On 17 Oct 13, the applicant received letters from both the DoD Deputy IG for Administrative Actions and the Air Force Director of Force Management Policy indicating their determinations that his early reassignment and mediocre OPR may have been viewed negatively by the colonel promotion board, and recommending [he] seek relief from the AFBCMR.

Prior to the applicant’s in-the-primary-zone (IPZ) selection board to the grade of colonel, the applicant’s records met a Management Level Review (MLR) at HQ Third Air Force (USAFE), and he received a “Promote” recommendation for the P0614C Central Selection Board.  

On 15 Nov 15, an AF Form 77, Letter of Evaluation, covering the period 10 Jun 11 through 10 Nov 11 was placed in his file, which included the statement “Not rated for the above period.  Report was removed by Order of the Chief of Staff, USAF.”  

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

AIR FORCE EVALUATION:

AFPC/DP2SP recommends partial relief, indicating there is evidence of an error or injustice.  Both Congress and the Department of Defense (DoD) have made it clear their intent is for errors affecting promotion to be resolved through the use of Special Selection Boards (SSBs).  Title 10 United States Code (USC) § 628(b), DoD Directive 1320.11, paragraph 4.2., and AFI 36-2501, Officer Promotions and Selective Continuation, Chapter 6, mirror that position.  When many good officers are competing for a limited number of promotions, it is extremely competitive.  Without access to all the competing records and a review of their content, sending approved cases to SSBs for remedy is the fairest and best practice. To grant a direct promotion would be unfair to all other officers who have competitive records but did not get promoted. 

On 10 Nov 14, the applicant met the Calendar Year 2014 (CY14) Colonel Central Selection Board (CSB) as an IPZ candidate, and was not selected for promotion.  On 2 Nov 15, the applicant met the CY15 Colonel Central Selection Board (CSB) as an above-the-primary-zone (APZ), and was not selected for promotion.  The ERAB directed the OPR covering the period 10 Jun 11 through 10 Nov 11 be removed from his record and replaced with an AF Form 77.  At that time, the applicant had the option to request to meet an SSB for the CY14C Colonel CSB.  He could have then written a letter to the board addressing the reprisal and the early removal from his position and his accomplishments during the period of the removed OPR.  The applicant chose not to request an SSB.

They recommend denial of the applicant's request for direct promotion to the grade of colonel.  However, based on the removal of his OPR by the ERAB, they recommend granting him SSB consideration for the P0614C Colonel IPZ CSB.  This will also allow him to write a letter to the board.

A complete copy of the AFPC/DP2SP evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of his request, the applicant submitted a rebuttal response to the Air Force evaluation in which he reiterates his allegation of reprisal was substantiated, he was not selected to the grade of colonel as a result of the negative inference created by the reprisal, and reaffirms his request for a direct promotion.

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 concerning the applicant’s request for a direct promotion to the grade of colonel.  We took notice of the applicant’s complete submission, to include his rebuttal response to the advisory opinion, in judging the merits of the case; however, we agree with the opinion and recommendation of AFPC/DP2SP and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice which would warrant a direct promotion.  In this respect, we note officers compete for promotion under the whole person concept whereby a multitude of factors are carefully assessed by the selection board members prior to scoring the record.  In addition, they may be qualified but - in the judgment of selection board members vested with discretionary authority to score their records – may not be the best qualified of those available for the limited number of promotion vacancies.  Consequently, a direct promotion should be granted only under extraordinary circumstances; i.e., a showing that the officer’s record cannot be reconstructed in such a manner so as to permit him/her to compete for promotion on a fair and equitable basis; a showing that the officer exercised due diligence in pursuing timely and effective relief; lastly, that had the original errors not occurred, the probability of his being selected for promotion would have been extremely high.  We do not find these factors in this case.  Therefore, based on the available evidence of record, we find no basis upon which to favorably consider this portion of the application.

4.  Notwithstanding our determination above, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After carefully considering the totality of the evidence before us, we are persuaded that a measure of relief is warranted.  In this respect, the applicant was the victim of substantiated reprisal and the Evaluation Reports Appeals Board (ERAB) removed his improper Officer Performance Report (OPR), which deprived him of full and fair promotion consideration and replaced it with AF Form 77, Letter of Evaluation, however, the AF Form 77 does not mention he was reprised against.  We note AFPC/DP2SP’s recommendation for a partial grant based upon the substantiated allegation of reprisal.  We agree with this recommendation.  Therefore, based on the above, we believe the applicant should be considered for promotion to the grade of colonel and we recommend his records be corrected as indicated below.  

5.  The Department of Defense Inspector General (DoD/IG) investigated and substantiated reprisal existed based upon a preponderance of the evidence.  As such, based on the authority granted to this Board pursuant to Title 10 U.S.C. § 1034, we reviewed the complete evidence of record and determined the applicant has established he was subjected to reprisal in violation of Title 10 U.S.C. § 1034.  The evidence provided supports the allegation of adverse personnel actions taken against the applicant.  The applicant was subjected to administrative actions in the form of early removal from his position and reassignment to a position not commensurate with his rank and prior performance, and was provided a weak OPR, which would be viewed negatively by a promotion board.  The Board strongly recommends the applicant write a letter to the President of the supplemental Management Level Review (MLR) and attach this complete AFBCMR Record of Proceedings to make it an official matter of record.  In view of the totality of the circumstances in this case, we believe our recommendations for correction constitute proper and just relief.  

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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected as follows:

	a.  He be provided Supplemental Management Level Review (SMLR) consideration for the 2014C Colonel Central Selection Board (CSB) (P0614C), utilizing the AF Form 709, Promotion Recommendation Form (PRF), prepared for consideration by the 2014C Colonel CSB (P0614C).  

	b.  He be provided Supplemental Selection Board (SSB) consideration for the P0614C Colonel CSB as an in-the-primary-zone (IPZ) candidate, utilizing the resulting PRF from the SMLR for P0614C.  

The following members of the Board considered AFBCMR Docket Number BC-2016-01493 in Executive Session on 15 Nov 16 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01493 was considered:

	Exhibit A.  DD Form 149, dated 6 Apr 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2SP, dated 6 Jun 16.
	Exhibit D.  Letter, SAF/MRBR, dated 28 Sep 16.
	Exhibit E.  Letter, Applicant, dated 28 Oct 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.