RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01672

						COUNSEL:  YES

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

1.  The Letter of Reprimand (LOR), dated 27 Feb 12 and the referral AF Form 707, Officer Performance Report (OPR), dated 11 June 12, be removed from his Officer Selection Record (OSR).

2.  The gap created by the removal of the derogatory documents be replaced with appropriate documentation to notify further reviewers and/or promotion boards that the documents were removed and that no inference, negative or otherwise, is to be drawn by any [promotion] board action with regard to the missing OPR event.

APPLICANT CONTENDS THAT:

The applicant, through counsel, makes the following contention:  On or about 29 Oct 11, while returning from exercise JADED THUNDER 2011 he went to the rear of the aircraft to use the restroom at which time he was the recipient of a “naked gunner hug”, a practical joke amongst gunship aircrew.  He laughed the joke off and proceeded to strongly counsel the crew member responsible.  Later in the sortie, he was authorized an in-flight rest break IAW AFI 11-202V3, General Flight Rules, by the aircraft commander.  He proceeded to use his authorized rest and take a nap.  During the time of his rest the navigator sitting next to him, left his crew position and committed an indecent/unprofessional act against an enlisted crewmember.  After the flight, the enlisted crewmember filed a sexual assault complaint against the navigator.  He had no knowledge this event occurred on the aircraft, as he was using his in-flight rest to sleep.  He only learned of it after the complaint was filed.  A Commander’s Directed Investigation (CDI) was commenced as a result of the formal complaint.  This in turn caused the “naked gunner hug” incident to become a matter of record and investigated.  Because he was the senior ranking officer in the back of the plane, he was accused of being “involved in the breakdown of crew discipline” for not reprimanding the crewmember who committed the “naked gunner hug” more seriously.

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

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of Major, O-4.

On 27 Feb 12, the applicant was issued a LOR from his squadron commander for violation of Article 92 of the Uniform Code of Military Justice (UCMJ) for derelict in duties as an Officer by allowing an act of indecent exposure and a form of hazing called, “the naked gunner hug” during flight operations on 29 Oct 11 while participating in exercise JADED THUNDER.

On 1 Mar 12, the applicant exercised his right to provide comments and documentation in response to the LOR.

On 1 Mar 12, the applicant’s squadron commander notified him of his decision to place the LOR in his Officer Selection Record (OSR) and the creation of an Unfavorable Information File (UIF).  The applicant acknowledged the action on 1 Mar 12 and elected to provide written comments within the required 3 duty days, 7 Mar 12.

On 7 Mar 12, the applicant’s squadron commander indicated that he did not receive written comments from the applicant and recommended the LOR not be placed in his OSR.  

On 22 Mar 12, the applicant provided comments to his squadron commander requesting the LOR not be placed in his OSR.

On 27 Mar 12, the applicant’s wing commander directed the LOR be placed in his OSR.

On 11 Jun 12, the applicant was issued a referral OPR, inclusive period 21 Apr 11 thru 20 Apr 12, with markings “Does Not Meet Standards”, blocks III and IX, and comments of “Lapse in judgement…he was involved in a breakdown in crew discipline for which he received an LOR”, block V.  The applicant provided comments on 13 Jun 12 and the Reviewer considered his comments, but concurred with the referral OPR.

On 4 Apr 16, according to the documentation provided by the applicant, he received a feedback session with his squadron commander discussing his Promotion Recommendation Form (PRF) and the PRF process, indicating the promotion board reviews all OPRs and not just the last three OPRs as he was previously counseled.

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

AIR FORCE EVALUATIONS:

AFPC/DP2SSM recommends denial indicating there is no evidence of an error or an injustice.  The applicant’s commander had the authority to initiate an LOR and UIF in accordance with (IAW) AFI 36-2907, Unfavorable Information File (UIF) Program.

IAW AFI 36-2907, paragraph 1.3.2. “For officers, commanders refer optional documents (LOAs, LOCs) to the offending member along with an AF IMT 1058, Unfavorable Information File Action, before establishing a UIF. Mandatory UIF documents (Article 15s, court-martial or civilian court convictions) are not referred via AF IMT 1058.  LORs are mandatory for file in an officer’s UIF, and must be entered into the UIF via AF IMT 1058, but the commander does not need to submit the AF IMT 1058 to the officer.  The officer is provided an opportunity to refute the LOR when it is initially presented (see paragraph 3.5.1.).”

IAW AFI 36-2907 paragraph 3.1. “Who Can Use Counseling, Admonitions, and Reprimands. Commanders, supervisors, and other persons in authority can issue administrative counseling, admonitions, and reprimands. These actions are intended to improve, correct, and instruct subordinates who depart from standards of performance, conduct, bearing, and integrity, on or off duty, and whose actions degrade the individual and unit's mission. This includes issuing administrative counseling, admonitions, and reprimands to Reservists who commit an offense while in civilian status.”

IAW AFI 36-2907 paragraph 3.4. “LORs. A reprimand is more severe than a counseling or admonition and indicates a stronger degree of official censure. Commanders may elect to file a LOR in an UIF for enlisted personnel. LORs are mandatory for file in the UIF for officer personnel.”

A complete copy of the AFPC/DP2SSM evaluation is at Exhibit C.

AFPC/DPS2PE recommends denial indicating there is no evidence of an error or an injustice.  IAW AFI 36-2406, Officer and Enlisted Evaluation Systems, paragraph 10.1 the Evaluation Reports Appeal Board (ERAB) was established to provide all Air Force personnel with an avenue of relief for correcting errors or injustices in evaluations at the lowest possible level. If an evaluation cannot be corrected under Table 10.2., Correcting Minor Errors on Evaluations, an applicant's first avenue of relief for correcting an evaluation is through the ERAB.  An applicant's second and last avenue of relief is via the Air Force Board for Correction of Military Records (AFBCMR).  The applicant should exhaust all other avenues of relief before submitting his request to the AFBCMR.

A complete copy of the AFPC/DPS2PE evaluation is at Exhibit D.

AFPC/JA recommends denial indicating there is no evidence of an error or an injustice and concur with both AFPC/DP2SSM and AFPC/DPS2PE recommendations.  By regulation, Air Force commanders and supervisors are charged with the responsibility to administratively censure inappropriate or improper behavior in appropriate circumstances.  As stated in AFI 36-2907, “These actions are intended to improve, correct, and instruct subordinates who depart from standards of performance, conduct, bearing, and integrity, on or off duty, and whose actions degrade the individual and unit's mission.”  LORs are discretionary in nature, must be supported by a preponderance of the evidence, and will not be disturbed unless the evidence is not sufficient and/or the action constituted an abuse of discretion.  LORs are intended to improve, correct, and instruct subordinates who depart from standards of performance and conduct.  In this case, the commander believed it necessary to reprimand applicant for failing to maintain good order and discipline as an officer and one of the senior members of the flight.  Such action is well within the discretion of the commander.  The fact that the applicant disagrees with the LOR, believing he appropriately handled the situation, does not provide a basis for relief.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to the applicant on 19 Jan 17 and to the applicant’s counsel on 9 Feb 17 for review and comment within 30 days (Exhibits F and G).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:

1.  The applicant has not 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 requests to remove the Letter of Reprimand (LOR), dated 27 Feb 12 from his Officer Selection Record (OSR).  We took careful notice of the applicant's complete submission in judging the merits of the case; however, we do not find the evidence provided sufficient to override the rationale provided by AFPC/DP2SSM and AFPC/JA.  Thus, we agree with their opinions and recommendations and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice concerning the LOR.  Therefore, in the absence of persuasive evidence to the contrary, we find no basis to recommend granting this portion of the relief sought in this application.  Regarding the applicant’s request for removal of the referral AF Form 707, Officer Performance Report (OPR), dated 11 June 12, from his OSR, we agree with the AFPC/DPS2PE, 18 Oct 16, letter advising the applicant he has not exhausted his administrative remedies.  In this respect, we note this Board is the highest administrative level of appeal within the Air Force.  As such, an applicant must first exhaust all available avenues of administrative relief provided by existing law or regulations prior to seeking relief before this Board, as required by the governing Air Force Instruction.  In view of this, we find this portion of the application is not ripe for adjudication at this level, as there exists a subordinate level of appeal that has not first been depleted.  Should the applicant feel he is still the victim of error or injustice after exhausting his administrative remedies on this issue, he may reapply to the Board.  Lastly, the applicant’s request that the gap created by the removal of the derogatory documents be replaced with appropriate documentation to notify further reviewers and/or promotion boards that the documents were removed and that no inference, negative or otherwise, is to be drawn by any [promotion] board action with regard to the missing OPR event is moot, as there are no recommendations to correct the record to remove the LOR or the OPR from his record.  Therefore, in the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

THE BOARD RECOMMENDS 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-2016-01672 in Executive Session on 27 Jul 17 under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01672 was considered:

	Exhibit A.  DD Form 149, dated 1 Mar 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2SSM, dated 21 Jul 16.
	Exhibit D.  Memorandum, AFPC/DPS2PE, dated 18 Oct 16.
	Exhibit E.  Memorandum, AFPC/JA, dated 27 Oct 16.
	Exhibit F.  Letter, AFBCMR, dated 19 Jan 17, w/atchs.
	Exhibit G.  Letter, AFBCMR, dated 9 Feb 17, 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.