RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02317
		INDEX NUMBER:  131.00; 111.00
	XXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The Officer Performance Reports for the following periods be removed from his records:

	  a.  30 Jan 98 to 27 Jan 99

	  b.  28 Jan 99 to 27 Jan 00

	  c.  28 Jan 00 to 27 Jan 01

He be considered for promotion to the grade of major by Special Selection Board (SSB) beginning with the CY03A (5 May 03) Major Central Selection Board.

He be reinstated to active duty.

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APPLICANT CONTENDS THAT:

His job performance as a chaplain was rated on his past marriage issues rather than his actual job performance in violation of AFI 36-2406, paragraphs 3.7.17 and 3.7.7.  Subsequently, he was twice passed over for promotion.

The bias he suffered on the contested reports carried over to his next assignment and affected his subsequent ratings.

In support of his appeal, applicant provides a four-page statement with 45 attachments giving the background of his Air Force career and the circumstances leading to the contested OPRs.

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

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STATEMENT OF FACTS:

The applicant entered active duty on 30 Jan 98.  He was considered but not selected for promotion to the grade of major by the CY03A and CY03B Major Central Promotion Boards.  The applicant was discharged effective 31 Aug 04 for nonselection, permanent promotion.

A resume of the applicant’s OPRs since entry into the Air Force follows:

	  Closeout Date				Overall Rating

	  *27 Jan 99				 Meets standards
	  *27 Jan 00				 Meets Standards
	  *27 Jan 01				 Meets Standards
	  #31 Aug 01				 Meets Standards
	  #31 Aug 02		Report removed (AF Form 77)
	 ##16 May 03				 Meets Standards
	   16 May 04				 Meets Standards

	*  Contested OPRs
	#  With contested OPRs removed, only reports on file for CY03A selection board
	## Additional OPR on file for CY03B selection board

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AIR FORCE EVALUATION:

AFPC/DPPPEP recommends denial of the applicant’s request.  The applicant filed an IG complaint on 23 Oct 02 against his rater on his OPR closing 31 Aug 02.  This rater was not in the rating chain on either of the contested reports listed above.  The applicant contends the bias treatment he received on the contested reports carried over to the rating on his OPR closing 31 Aug 02, which he filed the IG complaint over.  The IG investigated the applicant’s claims of whistleblower reprisal and concurred that adverse personnel actions were taken against him in reprisal for making a protected communication.  The applicant did not file a complaint nor did the IG investigate any bias actions on the part of the evaluators for the OPRs closing 27 Jan 99, 27 Jan 00, and 27 Jan 01.  The applicant has not provided factual evidence the evaluators on the contested reports were biased or even connected to the IG investigation he later filed against a different rater.

The applicant contends the contested reports rated his job performance with a negative bias based on his marriage issues of the past.  However, an examination of the reports does not reveal any statements relating to his marriage issues.  The only evidence he does provide is that his rating chain considered his marital issues when making their Conditional Reserve Status (CRS) recommendations as there were concerns the applicant’s sponsor for his Air Force Chaplain certification might withdraw his endorsement (based on his marital issues), causing him to pursue another endorser in order to maintain his certification as an Air Force chaplain.

The complete evaluation is at Exhibit C.

AFPC/DPAH concurs with the recommendations made by AFPC/DPPPEP.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant indicates in his response to the Air Force evaluations he strongly disagrees with their recommendations.  He contends the evaluations missed the mark by not seeing the obvious contradiction between the poor OPRs written by his rating chain versus the very positive letters written on his behalf by the unit commanders he directly supported.  He states they also disregarded part of AFI 36-2406, paragraph 3.7.17 by only utilizing part of its content when making their opinion.  The applicant states the reference tells evaluators to refrain from considering, not just including the prohibited information.  He states AFPC/DPPPEP totally disregarded paragraph 3.7.7, Inappropriate Evaluator Considerations and Comments, specifically considering “… conduct based on unreliable information ….”

The applicant contends that in spite of the negative OPR ratings he received, he has written documents showing a positive performance level that directly contradicts the OPRs.  He lists four areas in support of this contention.  He opines the evaluation further missed the mark by stating no factual evidence was provided to show a bias during the timeframe of the contested OPRs and that no evidence was provided to show a connection between the contested OPRs and the IG complaint he later filed.  He references a letter, dated 16 Jun 04, written by the former wing commander of the unit he received the contested OPRs, which extols his performance and that the weak Conditional Reserve Status comments were based on a possible change in marital status.  The applicant states the rater that made the poor CRS recommendation wrote two of the contested OPRs and the rater that started the negative trend and who later had six counts of sexual harassment substantiated against him wrote the other report.  

The applicant provides information on why he believes the rater he filed the IG complaint against was biased and how it was connected to his prior assignment.

The applicant also provides a statement of support from his wife along with many of the same documents submitted with his original application.

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

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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 error or injustice regarding the applicant’s request to remove three contested OPRs from his record, to consider him for promotion to the grade of major by special selection board, and reinstatement to active duty.  In making this determination, we note a seeming contradiction between the tenor of the contested OPRs and the letters of support the applicant has provided regarding his performance of duties.  While individuals outside the rating chain prepared several of the letters, they did receive direct support from the applicant in his duties as a chaplain and were in a unique position to comment on the level of his performance.  Additionally, we note the letter of support written on his behalf by the wing commander who also was the reviewer on two of the reports in question.  The wing commander states that weak recommendations for Conditional Reserve Status were made because of the applicant’s marital problems rather than his duty performance.  The applicant believes these reports were the direct cause of his nonselection for promotion to major.  His speculation alone though is not sufficiently compelling for us to come to this conclusion.  However, we believe enough doubt has been created to warrant giving him the benefit of the doubt and to correct the record as he has requested.  In removing the three contested OPRs from the applicant’s record, we note he will only have one Air Force evaluation on file for promotion consideration by SSB for the CY03A selection board and only two on file for consideration by the CY03B selection board.  With such an abbreviated record of performance, it is questionable whether the applicant will have a fair and equitable opportunity for promotion selection.  As such, we believe an additional measure of relief is warranted to provide the applicant an opportunity to build a reasonable record of performance for promotion consideration.  Therefore, we recommend the applicant’s records be corrected as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

	 a.  He was not considered for promotion to the grade of major by the CY03A and CY03B Major Central Selection Boards.

	 b.  He was not discharged from all appointments on 31 August 2004 but was continued on active duty and ordered in a permanent change of station (PCS) status to his home of record pending further orders.

	 c.  The Company Grade Officer Performance Report (OPR), AF Form 707B, closing 27 January 1999, be declared void and removed from his records.

	 d.  The Company Grade Officer Performance Report (OPR), AF Form 707B, closing 27 January 2000, be declared void and removed from his records.

	 e.  The Company Grade Officer Performance Report (OPR), AF Form 707B, closing 27 January 2001, be declared void and removed from his records.

It is further recommended that any nonselections for promotion to the grade of major in the primary zone prior to receiving a minimum of two OPRs with at least 250 days of supervision, in the grade of captain, be set aside.

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The following members of the Board considered Docket Number BC-2004-02317 in Executive Session on 11 January 2005, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 23 Jul 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPPEP, undated.
     Exhibit D.  Memorandum, AFPC/DPAH, dated 10 Nov 04.
     Exhibit E.  Letter, SAF/MRBR, dated 19 Nov 04.
     Exhibit F.  Letter, Applicant, dated 13 Dec 04, w/atch.

AFBCMR BC-2004-02317

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXX, XXXXXXX, be corrected to show that:

		a.  He was not considered for promotion to the grade of major by the CY03A and CY03B Major Central Selection Boards.

		b.  He was not discharged from all appointments on 31 August 2004 but was continued on active duty and ordered in a permanent change of station (PCS) status to his home of record pending further orders.

		c.  The Company Grade Officer Performance Report (OPR), AF Form 707B, closing 27 January 1999, be, and hereby is, declared void and removed from his records.

		d.  The Company Grade Officer Performance Report (OPR), AF Form 707B, closing 27 January 2000, be, and hereby is, declared void and removed from his records.

		e.  The Company Grade Officer Performance Report (OPR), AF Form 707B, closing 27 January 2001, be, and hereby is, declared void and removed from his records.

	It is further directed that any nonselections for promotion to the grade of major in the primary zone prior to receiving a minimum of two OPRs with at least 250 days of supervision, in the grade of captain, be set aside.