RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-03264 INDEX CODE: 101.01, 126.03 COUNSEL: HEARING DESIRED: YES ___________________________________________________________________ APPLICANT REQUESTS THAT: His referral officer performance report (OPR), Letter of Reprimand (LOR), and curtailment action letter be removed from his official military personnel file; and he be considered for promotion through a Special Selection Board (SSB). ___________________________________________________________________ APPLICANT CONTENDS THAT: The referral OPR, LOR, and curtailment action were the product of a biased investigation that failed to consider the accuser’s significant motive to lie and failed to consider the applicant’s statements. The referral OPR, LOR, and curtailment action were the product of racism and discrimination in the squadron that was aimed at removing the only African American in the command. The curtailment action letter failed to recognize that on 2 Oct 05, the applicant had non-recommended the individual who was later to have been reprised against for promotion. In November 2004, he took command of the squadron. Prior to 11 Sep 01, the squadron was primarily a civilian workforce. Following 11 Sep 01, the squadron began to transition to becoming staffed by primarily Department of Defense (DoD) personnel, AGR military members, and traditional Reservists. The transition created significant rifts between personnel and the squadron developed a culture of mediocrity. Prior to assuming command, morale and discipline were rated poorly according to a command climate assessment (which the Government did not provide to him). From 2003 to November 2004, the squadron was without a commander because the previous commander was removed for cause (driving under the influence charge). He took command of a squadron that had been without leadership for months and was staffed primarily by Reservists that lacked the military bearing and discipline expected of them. The senior leadership was wholly inadequate in addressing the void of officer leadership and they fostered a command climate tolerant of discrimination. On 5 Nov 05, a Commander Directed Investigation (CDI) was completed and on 30 Nov 05, an Inspector General (IG) Investigation was initiated and completed on 22 Jan 06. Confusion was created because the CDI appointment order is dated 20 Sep 05. The CDI only references one specific date prior to 20 Sep 05. The report does not discuss any allegations that would support a CDI prior to 20 Sep 05. The bulk of the CDI addresses the incidents that allegedly occurred in October. The CDI was initiated two levels above the squadron level and the underlying basis for the CDI as it existed on 20 Sep 05 is not self-evident from the report. The IG report provides a brief history of the racial division in the squadron. A recent example of blatant discrimination and racism at the base was that an officer hung a noose in a warehouse. Neither the CDI nor the IG investigation reports analyzed the single most important fact, that the applicant non-recommended several non-commissioned officers (NCOs) for promotion on 2 Oct 05. Both reports begin with a narration of the events that allegedly began on 4 Oct 05. According to the CDI, he was informed of the CDI on 3 Oct 05. If you were to believe the CDI timeline, an investigation was ongoing in the squadron for two weeks before the squadron commander was notified. These fundamental errors in the timeline question the reliability of the investigation’s conclusions. What is obvious in the squadron is that the NCOs had been running a loose unit since November 2003 and were dissatisfied with their non- recommendation for promotion. Following the investigation, he was removed from command, given a referral OPR, and a non-promotion recommendation. On 16 May 06, he responded to his referral OPR indicating it was based upon an unreliable investigation and should be removed. The report is internally inconsistent. It states he increased unit morale, but decreased morale by the intimidation and maltreatment of one subordinate. On 13 Jun 06, he received an LOR and provided a rebuttal on 27 Jun 06, denying the allegations, specifically addressing the NCO’s motives to fabricate, and described the problems that existed in the squadron prior to his arrival. On 21 Jul 06, he was given a new LOR which changed the date and added more information regarding the allegations. He submitted another rebuttal on 9 Aug 06. On 28 Sep 06, his AGR tour was curtailed and on 10 Oct 06, he filed an Article 138 complaint against his commander and requested redress. On 16 Oct 06, the commander responded and on 21 Jun 07, he was informed his curtailment action was approved and his last day was 12 Jul 07. In support of his request, the applicant provided 23 attachments. The applicant's complete submission, with attachments, is at Exhibit A. ___________________________________________________________________ STATEMENT OF FACTS: On 28 Sep 06, the applicant received notification that his commander was going to request curtailment of his Active Guard Reserve (AGR) tour based on investigative findings that the applicant reprised against an enlisted member of his squadron. The applicant failed to acknowledge receipt of the notification. The curtailment action was approved on 21 Jun 07 and his last day of command was 12 Jul 07. A CDI was conducted from 20 Sep 05 until 5 Nov 05. There were seven allegations against the applicant and all except two were substantiated. An IG Investigation was conducted from 6 Nov 05 until 22 Jan 06. On 27 Jun 06, three allegations of reprisal were substantiated. On 16 Oct 06, the applicant’s commander provided a response to his request for redress under Article 138, UCMJ. The commander stated the decision to remove the applicant from command was the correct decision at the time and was confirmed by the IG investigation and the applicant’s request for redress was denied as both untimely and unwarranted. ___________________________________________________________________ AIR FORCE EVALUATION: HQ ARPC/DPB recommends denial of the request. DPB states referral report procedures outlined in AFI 36-2406, Officer and Enlisted Evaluations Systems, paragraph 3.9, were followed. The rater properly notified the applicant. The applicant acknowledged receipt, provided comments, and forwarded the comments to the additional rater (also reviewer). The additional rater reviewed the applicant’s response and concurred with the rater. The OPR then became a part of the applicant’s official military record. The complete HQ ARPC/DPB evaluation is at Exhibit B. ___________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 9 Nov 07 for review and comment within 30 days. As of this date, this office has not received a response (Exhibit C). ___________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: HQ ARPC/JA recommends denial. JA states there does not appear to be any defect in the IG investigation. In reviewing the CDI, they may have steered the CDI in a slightly different direction, but based on what was provided, it is not apparent that the CDI is defective. In each action taken against the applicant, the applicant was given due process. The LOR and curtailment were issued at the commander’s discretion. JA states that at this point, they are not going to second guess the commander and his decision to issue an LOR and curtail the applicant’s tour. The complete HQ ARPC/JA opinion is at Exhibit D. ___________________________________________________________________ APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: Counsel states the advisory opinion provides no substantive analysis of the assignments of errors in the application. The opinion, by contrast, states only that the applicant was given due process and that LORs and curtailment actions are issued at the commander’s discretion. Most importantly, the advisory opinion does not respond to the applicant’s allegation that the referral OPR, LOR, and curtailment action were the product of racism and discrimination that was aimed at removing the only African American officer in the command. This is a very serious allegation that has gone unanswered by the Government. The applicant provided clear evidence that there was a history of racial division in the squadron. Many of the airmen perceived a “good-old boy” network that prevented Blacks from advancing in rank. The applicant even provided evidence of an officer hanging a noose in a warehouse at Dobbins Air Force Base. The racial discrimination evident in this case is intolerable. The Government claims that the applicant was afforded due process because the commander revised the LOR after the applicant submitted his rebuttal. The applicant addressed this illusion of due process in his supplemental statement. On 21 Jul 06, the commander ostensibly revised the LOR. However, the revised LOR makes no mention of the applicant’s rebuttal and simply changes the date of the old LOR and adds more allegations. On 9 Aug 06, the applicant submitted another rebuttal to the revised LOR. The commander’s response was to initiate a curtailment action. The Government advisory opinion has taken quite a cowardly approach to addressing allegations of racism in Atlanta, Georgia. The Government states “we are not going to second guess the commander and his decision to issue an LOR and curtail the applicant’s tour.” The only African American commander at Dobbins Air Force Base was removed from command short of his retirement on the basis of allegations made by a white non-commissioned officer who was non-recommended for promotion by the applicant. The IG highlighted a history of racial division in the unit, a noose was hung from the warehouse, and the Air Force refuses to second guess the removal of the African American in command at Dobbins. The Government’s advisory opinion is completely useless. Under no circumstances should the Board refuse to question the commander’s discretion under these circumstances. There is no place for racism, or even perceived racism, in the Air Force. The Government’s refusal to even question the appearance of racism is inexcusable. Given the undercurrent of racism existent in this case and the significant prejudice to the applicant’s substantial rights, the applicant respectfully request that relief be granted. The applicant’s complete response is at Exhibit F. ___________________________________________________________________ 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 error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Although there were documented cultural and environmental climate issues within the unit, the IG investigation substantiated the applicant had reprised against individuals within the unit. Based on the preponderance of the evidence of the reprisal, we are not persuaded that the contested report, LOR, and curtailment action were in error or unjust. Persuasive evidence has not been presented which would lead us to believe that the administrative actions taken by his commander were beyond his scope of authority or that he abused his discretionary authority in taking those actions. We do not find the applicant’s uncorroborated assertions, in and by themselves, sufficiently persuasive in this matter. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application. ___________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 Docket Number BC-2007-03264 in Executive Session on 5 February 2008, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 1 Oct 07, w/atchs. Exhibit B. Memorandum, ARPC/DPB, dated 2 Nov 07. Exhibit C. Letter, SAF/MRBR, dated 9 Nov 07. Exhibit D. Memorandum, ARPC/JA, dated 1 Dec 08. Exhibit E. Letter, SAF/MRBR, dated 9 Dec 08. Exhibit F. Applicant’s Rebuttal, dated 26 Dec 08.