RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04199 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ THE APPLICANT REQUESTS THAT: 1. His Referral Officer Performance Report (OPR) rendered for the period 2 May 2006 to 31 July 2006 be corrected or removed. 2. He be considered by a Special Selection Board (SSB) for promotion to lieutenant colonel retroactively to 1 May 06, alongside those in his United States military attaché peer group. 3. His Promotion Recommendation Forms (PRFs) be updated to reflect appropriate changes for all the SSBs he is provided promotion consideration. 4. He receive all back pay associated with the promotion to lieutenant colonel from 1 May 2006. ________________________________________________________________ THE APPLICANT CONTENDS THAT: The contested OPR falsely characterizes the events, his performance and duties as the Assistant Air Attaché to China. He states that he executed the mission requirements per the Standard Operating Procedures (SOPs) and leadership direction and at no time did his actions conflict with USDAO's SOP. The orders given by those appointed above him conflicted with normal business SOPs and in the aftermath led to an unfair evaluation. This "non-event" was used to derail his promotion and military career. In support of his appeal, the applicant provides a personal statement; copies of Officer Background Information (Bio, Résumé & Service Record): Timeline of Events, 12 May 2006 – Present; copies of letters from the Secretary of the Air Force and Inspector General,; copies of letters to the Secretary of Defense, Secretary of the Air Force, the CY07B and CY08B Lieutenant Colonel Air Force Promotion Boards, the Air Force Education and Training Command Promotion Review Board and a host of letters and extracts from his military personnel and officer selection record. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant, while serving as a major, was assigned as an Air Attaché to China. The applicant was relieved from active duty on 31 January 2011 and retired with a 1 February 2011 effective date. He was credited with 20 years and 16 days for active service for retirement. The applicant was considered and nonselected by the Calendar Year 2005A (CY05A), CY06A, CY06C, CY07B, CY08B, CY09B, and CYI0A Lieutenant Colonel Central Selection Boards (CSBs). The applicant’s OPR profile of the last ten reports follows: PERIOD ENDING OVERALL EVALUATION 01 Aug 03 Training Report (TR) 01 May 04 Meet Standards (MS) 30 Sep 04 TR 01 May 05 MS 01 May 06 MS #01 Jul 06 Referral Report 31 Jul 07 MS 01 Sep 08 MS 25 Jun 09 MS 12 May 10 MS # Contested Report at the time he was considered and nonselected for promotion by the CY07B and subsequent Lieutenant Colonel CSBs. The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSID recommends denial of his request to correct/remove the OPR, stating, in part, that the applicant has not proven that the contested report or PRFs are inaccurate or unjust. The applicant did not file an appeal through the Evaluation Report Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports, 10 Mar 06 due to the applicant no longer being on active duty; however, the ERAB reviewed this case and determined there was no evidence that the case was unjust or inaccurate. They note the applicant does not provide a substitute report. When an evaluator supports changing ratings, all subsequent evaluators (including the Management Level Review Board President on Promotion Recommendation Forms) must also agree to the changes. The willingness of evaluators to change a report is not enough. You must offer clear evidence that the original evaluation was unjust or wrong. Quality, not quantity of documentation is the issue. The most effective evidence consists of statements from the evaluators who signed the report or from other individuals in the rating chain when the report was signed. The applicant is also requesting to update his Promotion Recommendation Forms (PRFs), but he has not provided a substitute report. Paragraph 1.3.7, states the board will not consider nor approve requests to reaccomplish a report without the applicant furnishing the new report. The applicant is also requesting removal of the 31 Jul 06 report if it cannot be corrected. However, the applicant could have provided this evidence when the referral report was given to him as he had the opportunity to rebut any derogatory comments. In addition, the additional rater states on the OPR that he carefully considered the applicants comments. The applicant provided several character witness statements; however, he does not provide one from the rating chain supporting his case. In addition, the witness statements he does provide seem to support the referral OPR. In addition, in a rebuttal memorandum dated 2 Apr 07, the applicant has provided evidence that supports the referral report stating that it is true that these intelligence collection activities were in technical violation of the SOP. Although he is contesting the referral OPR, the evidence the applicant provided is actually supporting the referral report. Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record. To effectively challenge an OPR, 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 failed to provide any information or support from the rating chain on the contested OPR. In the absence of information from evaluators, official substantiation of error or injustice from the Inspector General (SAF/IG) or Military Equal Opportunity is appropriate. In this case, the applicant provided a memorandum from the IG dated 4 Aug 09 which stated that upon their office reviewing the applicant’s complaint along with his abundant documentation, they were unable to develop any evidence of a violation of law, standard or regulation to support allegations of wrong doing against the former U.S. Defense Attaché, U.S. Embassy, Beijing, China. DPSID concurs with the IG's decision and also finds no evidence of violations and does not support allegations of wrong doing. It appears the reports were accomplished in direct accordance with applicable Air Force regulations. The applicant stated in a memorandum, dated 1 Nov 10 that no feedback transpired and that the only feedback accomplished was by the previous supervisor on 28 Jan 04. He provides copies of the feedback forms; however, the applicant does not provide any evidence from the rating chain stating that feedback did not occur. Although the applicant feels that feedback was not given during the reporting period, it does not mean that feedback was not accomplished, but may have not been formally documented. The governing directive states that only members in the rating chain can confirm if counseling was provided. While current Air Force policy requires performance feedback for personnel, a direct correlation between information provided during feedback sessions and the assessments on evaluation reports does not necessarily exist. The lack of counseling or feedback, by itself, is not sufficient to challenge the accuracy or justness of a report. The applicant stated that he has supporting documents classified as "Secret" which took place during the reporting period; however, we are unable to use these documents to base a decision due to the classification level. We contend the burden of proof is on the applicant to provide evidence that can be used in any appeal case. The applicant stated in a memorandum dated 22 Jul 09, that he successfully accomplished the mission as outlined by the senior leadership; however, ultimately this led to his unilateral non- judicial punishment pertaining to disagreements over this uniquely subjective, senior officer-provided guidance. The applicant further states that he has continued to be plagued, by what he considers to be unprofessional practices, by stating that upon arriving at his new duty station at the Defense Language Institute in Aug 06, he was informed that his previous supervisor had pre-notified his new supervisor that a so called "incident" had occurred while he served in China, tainting his new chain of command; however the applicant does not provide evidence from the rating chain or MEO confirming that this notification occurred or that it took place during the contested reporting period. An evaluation report is considered to represent the rating chain's best judgment at the time it is rendered. We contend that once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual's record. He has not substantiated the contested report was not rendered in good faith by all evaluators based on knowledge available at the time. The complete AFPC/DPSID evaluation is at Exhibit C. AFPC/DPSOO recommends denial for SSB consideration or direct promotion to the grade of lieutenant colonel with a 1 May 06 promotion effective date. They base their determination on the recommendation by AFPC/DPSID to deny correction or removal of the applicant’s 31 Jul 06 report. In addition, they note that although the 31 Jul 06 OPR should have been filed in the applicant's Officer Selection Record (OSR) by 29 Sep 06, the rater did not sign the report unti1 26 Feb 07, additional rater on 12 Apr 07, the reviewer on 20 Apr 07, and the Air Force Advisor on 20 Apr 07. As such, since all of the signature dates of the evaluators' are after the P0505A, P0506A, and P0506C CSBs the contested report could not have been filed in his OSR for these boards. The P0507B CSB that convened on 27 Nov 07 is the first board that considered the 31 Jul 06 OPR in the promotion process. They note that DPSID’s evaluation addresses the correction or the removal of the 31 Jul 06 OPR. They state that an evaluation report is considered to represent the rating chain's best judgment at the time it is rendered. They contend that once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual's record. The burden of proof is on the applicant and the applicant has not substantiated the contested report or PRFs are inaccurate or unjust. The applicant is requesting back pay associated with promotion to lieutenant colonel from 1 May 06. Had he been promoted by the CY05A Board, his date of rank and effective date would have been 1 Sep 06. Although not directly requested, DPSOO does not support direct promotion to lieutenant colonel. The complete AFPC/DPSOO evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant notes that the crux of his case is based on the review of the classified documents that were originally submitted to the Board and believes without these documents, he cannot receive a fair and unbiased review. The non-event as expressed in the advisory opinion is not articulated for the Board nor has the supposed violation of the SOP ever been explicitly spelled out; no paraphrasing, no chapter, paragraph, or sub-paragraph was referenced by the rating chain at any time. He also notes that even after a review by SAF/IGS, they found no apparent violation of the law, standard or regulation, because he was ordered to conduct operations and did so without incident. DPSOO’s contention that his package is untimely omits the fact that the OPR in question did not become a matter of record until 13 Nov 07—470 days after the closeout date. However, once he became aware of the derogatory OPR he immediately started filing letters to two promotion boards, management level review board, as well as forwarding copies of the classified package to the Secretary of Defense and the Secretary of the Air Force. After being advised by the SAF/IG to forward his case to the AFBCMR, he did so at his first opportunity. His primary concern stems from the fact that strong evidence to the contrary has been provided in the SECRET classified portion of his case, but the evidence has been suppressed. DPSID has refused to review the classified documents. Given the unlikelihood of success on the merits (especially after suppressing the SECRET classified documents), he believes a recommendation to not excuse the delay is extremely harsh and unwarranted. Without a complete review of all the documents by the AFBMCR, it will appear that the Air Force’s sole intent is to sweep this poorly orchestrated matter under the rug and unfairly place the full burden on the member. In short, the applicant continues to explain the circumstances which subsequently led to the referral report (contested report) and does not believe a fair and unbiased review can be conducted without the classified documents. He does not believe the Air Force is in any way interested in reviewing this case in an objectively just manner and he appreciates the opportunity to bring these comments before the Board. The applicant’s complete response, with attachments, 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 available evidence of record and the documents provided in his behalf, including his response to the Air Force evaluations, in judging the merits of the case; however, we agree with the opinions and recommendation 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. We note the applicant submitted additional evidence that, because of the security classification, was not made available for the Board’s review. While the AFBMCR does have procedures to receive and review classified documents, it is the applicant’s responsibility to insure that any classified documentation is submitted in compliance with applicable security directives. Since the applicant requested consideration of his case continue without the classified material, we have made our determination based on the evidence before us. However, should the applicant submit the documentation he references is essential to the review of his case in the proper manner, we would be inclined to reconsider his appeal. Accordingly, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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-2010-04199 in Executive Session on 13 October 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 1 Nov 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 31 May 11. Exhibit D. Letter, AFPC/DPSOO, dated 22 Jun 11. Exhibit E. Letter, AFBCMR, dated 31 Aug 11. Exhibit F. Letter, Applicant, dated 4 Oct 11, w/atchs.