RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04308 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Officer Performance Report (OPR) covering the period 2 Jul 08 through 4 Jun 09 and his In-the-Primary Zone (IPZ) Performance Recommendation Form (PRF) be declared void and removed from his records. 2. He be reinstated onto active duty at his last duty station. 3. He be directly promoted to the rank of lieutenant colonel (O-5), or his corrected records meet a special selection board (SSB) for the grade of 0-5 using his one year Below-the-Primary Zone (BPZ) PRF. ________________________________________________________________ APPLICANT CONTENDS THAT: While working for the Joint Improvised Explosive Device (IED) Defeat Organization (JIEDDO), he unjustly received a Letter of Reprimand (LOR) and an Unfavorable Information File (UIF), for a security violation associated with sharing his classified password with a civilian contractor with whom he worked. He was told by his superiors to allow a fellow contractor to share his own classified system password. The sharing of passwords was a sanctioned practice borne from operational necessity to ensure the completion of JIEDDO’s vital mission in the face of extremely limited resources. He took and passed a polygraph test confirming his supervisors knew about and condoned his password sharing. However, in the aftermath of a critical Government Accountability Office (GAO) investigation into his organization, he was painted as a scapegoat and his leadership targeted him to deflect blame and punished him inappropriately. Furthermore, the LOR is based upon his not following an Army Regulation (AR 25-2, Information Assurance), that was later determined not to apply; and a contractors’ Information System Security Briefing (ISSB) that, although he signed it, did not apply to him. Further, the Air Force Central Adjudication Facility (AFCAF) reviewed his case and fully reinstated his security clearance. The unjustified LOR resulted in his receiving the contested referral OPR, which is incorrect because it was referred for his receiving an “LOR for a security violation.” However, JIEDDO/JA determined no lawful order or punitive regulation had been violated. There was no security violation. Finally, a senior Air Force official completed an independent review of his case and concluded “the incident was baseless.” As a result of the LOR and referral OPR, he was given a “Do Not Promote” promotion recommendation, he was twice non-selected for promotion and ultimately forced to separate due to force shaping. In support of his appeal, the applicant provides copies of an expanded statement from his counsel, an excerpt from AFMAN 33- 223, Identification and Authorization, four GAO Reports, a JIEDDO Organization and Functions Guide, excerpts from his military personnel records, and other documentation related to his case. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to the applicant’s military personnel records, he served in the Regular Air Force in the grade of major (O-4) during the matter under review. On 21 May 09, the applicant received a LOR with a UIF for violating security regulations and for being derelict in performance of his duties. The basis of this action was that an investigation revealed that he knowingly permitted a civilian contractor to have access to his Joint Worldwide Intelligence Communications System (JWICS) account and password to carry out non-delegable duties which he was assigned. According to information provided by the applicant, he submitted a response on 28 May 09. On 13 Oct 09, the contested referral OPR, closing 4 Jun 09, was rendered upon the applicant. The OPR was referred as it indicated a rating of “Does Not Meet Standards” and contained remarks related to the applicant’s violation of security regulations for which he received an LOR. On 30 Oct 09, the applicant submitted a rebuttal to the referral OPR citing similar contentions to the matter under review. According to information provided by AFPC/DPSOO, the applicant was considered, but not selected, for promotion to the grade of lieutenant colonel by the CY10A (P0510A) and CY11A (P0511A) Lieutenant Colonel Central Selection Boards (CSB). On 13 Jun 11, the applicant was notified of his nonselection for promotion by the CY11A Lieutenant Colonel CSB and the establishment of a 30 Nov 11 mandatory separation date (MSD) based on his being twice deferred for promotion. On 30 Nov 11, the applicant was honorably discharged with a narrative reason for separation of “Non-Selection, Permanent Promotion” and was credited with 15 years, 5 months, and 25 days of total active service. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility, which are included at Exhibits C, D, and E. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial of the applicant’s request to void and remove his referral OPR and his IPZ PRF. The applicant contends the referral comments within the EPR were wholly inaccurate as they reported on a security violation the applicant believes he did not commit. In support of his request, the applicant mainly provides his recollection and snippets of what appear to be text conversations with individuals. However, the documentation provided does not indicate the identity of these individuals and the applicant’s hand-written annotations do not qualify as proof of their identity. In view of the fact this was the applicant’s only attempt to provide independent confirmation of this crucial aspect of his case, all of his claims that he was told to perform an illegal activity by his supervisors are unsubstantiated. Furthermore, the applicant did in fact sign an Information System Security Briefing (ISSB) that explicitly stated in several ways that it was prohibited for him to share or disclose his personal system password. In addition, his request to void and remove his PRF is unwarranted, as it is an accurate picture of his career performance during that particular promotion zone. The applicant appears to have been appropriately dealt with for this security violation and its mention on the contested OPR was appropriate to the circumstances. Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record. The applicant failed to provide any information/support from the rating chain of record on the contested report. He has not substantiated the contested report was not rendered in good faith by all evaluators based on knowledge at the time. A complete copy of the AFPC/DPSID evaluation is at Exhibit C. AFPC/DPSOO recommends denial of the applicant’s request for direct promotion to lieutenant colonel or for SSB consideration to said grade using his BPZ PRF. This evaluation accepts and relies upon AFPC/DPSID’s recommendation to deny his request to void and remove his referral OPR and PRF. Although the officer may be qualified for promotion, he may not be the best qualified of other eligible officers competing for the limited number of promotion vacancies in the judgment of a selection board. Therefore, to grant a direct promotion would be unfair to all other officers who have extremely competitive records but did not get promoted. Additionally, as no changes have been made to the applicant’s record, we recommend denial of SSB consideration. A complete copy of the AFPC/DPSOO evaluation is at Exhibit D. AFPC/JA recommends denial, indicating there is no evidence of an error or injustice. The allegation of wrongdoing contained in the LOR refers to an incident in which the applicant violated security regulations and was derelict in the performance of his duties by permitting a civilian contractor to use his computer account and password to carry-out his non-delegable duties, and that his behavior violated the JIEDDO ISSB, which he acknowledged on 28 Aug 08, and AR 25-2. The evidence of record shows he did sign an acknowledgement of the ISSB brief, which explicitly prohibits sharing or disclosing of passwords. The fact he signed and dated this briefing establishes that he understood and acknowledged his responsibilities with regard to password/account sharing, and this evidence alone is enough to support an LOR. In addition, Attachment 7 to AR 25-2, the regulation then in use by JIEDDO, similarly prohibited the sharing of passwords. The applicant has offered no evidence that JIEDDO, a DoD Organization, ever adopted an Air Force manual to govern its security policy. On the contrary, JIEDDO relied on a very specific security briefing given to each member of the organization stating that password/account sharing was prohibited. Although the applicant has included in the file the aforementioned e-mail “snippets” suggesting that “JA” personnel found the listed Army regulation was not applicable in this case, those excerpts (one coming from the Area Defense Counsel) constitute nothing more than hearsay statements of others; there is no statement or legal review from any JA representative who may have performed an actual legal review. Even assuming arguendo that a JA review had found the Army regulation to be inapplicable, that regulation is not necessary to support the allegation of wrongdoing in the LOR. The applicant’s counsel goes even further and makes a broad assertion (Brief, page 4) that “despite judge advocate determinations which completely cleared him of the alleged wrongdoing,” the applicant received the LOR and referral OPR. Quite obviously, there is no evidence in the file to support the assertion. The applicant also challenges the LOR and OPR on the basis that his superiors knew of the violation and condoned it, that the overall circumstances and need to get the mission accomplished required it, and that he was made the scapegoat of what were organizational problems that went far beyond his actions. In our view, the applicant has failed to establish any of those contentions by a preponderance of the evidence. His polygraph test only proves that he believed that his supervisory chain knew and approved of his password sharing, not that is was in fact true. Counsel also offers a purported statement from the applicant’s direct supervisor that indicates she was aware of the applicant’s password sharing and had no concern with it. First, the statement in question has a redacted name; it has not been authenticated as genuinely representing the statement of this or any person. Even if it is what the applicant’s counsel purports it to be, it does not prove that his supervisor approved his actions. On the contrary, the author of the statement clearly states the use of the applicant’s password by the contractor “was completely wrong” and she “could not support it.” The Investigation Officer (IO) makes it clear the applicant failed to provide proper supervision with regard to the contractor’s unauthorized computer account use and essentially allowed a contractor to perform his assigned DASO duties by default: “his unfulfilled requests for an alternate DASO and his dissatisfaction with initial DASO training did not absolve him of his DASO duty requirements,” and he knew the procedures he was using were not permitted under the governing regulations. The evidence of record fully supports the adverse actions taken against the applicant, who failed to prove any error or injustice in his case. A complete copy of the AFPC/JA evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The comments and recommendations contained in the advisories are based on an alleged security violation addressed in the LOR, which misses an important point - the LOR was for violation of AR 25-2 and the same official who gave him the LOR later conceded the regulation did not apply. This is not hearsay but an official e-mail bearing a date/time stamp. Further, the advisories opine that his signing a non-binding, contractor ISSB form in some way outweighs Air Force regulations that he was verbally ordered to follow. There is no proof the ISSB was used by JIEDDO as a binding form. Both JIEDDO/JA and AFCAF determined this form did not apply to him despite his signature, which was accomplished to placate contractor requirements for their company. The Air Force made a definitive determination that he did not violate security regulations or procedures. Additionally, the Director of Staff for Air Force Reserve Command, after carefully studying his record and this allegation, found the incident baseless and recommended him for a position in the Reserves. The advisories suggest that his proof is questionable. However, the statements in question were drawn from the original command-directed investigation. Fair play dictates recognition of how difficult it is for him to obtain statements from his superiors, when the GAO was coming down hard on his leadership. They would risk their own livelihood by admitting they sanctioned his actions. The referral OPR states he received an LOR for “Violation of Security Regulations.” This is simply not so. A complete copy of the applicant’s response, with attachments, is at Exhibit G. The applicant’s counsel also submitted an independent rebuttal stating, in part, the knowledgeable decision makers—JIEDDO/JA and AFCAS—ruled that: [a] there was no dereliction; and [b] the applicant did NOT violate security regulations. The signing Staff Judge Advocate at JIEDDO was a JAG Major General serving as a GS-15. The applicant was working in a contractor building on a contractor computer system—not at JIEDDO Headquarters. The contractor’s form in question governed contractors alone. Aside from the contractor’s form, there is no stand-alone violation of AR 25-2. He was charged with dereliction under Uniform Code of Military Justice (UCMJ) Article 92, failure to obey an order or regulation. However, no regulation was violated, as confirmed by AFCAF, the LOR Approval Authority, and JIEDDO/JA. A complete copy of the counsel’s response is at Exhibit H. The applicant’s counsel submitted an additional response reiterating his earlier points on 11 Jun 12. A complete copy of the additional counsel’s response is at Exhibit I. ________________________________________________________________ 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 an error or injustice to warrant removal of the contested LOR, OPR, and PRF from the applicant’s records; providing his corrected record promotion consideration to the grade of lieutenant colonel by a Special Selection Board (SSB); and if selected, retroactively reinstating him to active duty. After a thorough review of the evidence of record and the applicant’s complete submission, we believe a preponderance of the evidence establishes sufficient doubt as to the propriety of the contested Letter of Reprimand (LOR) based on a number of mitigating factors. In this respect, we note that the following: a. At the time of the alleged incident resulting in the applicant’s receipt of the contested LOR, the applicant was assigned to the JIEDDO, composed of military, government civilian, and contractor personnel. JIEDDO’s unique and critical mission in support of the war on terror, is to attack the network line of operations enabling offense operations against complex networks of financiers, improvised explosive device (IED) manufacturers, trainers, and their supporting infrastructure by providing real-time intelligence surveillance, reconnaissance, information operations, counter-bomber targeting, biometrics and weapons technical intelligence capabilities in support of service members deployed in Iraq and Afghanistan1. The applicant’s organization of assignment within JIEDDO, i.e., the Counter IED Operations Integration Center (COIC), was responsible for providing real-time data mining of various highly-restricted inter-governmental and non-military sources for immediate dispatch of usable intelligence data to service members fighting the war on terror. b. While the applicant acknowledged the prohibition against the sharing of passwords when he initialed the Information System Security Briefing (ISSB), JIEDDO/JA and the Air Force Central Adjudication Facility later determined the form did not apply to him despite his signature, since it was a contractor form produced to placate the Defense contracting company. c. Sufficient evidence has been presented to convince us the sharing of passwords with contractors was condoned by the applicant’s leadership and that such activities continued unabated for an extended period in an effort to meet the demanding organizational mission; specifically, to combat the escalating number of US casualties due to IEDs responsible for over 60 percent of all American combat casualties in Iraq and 50 percent of combat casualties in Afghanistan2. We also believe this is further substantiated by fact that he successfully passed a polygraph test, indicating “no deception” regarding the issue of whether his leadership was aware of and condoned the practice of password sharing with contractors. d. We find it unjust the applicant was singled-out for punishment, when clearly there was an atmosphere of noncompliance in an effort to ensure the mission was accomplished and performance objectives were achieved. The General Accounting Office (GAO) confirmed that JIEDDO had staffed contract personnel in positions of key governmental responsibility and relied too heavily upon a civilian contractor workforce. As such, the sharing of classified passwords with civilian contractors was necessitated due to disparate manning levels between contractors and government civilian/military personnel and the insufficient number of government civilian/military personnel possessing the required skills and level of experience. Specifically, of the 1,000 personnel assigned to COIC only 22 were military or DoD civilian personnel. In view of this, we find it readily apparent these 1 Ref, Congressional Research Service Report for Congress, Improvised Explosive Devices (IEDs) in Iraq and Afghanistan: Effects and Countermeasures, dated August 28, 2007. 2 Ref, DoD Personnel and Military Casualty Statistics, Defense Manpower Data Center, Casualty Summary by Reason October 7, 2001 through August 18, 2007. systemic government-manning deficiencies were the driving force behind such un-orthodox actions being taken in order to “cut through red tape” in order to accomplish the mission of saving American lives in warzones. e. The incident did not result in any breach of security. The investigation conducted in accordance with Army Regulation 15-6, Procedures for Investigating Officers and Boards of Officers, determined a Sensitive Compartmented Information (SCI) compromise was improbable and there was no evidence that any had occurred, as both the applicant and the subject contractor had valid Top Secret SCI clearances and access to the Joint Worldwide Intelligence Community System (JWICS). More importantly, the investigation noted there was no evidence the contractor utilized the applicant’s JWICS account for any reason other than the transmission of unclassified e-mails concerning Defense Intelligence Information System Automated Security Officer (DASO) account access requests. We also recognize the contractor with whom the applicant shared his classified password was a highly-skilled, former Defense Intelligence Agency (DIA) employee, who had previously performed the applicant’s additional duty as the DASO prior to the applicant’s arrival and was a trusted-agent with legitimate access to DIA databases and close-hold government inter-agency computer programs. f. The applicant’s actions were taken in the interest of ensuring the continued operation of COIC and accomplishment of its mission objectives. Based on the evidence before us, it is apparent that upon the applicant’s assignment of the additional duty of DASO, a duty for which he had not received the necessary training, he requested formal DASO training from DIA and was told that it did not exist and was instructed by his leadership to seek-out the assistance of the subject contractor, as the organization’s “go to” for DASO. Moreover, it appears that he was led to believe that another government representative had been appointed as the DASO during his Temporary Duty to the United Kingdom. Despite the fact the password breach was brought to his leadership’s attention in July 2008 and numerous times thereafter, it was not until April 2009 that any issue with the practice arose. g. In view of the above and given the mitigating factors in this case, we believe the interest of justice can best be served by removing the contested LOR and any reference thereto from his records. Furthermore, inasmuch as the LOR formed the basis of the subsequent referral OPR and Promotion Recommendation Form (PRF), we recommend they also be removed from his records and that his corrected record be considered for promotion to the grade of lieutenant colonel by an SSB for the CY10A CSB and if necessary, the CY11A CSB, and if selected, that he be retroactively reinstated to active duty, effective 30 November 2011. In arriving at our decision, we are keenly aware the courts have held that correction boards have an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and take the appropriate steps to grant full and fitting relief. We believe the recommended corrections to the applicant’s records will provide him such full and fitting relief. 4. Notwithstanding the above, we find no evidence to warrant his direct promotion through the correction of records process. In this respect, the Board observes that officers compete for promotion under the whole person concept whereby many factors are carefully assessed by selection boards. An officer may be qualified for promotion but, in the judgment of a selection board vested with the discretionary authority to make the selections, may not be the best qualified of those available for the limited number of promotion vacancies. Therefore, in the absence of evidence that he would have been a selectee had his folder reflected the recommended change, we believe that a duly constituted selection board, applying the complete promotion criteria, is in the most advantageous position to render this vital determination, and that its prerogative to do so should only be usurped under extraordinary circumstances. Therefore, we believe affording the applicant SSB consideration for the contested promotion boards represents full and fitting relief in this case. Should the applicant be selected for promotion, his records should be corrected to reflect that he was not released from active duty due to being twice deferred for promotion, but continued to serve on active duty. 5. 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 to show that: a. Any and all references to his Letter of Reprimand, dated 21 May 09, and associated Unfavorable Information File, be declared void and removed from his record. b. His referral AF Form 707, Officer Performance Report, rendered for the period 2 Jul 08 through 4 Jun 09, be declared void and removed from his record. c. His AF Form 709, Promotion Recommendation Report, prepared for the Calendar Year (CY) 2010A Lieutenant Colonel Central Selection Board (CSB), be declared void and removed from his record. It is further recommended that his corrected records be considered for promotion to the grade of lieutenant colonel by Special Selection Boards (SSB) for the CY 2010A and CY 2011A Lieutenant Colonel CSBs, and, if selected, his records be corrected to show that he was not released from active duty on 30 November 2011, but on that date he was retained on active duty. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-04308 in Executive Session on 12 Jul 12, 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 19 Oct 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 27 Feb 12. Exhibit D. Letter, AFPC/DPSOO, dated 23 Mar 12. Exhibit E. Letter, AFPC/JA, dated 11 Apr 12. Exhibit F. Letter, SAF/MRBR, dated 12 Apr 12. Exhibit G. Letter, Applicant, dated 18 May 12, w/atchs. Exhibit H. Letter, Counsel, dated 24 May 12. Exhibit I. Letter, Counsel, dated 11 Jun 12.