RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02494 COUNSEL: NONE INDICATED HEARING DESIRED: YES APPLICANT REQUESTS THAT: His AF Form 707, Officer Performance Report (OPR) (Lt thru Col), rendered for the period 16 Feb 10 thru 30 Sep 10, be declared void and removed from his record. His corrected record reflect his promotion to captain, effective 1 Aug 10. APPLICANT CONTENDS THAT: His referral OPR erroneously asserts that he was non-deployable based on the misinterpretation of a California court ruling that he was restricted from worldwide deployment for a period of two years. However, he has a certified court transcript specifically substantiating he was worldwide deployable. While his probation order indicates he should not own or possess a firearm, this was never intended to preclude him from bearing arms in the performance of his official military duties. The issuing judge officially went on the record to clarify his restriction to possess a firearm as a private resident of California, but not in the capacity which would affect his military duties to be worldwide deployable. His delayed promotion from 17 Feb 10 until 1 Aug 10, to the grade of captain, was revoked and his name was unjustly removed from the promotion list. Although, his squadron commander and senior leadership outlined a path allowing him to fully recover and advance to the next higher grade, his subsequent leadership later determined that he should have no such recovery. The foundation of his new leadership’s objection was that he was non-deployable; however, this was not the case. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant’s military personnel records indicate he was commissioned in the Regular Air Force on 17 Feb 06. According to AFPC/DPSOO, the applicant was selected for promotion by the Calendar Year 2009A (CY09A) Quarterly Captain Selection Process with a projected date of rank (DOR), effective 17 Feb 10. According to AFPC/DPSOO, on 8 Jan 10, an AF Form 4363, Record of Promotion Propriety Action (PPA), was initiated by the applicant’s commander, notifying him of her intent to delay his promotion until 1 Aug 10. Specially, the applicant was involved in an incident on 6 Nov 09, resulting in felony charges being filed against him for willfully discharging a firearm in a grossly negligent manner and misdemeanor charges for the exhibition of a deadly weapon in the presence of another. On 15 Jan 10, the PPA was approved by the wing commander. On 9 Jun 10, the applicant pled no contest to a misdemeanor charge of discharging a firearm in a grossly negligent manner and was sentenced to two years of unsupervised probation which prevented him from owning or possessing any firearm. On 6 Jul 10, a PPA, was initiated by the applicant’s wing commander, notifying him of his intent to remove his name from the promotion list due to his failure to exhibit exemplary conduct or for cause to believe that he is not mentally, physically, morally, or professionally qualified to perform the duties of the next higher grade. Specifically, this action was taken in response to the incident the applicant was involved in on 6 Nov 09, his plea of no contest and subsequent sentencing. On 8 Jul 10, the applicant acknowledge receipt of the PPA. On 14 Jul 10, the applicant elected to consult with a legal counsel and to submit a written statement. On 16 Jul 10, the applicant’s commander considered his response and recommended his removal from the promotion list. On 31 Aug 10, the PPA was found to be legally sufficient. On 3 Sep 10, the Secretary of the Air Force approved the applicant’s removal from the promotion list. On 12 Oct 10, the contested OPR was referred to the applicant by his flight commander, due to a rating and comment that during the reporting period he became non-deployable due to a State of California imposed probation order resulting from illegally discharging a firearm. In addition, the 24-month probation order specifically prohibited him from owing or possessing a firearm, and under order he could not be issued a firearm by the Air Force. On 22 Oct 10, the applicant provided a statement on his own behalf in regards to the referral report. Specifically, he refuted the determination that he was unable to deploy. He further indicated that he was involved in a “victimless crime” and was only restricted from firearm usage outside his employment in the military. On 22 Oct 10, the applicant’s squadron commander considered his response and determined to uphold the referral OPR. On 5 Nov 10, the applicant’s wing commander concurred with the referral OPR. On 11 Jan 11, the applicant acknowledged receipt On 27 Mar 11, the applicant was furnished an honorable discharge, with a narrative reason for separation of “Completion of Required Active Service,” along with separation code of “FBK” and RE code of “Not Applicable”. He was credited with 5 years, 1 month, and 11 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 (OPR), which are attached at Exhibits C, D, and E. AIR FORCE EVALUATION: AFPC/DPSID recommends denial, indicating there is no evidence of an error or injustice with respect to the applicant’s contested OPR. Based on the lack of corroborating evidence, the applicant’s OPR should not be voided from his records. The incident in which the applicant illegally discharged a personal firearm triggered a series of actions, to include recurring mental health evaluations and treatments, and the pending outcome of a criminal court case regarding his participation in the firearm discharge incident. We contend these factors contributed to his status during the contested rating period to be non-deployable, as determined by the proper military authorities. In addition, it is clear from the evidence that the civilian court considered his deployable status as a military matter during the proceedings. The applicant has provided no evidence from any military authorities to establish that he was eligible to carry a firearm in the performance of his military duties during the period of his contested OPR and was in fact deployable. The unit commander has the authority to place the applicant on a “Do Not Arm” listing; however this cannot be confirmed if this was the case, but is more likely given the circumstances. In addition, the unit commander is an evaluator on the contested OPR and would have known whether the applicant was deployable or non-deployable. The burden of proof is on the applicant, and he has, in our opinion failed to make a successful case which would refute the validity of the referral comment on the contested OPR. He instead chooses to focus on the opinion and rulings of civil authorities which in any case would not have jurisdiction to decide such matters. Furthermore, an evaluation report is considered to represent the rating chain’s best judgment at the time it is rendered. Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record. In order to effectively challenge an evaluation, 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 not provided any substantiating evidence to prove his assertions that the report was rendered unfairly or unjustly, and has merely provided only his view of events as he believes them to be true and has provided evidence from a civilian court which has no jurisdiction concerning official Air Force matters. The applicant has conspicuously failed to provide any information/support from neither any rating officials on the contested evaluation or any substantiated evidence from credible authorities to establish his deployment availability during the contested rating period. 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. It is therefore determined that the report was accomplished in accordance with applicable Air Force regulations, policies and procedures. The applicant did not have an opportunity to file an appeal through the Evaluation Report Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports, due to his transfer from active duty to the Reserves. A complete copy of the AFPC/DPSID evaluation is at Exhibit C. AFPC/DPSOO recommends denial with respect to the applicant’s request for his promotion to captain with a date of rank of 1 Aug 10. The applicant contends as a result of his referral OPR, he was removed from the captain’s promotion list. In this case, the applicant was selected for promotion and had a projected date of rank (DOR) of 17 Feb 10. However, on 8 Jan 10, his commander recommended his promotion be delayed until 1 Aug 10. The specific reason for this action was due to the District Attorney’s office filing felony charges against the applicant for willfully discharging a firearm in a grossly negligent manner and misdemeanor charges for exhibition of a deadly weapon in the presence of another. The delay was approved on 15 Jan 10. On 6 Jul 10, the wing commander recommended the applicant’s name be removed from the promotion list. The specific reason for this action was the same action that resulted in his promotion delay. There was no indication in the removal action that the applicant was non-deployable due to a California probation order. On 31 Aug 10, the Secretary of the Air Force approved his removal from the CY09A captain promotion list. Promotion is not a reward for past service. It is advancement to a position of greater responsibility based on the requirements of the Air Force and the officer’s future potential. If an officer has not met the requirement for exemplary conduct set forth in Title 10 United States Code (U.S.C.) Section 88583 or is not mentally, physically, morally, or professionally qualified to perform the duties in the next higher grade, it is in the best interest of the Air Force for the proper authority to initiate action to delay promotion, to find an officer not qualified for promotion, or to remove the officer from a promotion list. A complete copy of the AFPC/DPSOO evaluation is at Exhibit D. AFPC/JA recommends denial and concurs with the conclusions and recommendations reached in the AFPC/DPSID and AFPC/DPSOO advisories, indicating there is enough evidence to show that the applicant has not met the exemplary conduct requirement or qualified to perform duties as a captain. The evidence, taken as a whole, does not support the applicant’s position. Significantly, the applicant’s rating chain has not come out and said that the reason offered in the referral statement is inaccurate, or that the statement does not represent their assessment. More importantly, the applicant does not deny the misconduct that he committed in November 2009, which eventually led to a criminal conviction in civil court and a sentence to probation. The only evidence the applicant has provided that the statement in his referral OPR is untrue is from the transcript, in which the judge states that it is possible the applicant can possess a firearm in the performance of his military duties, but he should not be in possession in his private life or while residing in the United States. This courtroom banter does not constitute evidence of record, and it certainly does not prove that the statement that he was non-deployable is untrue. Moreover, the applicant has not provided any evidence from either the rater or additional rater in support of his challenge to the validity of the statement. As noted, by DPSID, Air Force policy is that an evaluation report is considered to be accurate as written when it becomes a matter of record. The applicant has failed to overcome that presumption. Furthermore, the applicant request that if his referral OPR is voided, he be promoted to captain with an effective pin-on date of 1 Aug 10. As noted by DPSOO, an officer can be removed from a promotion list when they have not met the requirement for exemplary conduct or are not mentally, physically, morally, or professionally qualified to perform the duties in the next higher grade. Even without the referral comment in the applicant’s OPR, he engaged in serious misconduct that led to felony and misdemeanor charges in California criminal court, and a misdemeanor conviction, and probation sentence. As such, his application should be denied. A complete copy of the AFPC/JA evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant rebuts the advisories and states that the certified court transcript shows that their ruling does not impact his ability to perform his job and/or deploy – nor was it intended to and this clearly invalidates the rationale for the referral OPR. He further argues that he attempted to obtain statements from his previous rating chain; however, everyone has retired except for his prior commander. Although his commander supports his AFBCMR application, he has been unable to obtain a statement from her due to her unavailability because of a recent transition to a new position. Nevertheless, his application provides sufficient details to understand the salient circumstances concerning the referral OPR and subsequent removal from the captain’s promotion list. He makes no excuses for his mistakes and holds himself accountable. A complete copy of the applicant’s response is at Exhibit G. 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 an error or injustice. The applicant's complete submission was thoroughly reviewed and his rebuttal comments were duly noted. However, the Board majority is not persuaded that the contested OPR should be removed. We note the applicant’s contention that his referral OPR and his promotion delay and subsequent removal from the captain’s promotion list erroneously relied on the fact that he was non-deployable based on the misinterpretation of a California court ruling. However, while the applicant may believe this is the case, we do not find this to be so. The applicant has not provided any evidence from either the rater or additional rater in support of his challenge to the validity of the alleged misinterpretation. Other than his own assertions, we have seen no evidence by the applicant that the evaluators abused their discretionary authority, that the report is technically flawed, or that the evaluators comments are based on inappropriate considerations. Additionally, evidence has not been presented which would lead us to believe that there were procedural errors resulting in an injustice or improprieties in the processing of his referral OPR and promotion propriety action or that he was denied rights to which he was entitled. Therefore, the Board majority adopts the opinions and recommendations of the Air Force offices of primary responsibility as the basis for our determination that he has not been the victim of an error or injustice. In the absence of persuasive evidence to the contrary, the Board majority finds no basis to recommend granting the relief sought in this application. 4.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to his reinstatement for promotion to captain effective 1 Aug 10. While the applicant believes his promotion to captain was unjustly revoked, we disagree. As noted by DPSOO, an officer can be removed from a promotion list when they have not met the requirement for exemplary conduct or are not mentally, physically, morally, or professionally qualified to perform the duties in the next higher grade. We believe that the promotion removal was proper and in compliance with the governing directives which implement the law. Therefore, favorable consideration is not possible. 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. RECOMMENDATION OF THE BOARD: The majority of the Board finds insufficient evidence of error or injustice and recommends the application be denied. The following members of the Board considered AFBCMR Docket Number BC-2012-02494 in Executive Session on 16 Sep 14, under the provisions of AFI 36-2603: Panel Chair Member Member By a unanimous vote the Board recommended denial to reinstate his promotion to captain effective 1 Aug 10. The majority voted to deny the OPR rendered for the period 16 Feb 10 thru 30 Sep 10. The minority member voted to grant the OPR removal and submitted a minority report which can be found at Exhibit H. The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-02494 was considered: Exhibit A.  DD Form 149, dated 8 Jun 12, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Letter, AFPC/DPSID, dated 14 Jul 12. Exhibit D.  Letter, AFPC/DPSOO, dated 21 Aug 12. Exhibit E.  Letter, AFPC/AFPC/JA, dated 5 Sep 12. Exhibit F.  Letter, SAF/MRBR, dated 11 Sep 12. Exhibit G.  Letter, Applicant, dated 16 Nov 12. Exhibit H.  Minority Report, dated 12 Nov 14.