RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03871 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His officer performance report (OPR) for the period of 10 December 2002 through 9 December 2003, be voided and removed from his record. 2. His date of rank (DOR) of promotion to the grade of Lieutenant Colonel (Lt Col) be changed from 1 April 2006 to 1 April 2005. 3. His date of rank (DOR) of promotion to the grade of Colonel (Col) be changed from 1 October 2011 to 1 October 2010. 4. He be granted back pay and allowances for the adjusted DORs. 5. He be granted any other benefits or entitlements that would have accrued with promotion on the CY04B Lt Col board and promotion on the in-the-zone Colonel board. 6. His retirement grade be adjusted to reflect the grade of Colonel, O-6. 7. His retirement pay and allowances be adjusted to account for the corrected dates of rank. ________________________________________________________________ APPLICANT CONTENDS THAT: One of his OPRs contains two factual errors and his rater engaged in reprisal. As the top OPR for his Lieutenant Colonel Central Selection Board, the reprisal and OPR had an unjust impact and caused his non-selection for promotion. 1. The reprisal consisted of both adverse personnel action and written OPR comments indicative of poor performance. 2. The Squadron Director of Operations (DO) asked him to write and sign an OPR for someone he did not know and for whom he did not have the required period of supervision. When he declined and utilized his chain of command to express his concerns, the DO took adverse personnel action by removing his supervisory responsibilities. a. Air Force Instruction (AFI) 36-2406, Officer and Enlisted Evaluation System, requires raters to have 120 days of supervision in order to write an OPR. It had been less than 30 days since the DO designated him as the member's rater. After reading the AFI and consulting with military personnel flight, he informed the DO he did not have the required days of supervision and he did not know the member he was asked to report on, therefore, he could not sign the OPR. b. In response, the DO sent an email to everyone in the unit with a subject line entitled “Hammer Time!!” The DO said it was not acceptable for anyone to refuse to write an OPR regardless of whether they knew the ratee or not. The DO further stated: (1). “I don't know this person” will not be accepted as an excuse. (2). “There is no time like the present to get to know your fellow man.” (3) “Let's face it, given good inputs, you can write on anyone and make it look good.” 4. This guidance was contrary to AFI 36-2406. He contacted his unit commander to express his concerns. In reprisal, the DO removed his supervisory responsibilities. a. Utilization of his chain of command is a protected communication per AFI 90-301, Inspector General Complaints Resolution. The loss of supervisory responsibilities constituted adverse personnel action as defined in DoDD 7050.06, Military Whistle Blower Protection. This loss was a significant change in duties, and it relieved him of responsibilities that were consistent with his grade and duty position. b. After he made the protected communication the 15 Nov 03, records show the reprisal in that he no longer supervised any officers. c. His subsequent OPR was unjust. As the Chief of Weapons and Tactics, section III, “Job Description”, Item 2 “Key Duties” did not reflect supervision of personnel as would be expected of his rank and duty position. The OPR had an unjust impact and caused a non-selection. 5. In addition to making a protected communication to his chain of command, he also made a protected communication to the Inspector General (IG) regarding the squadron leave policy. a. As a deployed Expeditionary Squadron Commander, he learned of a unit policy that prohibited members from taking leave following return from deployments and compensatory time off. Specifically, the Squadron Commander implemented a policy that prohibited members from being on leave from the unit for more than 14 days. AFI 36-3003, Military Leave Program, states in part, “Give members the opportunity to take at least one leave period of 14 consecutive days or more every fiscal year (FY).” He thought the squadron policy deviated from the AFI guidance, so he inquired about the policy. b. In response to his query, the DO explained the rationale for the policy in an email in which he stated he would not sign off on the idea that members take their comp time and then follow that with leave. In his mind, that was double dipping. c. Following the DO email, he contacted the Squadron Commander. The commander said this was also his policy, and he added that he personally believed it sent a message that members aren't important in the unit if they are allowed to be gone for more than 14 days. Since members were permitted compensatory time following deployments, he would not let them go on leave afterwards even when members weren't needed for military necessity. d. Upon learning the Squadron DO denied leave for an enlisted member because of this 14-day policy and in violation of AFI 36-3003, He filed a third-party Inspector General Complaint on behalf of the enlisted member. (1). He obtained a copy of the IG case files through a Freedom of Information Act request. (2). The case files reflected the IG sent a letter regarding the complaint to his additional rater on 3 Feb 04. (3). The letter had sufficient details to identify him as the complainant. (4). His rater signed his OPR three weeks after learning of the IG complaint. 6. Professional Military Education courses teach members that the first and last lines of rater comments on an OPR are considered to be the most important. On his 9 Dec 2003 OPR, the rater leads off his last line with "Outstanding professional.” The additional rater follows in his first line with “Outstanding results-oriented professional with a capital “P.” The additional rater's last line also included the comments "Top all-around officer” and “excels in all tasks.” While these phrases had positive words, they were notably absent of any stratification and conveyed poor performance. 7. As a graduated Squadron Commander and Deputy Group Commander, his primary duties included reviewing OPRs and providing feedback/counseling regarding reports to the 12 Squadron Commanders in his Group. He also wrote, reviewed, or edited all of the Group’s promotion recommendation forms (PRFs) for the officers who were meeting promotion boards for Major, Lieutenant Colonel, and Colonel. Having written or reviewed hundreds of OPRs in this role, he could say from experience that an additional rater who uses no stratification and instead characterizes the officer as a "Top all-around officer" who "excels in all tasks" has clearly indicated the lowest performing officer. 8. Including language to indicate he was at the lowest levels of officer performance is unjust given the contrast to his documented performance throughout the reporting period. The non-selection for promotion is evidence of the impact and injustice resulting from the combination of reprisal and factual errors. 9. The subject OPR closed out on 9 Dec 2003 and erroneously showed 365 days of supervision in block 6. On 11 Dec 02, he was assigned to another squadron and was enrolled in two formal training courses. He remained in that squadron until May 2003. Although his training report cites 23 May 03 as the end of training, administrative issues with the permanent change of assignment (PCA) delayed his arrival to his current squadron by approximately 5 days. The PCA occurred 169 days into the reporting period. a. Three months after his arrival he received orders to deploy to a remote base in Pakistan. He departed on 2 Sep 03 and returned 102 days later on 13 Dec 03. During this extended temporary duty (TDY) he served as an Expeditionary Squadron Commander, and was supervised by and reported directly to the Expeditionary Operations Group Commander. b. The rater who signed the subject OPR remained at home station. The TDY was more than 30 consecutive days where he did not perform duties under the supervision of the rater, and the TDY was not normally part of his duties (such as those of an inspection team member as listed in the AFI), the 102 days of TDY should have been deducted from the supervisory period lAW AFI 36-2406. c. Records show the rater had a maximum of 94 days of supervision instead of the 365 days indicated on the subject OPR. Thus, the rater did not have the requisite 120 days of supervision to write his OPR. The OPR is factually incorrect and should be removed from his records. 10. The second factual error on his OPR relates to his distinguished graduate (DG) status from the Joint Firepower Course (JFC). The JFC recognized the top three graduates as DGs based upon academic merit. He contacted the JFC and found they did not identify the ranked order of the three distinguished graduates. The subject OPR erroneously lowered the stratification of his performance by indicating he was #3 out of 45. It was incorrect as it excluded that he finished the course as either #1 or #2 of 45 graduates. His sustained record of performance demonstrates he would have been selected during the CY04 board except for the reprisal. Additionally, he arguably would have received a “definitely promote” (DP) from his senior rater on the CY04 board. His CYO5 Promotion Recommendation Form (PRF) was written by the same senior rater and assigned a DP rating. Had his 2003 OPR not included factual errors or reprisal, his record would have been more competitive and he may have received a DP rating. As a minimum, his record did not receive fair consideration during the CY04 PRF process or the CY 04 selection board. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to documents extracted from his Military Personnel Record (MPR) the applicant is a former commissioned officer of the Regular Air Force. He retired on 1 May 2012 and was credited with 20 years, and 16 days of active service for retirement. On 25 January 2004, the applicant filed an IG complaint via an AF IMT 102, Inspector General Personal and Fraud, Waste and Abuse Complaint Registration, as a third party, on behalf of a member of his squadron. The complaint alleged improper leave denial. He alleged that the squadron DO violated the rights of the member by denying her right and entitlement to take leave under the provisions of AFI 36-3003. On 28 June 2004, the Nellis Air Force Base IG responded to the applicant that after a thorough review and analysis of his complaint, they determined the squadron leave issue was being handled correctly and the policy was in accordance with AFI 36- 3003. They informed the applicant that as his complaint concerned a third party issue, they could not address specific circumstances to him; however, the third party could pursue their individual issues directly with the IG. They advised the applicant if he personally experienced difficulty with any leave policies, to please feel free to contact them once again. They thanked him for submitting his concerns through the IG complaint channels. On 5 November 2008, the applicant filed an IG complaint (Exhibit C - WITHDRAWN) with the Secretary of the Air Force IG (SAF/IG) and presented numerous allegations against his squadron of assignment. The complexity of the complaints required two separate Major Command IG investigations. Headquarters Air Combat Command (ACC) and Headquarters Air Force Material Command (AFMC) IG offices independently investigated his complaints. a. The specific allegations considered by ACC/IG are as follows: (1. XXXXXXXXXX. NOT SUBSTANTIATED. (2). XXXXXXXXXX. SUBSTANTIATED. (3). XXXXXXXXXX. NOT SUBSTANTIATED. b. The specific allegations considered by AFMC/IG are as follows: (1). XXXXXXXXXX. NOT SUBSTANTIATED. (2). XXXXXXXXXX. NOT SUBSTANTIATED. (3). XXXXXXXXXX. NOT SUBSTANTIATED. (4). XXXXXXXXXX. NOT SUBSTANTIATED. (5). XXXXXXXXXX. NOT SUBSTANTIATED. (6). XXXXXXXXXX. NOT SUBSTANTIATED. (7). XXXXXXXXXX. NOT SUBSTANTIATED. (8). XXXXXXXXXX. NOT SUBSTANTIATED. (9). XXXXXXXXXX. NOT SUBSTANTIATED. (10). XXXXXXXXXX. NOT SUBSTANTIATED. c. On 22 December 2009, The Complaints Resolution Directorate, Office of The Inspector General, Secretary of the Air Force (SAF/IGQ) sent the applicant a letter which stated they reviewed the reports from ACC/IG and AFMC/IG and concurred with their findings. Command action was taken to remedy the one substantiated allegation and the matter was closed. d. The applicant appealed to SAF/IGQ and stated that ACC/IG only investigated three allegations and did not include his allegation of XXXXXXXXXX as well as the inclusion of subsequent information that was not available during the investigation. e. In their 23 March 2010, response, SAF/IGQ conveyed to the applicant that two independent commander-directed investigations (ACC and AFMC) reviewed all of his allegations and both independently came to the same conclusion. They reiterated the SAF/IGQ case closure letter (22 Dec 09), para 3, stated the allegation that XXXXXXXXXX was found to be not substantiated. f. It was their determination XXXXXXXXXX These findings also received a legal review which found the determination to be legally sufficient. Therefore, further investigation of XXXXXXXXXX was not warranted. They advised the applicant if he had additional information that was not available during the ACC and AFMC investigations, he could direct this information to the ACC/A8 Director and 303 Aeronautical Systems Wing, respectively, for reconsideration. They considered the appeal of this matter closed. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial of the applicant's request to remove the contested OPR. DPSID states they do not believe the applicant provided sufficient substantiating documentation or evidence to prove his allegation of two factual errors. One error being that the rater did not have the required minimum of 120 days of supervision to write the report and the second error being that he should have been ranked #1 or #2 graduate from the Joint Firepower Course, as opposed to #3 of 45 graduates as written on the contested OPR. a. Regarding the error that the rater did not have the required minimum of 120 days of supervision to write the report, the applicant provides as evidence his own words of the sequence of events which he believes should have been deducted from the 365 days of supervision. However, the applicant merely provides an Air Form 475, Education/Training Report which accounts for the applicant's absence while attending a formal course for a total of 12 weeks. The remainder of the 243 days appears to be valid as the applicant provided no proof that any additional days should have been deducted from the contested rating period. They were unable to determine the authenticity of the travel voucher, and without a copy of an official Contingency Exercise Deployment (CED) order, it is impossible to make a sound determination on the applicant's claim. b. Regarding the error that the applicant should have been ranked #1 or #2 graduate from the Joint Firepower Course, as opposed to #3 of 45 graduates as written on the contested OPR, the applicant provided absolutely no evidence that the ranking was incorrect. The applicant has merely provided his own personal opinions, unsupported allegations, and absolutely no proof that these events are accurate as described; as such, they dismiss this allegation and find it to be without merit. c. In addition, the applicant alleged that the rater engaged in reprisal action against him and removed him from supervisory responsibilities after he refused to write an OPR on a subordinate for which he did not have the required number of days of supervision as required per AFI 36-2406. Again, the applicant has provided no proof in this case to substantiate that the rater reprised against him or that he may have been removed from supervisory responsibilities for cause. The burden of proof is entirely on the applicant. d. The applicant claimed the contested OPR was inconsistent with his subsequently written OPR. AFI 36-2401, paragraph A1.5.2, states ratings are not erroneous or unjust because they are inconsistent with other ratings the applicant has received. In this case, they contend, the applicant's rating chain simply made a determination as to what was relevant information regarding the applicant's duty performance and promotion potential during this contested rating period and properly documented that performance on the contested OPR. It is also not up to the applicant to determine that a stratification comment should have been reported on this OPR, but rather it is the rating chain's responsibility to make that determination as inclusion of stratification comments are not mandatory for mention. The applicant did not provide proof that it was or was not the evaluators’ direct intentions in omitting stratification comments during this rating period. e. AFI 36-2401, Paragraph A1.3, states “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.” However, statements from all of the evaluators during the contested period are conspicuously absent. Without the benefit of these statements, they can only conclude that the OPR is accurate as written. Such evidence from the rating officials could have shed light on these matters; as such, they do not see any valid justification, as presented by the applicant, which would justify removal of this contested OPR from his permanent evaluation record. The applicant failed to provide any information or explanation from the rating chain of record on the contested evaluation f. In the absence of information from evaluators, official substantiation of an error or injustice from the Inspector General or Military Equal Opportunity & Treatment is appropriate, but not provided in this case. The applicant did provide what appears to be an official IG complaint; however, it pertained to resolved leave issues in which the applicant was made aware that the squadron leave was handled correctly; but there was nothing that addressed the reprisal action or indicated that any adverse personnel action was taken against the applicant. In consideration of the sum of evidence provided, there is no valid basis in which they could support removal of the OPR as written. The complete AFPC/DPSID evaluation is at Exhibit D. AFPC/DPSOO recommends denial. DPSOO states based on the evidence provided, they do not support a change to the applicant's dates of rank to the grades of Lt Colonel and Colonel. a. In Feb 05, the applicant requested his nonselection from the CY04B Lt Colonel board be removed and that he be allowed to meet the CY05A Lt Colonel board as an IPZ eligible. The applicant, at that time, contended that he had insufficient time on active duty to build a competitive record for promotion to Lt Colonel. He only had 18 months on active duty; the first 6 months were spent in training and the next 5 months on contingency TDY orders in addition to completing IDE via correspondence. Additionally, his unit had extensive home-based mission requirements and supported continuous combat flight operations with only two scheduled down days in the past two years. Due to training and deployments, he was unable to complete his advanced degree and was therefore, not competitive for promotion. At no time did the applicant mention the OPR that was on file for the board. The applicant's request was approved. b. Based on the applicant’s DOR to Lt Colonel, 1 Apr 06, he met the CY10C Colonel CSB which convened on 8 Nov 10. He was selected for promotion with a DOR of 1 Oct 11. c. The applicant voluntarily retired 1 May 12 prior to having the required three years time-in-grade to retire as a Colonel. Had the applicant been selected for promotion to Lt Colonel by the CY04B CSB and met the CY09D Colonel CSB as an IPZ eligible, his DOR to Colonel would have been 1 Sep 10. The applicant still would not have had sufficient time-in-grade to retire as a Colonel. The applicant felt the reason for his nonselection was due to having insufficient time to complete his advance degree and not his OPR and he was granted relief because of that reason. Since he was promoted to both Lt Colonel and Colonel with the OPR on file, there is no evidence that it caused his nonselection in 2004. The complete AFPC/DPSOO evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In his response, the applicant reiterated his contentions and indicated he considered the Air Force evaluations to be factually incorrect on certain points. a. He stated it was not reasonable for AFPC/DPSID to falsely state he failed to provide evidence. It was factually incorrect to repeatedly assert throughout the advisory opinion that he only provided as evidence his own words, he provided no proof, he merely provided his own personal opinions and he provided absolutely no evidence. Repeatedly and falsely stating that no evidence existed is unjust in that it might bias any reader into believing that he did not submit any evidence. He requests the Board review the submitted records for relevance, consistency with his assertions, and credibility toward the facts in question. b. Additionally, in an effort to characterize the effects of the injustice he suffered from the OPR, he asserted that he did not receive fair consideration during the PRF process due to the injustice. Specifically, he stated, “had his 2003 OPR not included factual errors or reprisal, his record would have been more competitive and he may have received a Definitely Promote rating.” It was not reasonable to conclude these statements constituted a request to alter the PRF. However, multiple comments, entire paragraphs, and the DPSID concluding recommendation centered on the erroneous foundation presuming he requested alteration of the PRF to a Definitely Promote rating. DPSID’s opinion groups the lack of evidence relating to PRF changes and summarizes them as applying to the request to void the subject OPR as well. Thus, the entire content of the DPSID recommendation paragraph is misleading and might unfairly bias the Board when considering the merits of the application. c. DPSOO's opinion appears to be based, at least in part, on the erroneous belief that he had previously argued in the 2005 appeal that his record was not competitive. Had he actually argued as such, their opinion might be valid, however, the evidence submitted substantiated that was not the case. He strongly argued the competitiveness of his record. This should not preclude the Board considering the requested remedy on his current appeal. d. It is difficult for him to fully describe the entire set of circumstances in existence in 2005 that prevented him from pursuing an IG complaint of reprisal in order to contest the OPR at the time. If the Board feels this matter is relevant, he would ask for an opportunity to appear before the Board to interactively examine the facts, circumstances, and his perceptions in order to determine if the course he took was reasonable given the situation. Circumstances led him to believe the pursuit of corrective action to the subject OPR might bring risk of reprisal, and was therefore not an available option. He believes the evidence supports that this was a reasonable course of action and in the interest of justice the Board should find in his favor to consider the requested remedy. The applicant’s complete response, with attachments, 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took careful notice of the applicant’s complete submission pursuant to Title 10, United States Code, Section 1552 (10 USC § 1552) in support of his requests and the evidence of record. The applicant’s contention that his contested OPR contains factual errors, his rater engaged in reprisal, and his sustained record of performance demonstrated he would have been selected during the CY04 promotion board except for the reprisal are duly noted; however, we do not find the evidence provided sufficient to override the rationale provided by the Air Force offices of primary responsibility. We also note that the applicant filed two complaints with the IG; however, one complaint was a third party complaint and according to the SAF/IG case file, the applicant’s complaint did not allege reprisal. While the applicant alleges that this OPR harmed his promotion opportunities he has not provided any evidence showing that the content of the OPR was the sole reason he was not selected for promotion by the CY04B Lt Colonel promotion board. To the contrary, the evidence established indicates the applicant's records, including the contested OPR, were considered for promotion by the CY05A Lt Colonel and CY10C Colonel Selection Boards and he was selected for promotion in both instances. The applicant has not provided evidence to persuade us to the contrary and we agree with the opinions and the 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. Therefore, in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. The applicant alleges he has been the victim of reprisal. By policy, reprisal complaints must be filed within 60 days of the alleged incident or discovery to facilitate the IG’s investigation. As mentioned above, we note the applicant filed two IG complaints; however, the available record does not substantiate that either of the complaints filed alleged reprisal and it appears no investigation for reprisal was done. Nevertheless, we reviewed the evidence of record to reach our own independent determination of whether reprisal occurred under the provisions of 10 USC § 1034. We note the applicant’s contentions but based on our review of the evidence presented, we do not conclude that he has been the victim of reprisal. 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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 this application in Executive Session on 21 February 2013, under the provisions of AFI 36-2603 and the authorities found in 10 USC Sections 1034 and 1552: , Chair , Member , Member The following documentary evidence was considered in AFBCMR Docket Number BC-2012-03871: Exhibit A. DD Form 149, dated 26 August 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. IG Complaint dated 22 December 2009 (withdrawn). Exhibit D. Letter, AFPC/DPSID, dated 17 September 2012. Exhibit E. Letter, AAFPC/DPSOO, dated 18 October 2012. Exhibit F. Letter, SAF/MRBR, dated 21 December 2012. Exhibit G. Letter, Applicant, dated 3 Jan 2013, w/atch.