RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04682 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Letters of Reprimand (LOR), dated 15 April 2009 and 24 July 2009 be removed from his record. 2. His AF Form(s) 709, Promotion Recommendation, for the P0309C and P0310B Captain Promotion Boards be removed from his record. 3. He be given the opportunity to continue to serve in the Air Force. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. In a combined 25 page brief, the applicant, through counsel, makes the following contentions: a. He was discharged from the Air Force on 31 March 2011 after thirteen years of service due to the fact that he was not promoted to the grade of Captain. His failure to be promoted was a result of receiving two LORs as well as do not promote (DNP) recommendations on two Promotion Recommendation Forms (PRF) for the alleged offense of having an inappropriate relationship with another military member's wife in the spring of 2009 as well as violating two no contact orders (NCO) which were issued, as a result of the alleged inappropriate relationship, for the periods of 18 March 2009 to 29 May 2009 and 8 June 2009 to 8 September 2009. b. His commander initiated a Command Directed Investigation (CDI) to determine whether he had violated Article 92, Uniform Code of Military Justice (UCMJ), Failure to Obey Other Lawful Order, during the periods of 18 March 2009 to 29 May 2009 and 5 June 2009 to 8 September 2009. The CDI was conducted from 17 to 28 August 2009. Seven pieces of evidence were considered. They are as follows: (1). Clothing, shoes, toiletries, and computer images. (2). A hand written note. (3). The squadron recall roster, a USAA bank statement and travel management office (TMO) check. (4). Witnessed, direct conversations. (5). The applicant’s Facebook page. (6). Written statements. (7). Cell phone statements. The IO concluded that the allegation was unsubstantiated. Nevertheless, the commander, as the approving authority, issued a memorandum on 28 September 2009, in which he disapproved the finding of the CDI. c. He received written notification on 21 October 2010 that he was not selected for promotion for a second time and would be involuntarily separated. His DD Form 214, Certificate of Release or Discharge from Active Duty, indicates that his last day on active duty was 31 March 2011. He served his country for over twelve years and, with the exception of two LORs issued in this case, he has never been in any kind of trouble before. He served four years in the Marine Corps and attained the rank of Corporal before transferring to the Air Force and achieving the rank of Staff Sergeant prior to receiving his commission. He became an Electronic Warfare Officer (EWO) and received numerous awards and decorations such as a Distinguished Graduate during EWO training which demonstrates that his military record has been exemplary. In short, his record indicates that he would not have committed these offenses. d. Since his discharge, he has had a very difficult time finding and maintaining employment despite the fact that he has applied for well over a hundred positions. Due to the fact that he has over thirteen years of military service, he has attempted to obtain a position with the Federal Government. However, on each occasion, the issues of why he was discharged and the LORs have either arisen in the interview process or during the security background investigation. For example, he received an offer of employment with a federal agency, but the offer was rescinded. Likewise, he has been in the process of being hired by several other federal agencies until these issues arose during his background investigation. Recently, he was hired by a federal agency for an entry level position but was terminated after the security investigation revealed the LORs. 2. He seeks to have the LORs and PRFs removed from his record and to be made whole from their collateral consequences. The grounds for this request are as follows: a. He did not commit the alleged offenses. There is no direct evidence that would prove that he violated the no contact orders. b. Harmful procedural errors were committed. Information that was still under investigation was included in the first PRF; the second LOR was not acted upon within three days after the response was submitted; the cut-off date for senior raters to sign do not promote (DNP) memos had expired and a timely officer performance report (OPR) was not accomplished before the second PRF. Additionally, once the CDI was completed, he was never notified either verbally or in writing of the results of the CDI which a commander is required to do. c. His commander abused his discretion. The Privacy Act of 1974 was violated when his commander shared information, concerning him, with the husband of the woman with whom he allegedly had an inappropriate relationship. Additionally, although commanders have a vast amount of discretion with regard to completing a PRF, that discretion is not unlimited. In this instance, the sole reason for the recommendation on the second PRF was the LOR that was given well over a year before and had already been included on the first PRF. d. New evidence has been discovered that was not previously considered. The evidence used to show that he had violated the no contact order was altered. He was never questioned about an alleged Facebook posting that was also being considered as evidence that he had violated the no contact order. The commander who issued the LOR did not have the command authority to issue an LOR or place it in a UIF during the time period of 24 Jul 09 to 7 Dec 09. In support of his request, the applicant provides his counsel’s brief with attachments. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: 1. According to copies of his DD Form 214s, and documents extracted from his Military Personnel Record (MPR) the applicant enlisted in the Regular Air Force on 18 April 2002 and was released on 6 July 2006 to accept a commission in the same branch of service. The applicant was commissioned on 7 July 2006 and released on 31 March 2011 with an honorable characterization of service and narrative reason of separation of “Non-Selection, Permanent Promotion.” 2. On 4 November 2009, the applicant filed a grievance complaint with the AFSOC/IG. The complaint alleged that he received a second letter of reprimand (LOR) and a do not promote performance recommendation form (DNP PRF) that were not properly accomplished. 3. By letter, on 10 November 2009, AFSOC/IG notified the applicant that they had completed an inquiry into his complaint. The inquiry included a complaint clarification interview conducted with the applicant, interviews with individuals who either had personal knowledge of the circumstances or were subject matter experts, and a review of available documentation. They determined that the information developed during the inquiry was insufficient to form a basis for further investigation. 4. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits C through E. ________________________________________________________________ AIR FORCE EVALUATION: 1. AFPC/DPSIMC recommends partial relief. DPSIMC recommends denial of the applicant’s request to remove the LOR dated 15 April 2009; however, they recommend removing the LOR dated 24 July 2009, from his records since it was administered incorrectly, 2. DPSIMC states the applicant received an LOR dated 15 April 2009 and acknowledged receipt on 15 April 2009. On 23 April 2009, the commander established an Unfavorable Information File (UIF) with the LOR dated 15 April 2009. In addition, he received another LOR dated 24 July 2009, for violating a no contact order and acknowledged receipt on 3 August 2009. 3. In accordance with (IAW) AFI 36-2907, Unfavorable Information File Program, paragraph 3.4, “LORs are mandatory for file in the UIF for officer personnel.” Paragraph 3.4.1, states, “For officer personnel only: If a person other than the unit commander issues an LOR, send it to the unit commander for acknowledgment and endorsement via AF IMT 1058 and establish/file in an UIF. Include the member's written acknowledgment and any documents submitted by the member.” Additionally, paragraph 3.5.1.6, states, “The person who initiates the RIC, LOC, LOA, or LOR has 3 duty days to advise the individual of their final decision regarding any comments submitted by the individual.” The commander administered the LOR dated 15 April 2009 and established the UIF appropriately; however, the LOR dated 24 July 2009 was not administered within 3 duty days, per the AFI. The complete AFPC/DPSIMC evaluation is at Exhibit C. 1. AFPC/DPSID recommends denial of the applicant's request to void his Performance Recommendation Forms (PRF) from his permanent record. DPSID states that the applicant has not provided compelling evidence to substantiate the contested PRFs were unjust or inaccurate as written. 2. The applicant contends that his PRF, rendered for the P0309C board, contained comments that he believes should not have been mentioned due to a CDI not being fully completed. The applicant also contends that his subsequent PRF for the P031OB board contained the same bullet from the P0309C PRF that referenced the LOR dated 15 Apr 09, as well as lacked any other accomplishments. The applicant further alleges that the basis for the two LORs itself was unjust, and due to this assertion, he believes the LORs mentioned should be removed, thereby invalidating the aforementioned comments on his PRFs; thus warranting removal of the PRFs as prepared. 3. The Senior Rater is the sole proprietor of the subject PRFs and ultimately bears the responsibility of selecting what to include in the PRFs, what to leave out, which portions of the officer's career to concentrate on, and which to have supported by the record in an effort to summarize performance factors from an officer's entire career. The PRF is not the only document within the Officers Selection Record (OSR) to be reviewed when considering an officer for promotion to the next higher grade. In addition to the PRF, the OSR also includes a complete Officer Record of Performance, to include all OPRs and any earned decorations over an officer's entire career. The accomplishments the applicant references in his claim were reported in various OPRs and earned decorations spanning his career. The PRFs served as a tool to point the promotion board members to the documented record to review accomplishments and impacts regarding an officer's performance. Accordingly, the PRFs were appropriately considered. 4. The applicant has not provided any substantiating documentation or evidence to prove the final “DNP” PRFs were rendered unfairly or unjustly. Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record. Additionally, it is considered to represent the rating chain's best judgment at the time it is rendered. To effectively challenge an evaluation, it is necessary to hear from members of the rating chain or other credible officials that had firsthand knowledge of the situation, not only for support but, also for clarification and explanation. The applicant has failed to provide any information or support from any credible officials or agencies on the contested PRFs. It is therefore determined that these PRFs were accomplished in direct accordance with all applicable Air Force policies and procedures. 5. DPSID contends 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, however, the applicant has not substantiated that the contested PRFs were not rendered in good faith by all evaluators based on knowledge available at the time. Based on lack of corroborating evidence and the presumed legitimacy of the Senior Rater's overall recommendation on the subject PRFs, they recommend that no removal be made to the contested PRFs as currently exists in the applicant’s record. The complete AFPC/DPSID evaluation is at Exhibit D. 1. AFPC/JA recommends the application (except for removal of the second LOR) be denied. 2. JA states the applicant was issued the LOR dated 15 April 2009, for admitting to having committed adultery. He received a second LOR (from a subsequent commander) dated 24 July 2009, for violating a no contact order to refrain from contacting the woman with whom he admitted to committing the adultery. The applicant did not present any matters in response to the first LOR, but he submitted a letter in response to the second LOR, denying that he had violated the order. In the PRF for his 0309C promotion board, the applicant’s senior rater recommended that he not be promoted this board based on both the adultery and the violation of the no contact order. The applicant was not selected for promotion at that board. In the PRF for the 0310B (above the promotion zone) selection board, the applicant’s senior rater recommended that he not be promoted based on the original LOR and the adultery. The applicant again was not selected for promotion, and he was ultimately discharged from the Air Force. 3. The applicant first challenges the legal sufficiency of the second LOR alleging his violation of the no contact order. In addition to attempting to rebut the individual pieces of evidence that supported the violation, counsel cited the results of a CDI that found the applicant did not violate the order. The commander, however, rejected the CDI finding and determined that the order was valid, and that applicant had violated it. JA opines that the commander did not abuse his discretion in reaching that decision and the decision is supported by a preponderance of evidence. The applicant also attacks the validity of this LOR on the ground that the commander who issued it (and filed it in the UIF) was not a legitimate commander; i.e., he was never properly placed in command of the unit. Counsel bases this conclusion on the fact that the applicant’s Freedom of Information Act (FOIA) request did not result in his receiving a copy of a G-series order showing the officer's status as commander. JA states, in their view, the fact that the applicant may not have received an order reflecting the command status is not sufficient to overcome the strong presumption that the commander in question was indeed performing properly in that position. “Generally, there exists a strong presumption that administrators of the military, like other government officials, discharge their duties lawfully and in good faith.” This presumption can only be rebutted by cogent and clearly convincing evidence to the contrary. The fact that the applicant did not receive an order does not mean that such an order does not exist. More importantly, AFI 51-604, Appointment to and Assumption of Command, does not require publication of a G-series order. 4. The administrative matters concerning the second LOR and PRF have been satisfactorily addressed in the other advisories. Specifically HQ AFPC/DPSIMC recommends that the second LOR be removed from the record due to an administrative error. JA has no objection to that. Whether or not the LOR itself is removed from the record, the misconduct contained therein (violation of the order) remained a proper basis for consideration by the senior rater in preparing the first PRF. 5. The applicant also challenges the first LOR on the ground that the only evidence to support the offense was his response of “Yes” when asked if he had committed adultery as charged. Contrary to the applicant's counsel's assertion, the applicant’s “Article 31 rights” did not attach to this action. Such rights would only become relevant in a criminal prosecution; they are irrelevant to this situation or any LOR proceedings. Moreover, as noted, in his 8 June 2010 response to the PRF, the applicant fully acknowledged his having committed adultery. Similarly, his argument that the Privacy Act was violated is incorrect, as well as totally irrelevant to the ultimate validity of the LORs, PRFs, and promotion nonselections. 6. Regarding counsel's argument that under the factors listed in AFI 36-2406, paragraph 1.3.1. (now paragraph 1.8.1.3.) (factors to be considered in recording adverse information), the adultery should not have been mentioned in the PRF, this provision states that those factors should all be considered by the senior rater. The applicant's counsel has offered no evidence that the senior rater did not consider these factors; he offers only an opinion that the factors weighed against inclusion of the adultery offense. They strongly disagree. Consistent with those factors, the evidence of record fully supports the senior rater's decision. 7. Counsel’s argument that the LOR should not have been given (and therefore not included in either PRF) because an LOR is designed to be a rehabilitative tool (AFI 36-2907, paragraph 3.1), “and should not end a career,” is nothing more than his opinion; he has offered no evidence in support thereof. Counsel left out of his discussion paragraph 3.4, of AFI 36-2907, which states: “Reprimand is more severe than a counseling or admonition and indicates a stronger degree of ·official censure. LORs are mandatory for file in the UIF for officer personnel.” In short, issuance of the LOR in question under these circumstances constituted a proper exercise of the commander's discretion. 8. Counsel's final contention that new evidence was discovered that was not previously considered is without merit and irrelevant. Such evidence was not material to the matters at issue and was certainly not determinative in rebutting on the merits the validity of any of the actions taken with respect to the applicant. 9. For the reasons stated above, it is their opinion that the applicant has failed to establish any prejudicial error or injustice (removal from the record of the second LOR having had no effect on the legality of the PRFs, the promotion nonselections, or the applicant's discharge), and they recommend the application (except for removal of the second LOR) be denied. The complete AFPC/JA evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 1. In their response the applicant and counsel respond to specific points of the Air Force evaluations that are at issue: a. One of the applicant’s primary contentions is the fact that a matter which was under investigation and had not been proven was included on his PRF. Specifically, that the applicant received an LOR for violating a no contact order. This is the same LOR that AFPC/DPSIMC now agrees should be removed from his record. On 4 Aug 09, the day after the LOR was administered, the applicant was issued a PRF with a “Do Not Promote” recommendation. The PRF justifies the “Do Not Promote” recommendation by referencing the alleged violation of the no contact order. At that time, the response to the LOR was not even due yet, and the allegation certainly had not been proven. b. The response letter from AFPC/DPSID asserted that because the PRF could have been corrected until 29 Sep 09, the commander could have amended the PRF, if he wanted to, once the CDI was completed. However, this argument ignores the fact that the applicant was not afforded an adequate opportunity to respond to the PRF because he did not have the results of the CDI when his response was due. Although the IO’s report was completed on 28 Aug 09, the CDI was not actually completed until 28 Sept 09, when the commander signed a memorandum disapproving the IO’s finding. This is significant because the applicant's response to the PRF was due on 31 Aug 09, and he was never provided the results at that point in time. In fact, he did not receive the CDI until he submitted a FOIA request 18 months later. Thus, he was not able to reference any of the issues in the CDI including the finding of the IO that the allegation was unsubstantiated in a response to the Promotion Board. Instead, the commander waited over a month until the day prior to the close out of the PRF before he finalized the CDI. c. Next, the assertion from AFPC/DPSID that the commander could have amended the PRF once he received the IO's report is not a reasonable position. Although it would have been technically possible for him to do so, it is clear from the record that this never would have occurred. The commander included the information in the PRF before the LOR response was even due and also before, the investigation was completed. Once the report found the allegation was unsubstantiated, the commander simply disapproved the finding. Thus, it is clear that the PRF was not going to be amended regardless of what the finding of the CDI was, and regardless of whether there was an adequate opportunity to respond. The evidence the commander found most supportive of his disapproval of the CDI finding was the applicant’s statement regarding a pre-paid cellphone that he had prior to the no contact orders. The only reason the commander knew about the cell phone was the applicant’s honesty during the IO questioning. The commander had no additional evidence and ignored a letter that provided exculpatory information. The IO was in a better position with firsthand knowledge of the individuals interviewed to have an objective conclusion than the commander did over a month later when the disapproval was finally written. d. The advisory opinion from AFPC/DPSID failed to address a significant issue that is part of the applicant’s appeal. The guidance for the Calendar Year (CY) 2010 Quarterly Captain Selection Process included a Personnel Services Delivery Message (PDSM) that was not followed. Specifically, PDSM 09-51, dated 3 Sept 2009, required that members who were not selected for promotion during the previous selection process for the same grade receive a “Directed By Headquarters” OPR with a close-out date of 31 Jan 10. The purpose of this requirement was to enable the Promotion Board to evaluate the member's recent performance. However, the applicant’s last OPR was a Command Directed OPR closed out on 10 Oct 09. Because an OPR was never accomplished, the Promotion Board did not receive any current information regarding the applicant’s performance. In October 2009, the applicant was assigned as the Standards and Evaluation Liaison Officer for his squadron and excelled at his new position. He replaced a Captain that had been in the position for almost two years, and his performance was instrumental in maintaining the squadron's operations and training missions during a manning shortfall. His performance in this new position should have been considered by the board, but was not because the “Directed By Headquarters” OPR with a close-out date of 31 Jan 10, was not accomplished. e. First Lieutenant (1Lt) N, the former husband of the woman with whom the applicant allegedly had an inappropriate relationship, has provided a letter which is worthy of careful consideration. He confirms that he and his wife were separated in the spring of 2009. 1Lt N states that his chain of command informed him in April 2009 that they suspected the applicant was having an inappropriate relationship with his estranged wife. Thereafter, the vice commander at that point in time, specifically requested that he find proof that the applicant violated the no contact order. 1Lt N then flew from Texas to Florida in May 2009 at the vice commander’s request and entered his wife's home without her knowledge for the purpose of trying to find any such evidence. 1Lt N submitted his findings, which primarily were property that was believed to belong to the applicant, to the commander who found that there was not any credible evidence that the no contact order had been violated. The vice commander assumed command of the squadron at the end of May and reconsidered the evidence. Perhaps most importantly, 1Lt N states that he never actually heard the applicant in the background as previously stated, and that the only contact he was aware of was when the no contact order was not in effect. f. Major (Maj) B also wrote a letter of support. Maj B had regular contact with the applicant and would have had a better perspective on his promotion potential. In the letter, Maj B states that the leadership in the squadron purposely removed the applicant from his primary flight responsibilities and assigned administrative duties until September 2010 which would have been well over a year after the initial LOR was given. This obviously was a much longer period of time than was necessary and had an impact on his performance reports. Maj B also states that the applicant's performance was always above standards. 2. Based upon the reasons submitted in the combined brief and the rebuttal letter, they respectfully request that these matters be removed from the applicant’s record and that he be made whole from their collateral consequences and restored to active duty in the grade of Captain. The applicant’s complete 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 concerning the applicant’s requests to remove the Letter of Reprimand (LOR) dated 15 April 2009, and Promotion Recommendation Forms (PRF), for the P0309C and P0310B Captain Promotion Boards from his record. We took careful notice of the applicant's complete submission in judging the merits of the case; however, we do not find the evidence provided sufficient to override the rationale provided by the Air Force offices of primary responsibility. Thus, 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 compelling basis to recommend granting this portion of the relief sought in this application. 4. Notwithstanding our determination above, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice that warrants partial relief. With regard to the applicant’s request that the LOR dated 24 July 2009, be removed from his record, we note AFPC/DPSIMC’s recommendation to remove the 24 July 2009 due to procedural error. We agree with their recommendation. Additionally, we believe his PRF for the P0309C Captain promotion board should be corrected to remove any reference to the “no contact order.” Based on the fact that the investigation found this allegation to be unsubstantiated, in the interest of equity and justice, we believe this statement should be stricken from his P0309C PRF. Accordingly, we recommend his records be corrected as indicated below. 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 RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. The Letter of Reprimand dated 24 July 2009, be declared void and removed from his records. b. The AF Form 709, Promotion Recommendation Form (PRF), prepared for consideration by the Calendar Year 2009C (P0309C) Captain Central Selection Board (CSB), be corrected in item IV to remove the statement “ (Applicant) repeatedly violated an order of no contact with a married woman with whom he previously admitted to having a sexual relationship.”. c. His corrected record be considered for promotion to the grade of captain (0-3) by Special Selection Boards (SSB) for the Calendar Year (CY) 2009C (P0309C) and 2010B (P0310B) Captain CSB. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 1 August 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR Docket Number BC-2012-04682: Exhibit A. DD Form 149, dated 4 Oct 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIMC, dated 2 Feb 2013. Exhibit D. Letter, AFPC/DPSID, dated 5 Apr 2013. Exhibit E. Letter, AFPC/JA, dated 22 Apr 2013. Exhibit F. Letter, SAF/MRBR dated 12 Jun 2013. Exhibit G. Letter, Counsel, dated 30 May 2013, w/atchs. Exhibit H. IG Complaint Analysis dated 6 Nov 2009 (withdrawn).