RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05413 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: The Officer Performance Report (OPR) rendered for the period 2 May 10 through 7 Mar 11 be removed from his records. APPLICANT CONTENDS THAT: He received a “Does Not Meet” marking in Section III. Performance Factors on the contested report. His duty performance during the reporting period was satisfactory and above Air Force standards. During this reporting period he decreased the rate of fitness failures, improved mission focus, performed a mission reorganization, saved tax dollars and resources. The comment in Section IV. Rater Overall Assessment of the contested report regarding his removal from command due to a steep decline in unit morale and subsequent loss of confidence was unfair, unjustified, rendered in retaliation and is not an accurate assessment of his duty performance. The “Does Not Meet” markings in Section IX, Performance Factors, on the contested report are unproven and unjustified. He met and exceeded Air Force standards in leadership skills, judgment and decision making. His rater and additional rater had undue influence over his authority within the unit which is illegal under the Uniform Code of Military Justice (UCMJ). During his feedback, negative comments were made regarding him being a Naval Academy graduate. The evidence shows the scores for the unit climate assessment (UCA) were within the average scores for the Air Force and only a 13 point decrease from the previous year UCA. He did not receive any input or feedback from his rater regarding receiving a referral performance report. After being relieved from command, his rater assigned him to a position below his grade and skill level. During his command, he was held responsible for actions taken by his operations officer during a temporary duty (TDY) and conference. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 26 May 93, the applicant entered the Regular Air Force. On 7 Mar 11, the applicant was removed from command due to a loss of confidence by his rater and received a command directed referral performance report. On 8 Mar 11, the applicant filed an AF Form 102, Inspector General Personal and Fraud, Waste, and Abuse Complaint Registration, alleging abuse of authority, retribution and reprisal by his commanders. The Commander, 18 AF directed an investigation into the applicant’s allegations. The investigation was conducted from 14-29 Apr 11. The applicant also filed a Congressional Complaint regarding the same issues as the IG complaint. The specific allegations and findings are as follows: Allegation 1. On 7 Mar 11, Col M-- relieved the applicant from command in reprisal for his making a protected communication (PC). FINDING: NOT SUBSTANTIATED. Allegation 2. On or about 30 Mar 11, Col M--, issued a referral OPR to the applicant in reprisal for his PC. FINDING: NOT SUBSTANTIATED Allegation 3. On or about May 11, Col M--, withheld a nomination for decoration for the applicant in reprisal for making a PC. FINDING: NOT SUBSTANTIATED. Allegation 4. On or about 7 Mar 11, Col O-- approved the decision to relieve the applicant from command in reprisal for making a PC. FINDING: NOT SUBSTANTIATED. Allegation 5. On or about 30 Mar 11, Col O-- approved the decision to issue a referral OPR to the applicant in reprisal for making a PC. FINDING: NOT SUBSTANTIATED. Allegation 6. On or about May 11, Col O-- concurred with the decision to withhold a decoration for the applicant in reprisal for making a pc. FINDING: NOT SUBSTANTIATED. On 18 Jul 11, AMC/IGQ notified the applicant that his Reprisal Complaint Analysis (RCA) complaint had been reviewed and determined his allegations lacked evidence of a violation of law, instruction, regulation or policy and was dismissed in accordance with the provisions of AFI 90-301, Inspector General Complaints Resolution. He was further informed that due to the nature of his complaint, it would be reviewed by the Secretary of the Air Force’s Complaints Resolution Directorate (SAF/IGQ) and the office of Military Reprisal Investigations, Department of Defense Inspector General (DoD-IG). On 20 Jun 12, the applicant was notified his complaint was reviewed by SAF/IGQ and DoD-IG Whistleblower Reprisal Investigations Directorate who concurred with findings of AMC/IG and dismissed the applicant’s complaint. On 1 Jul 12, the applicant was retired and credited with 20 years and 9 days of active service. AIR FORCE EVALUATION: AFPC/DPSID recommends denial indicating there is no evidence of an error or an injustice. The applicant did not file an appeal through the Evaluation Appeals’ Board (ERAB); however, the ERAB reviewed the request and was not convinced the contested report was inaccurate or unjust and denied the request for relief. The applicant’s wing commander directed a UCA at the end of 2010. The applicant was ordered to report and discuss the results of the UCA with his rater and additional rater. As a result of the UCA, his rater issued him a Letter of Counseling (LOC). The evaluators are required to consider the significance and frequency of such incidents in assessing the performance and potential of their ratees. Only the evaluators can determine how much an incident influenced the report. In accordance with AFI 36-2406, Office and Enlisted Evaluation Systems, paragraph 1.3.1, evaluators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil or the UCMJ, or when adverse actions as Article 15, Letters of Reprimand, Admonishment, or Counseling, or placement on the Control Roster have been taken. The inclusion of the referral comment on the contested report was appropriate and within the rater’s authority to document the incident. Moreover, a final review of the contested report was accomplished by the additional rater and subsequent agreement by the reviewer served as a final “check and balance” in order to ensure the report was given fair consideration in accordance with all applicable Air Force policies and procedures. The memorandum from his rater relieving him from command noted the applicant was notified repeatedly regarding significant issues with his leadership style and the impact it had on the unit. It further stated he was provided ample recommendation and opportunities to rectify the situation. The applicant’s evaluators afforded him every opportunity to improve the unit climate; however, after his failure, they had no choice but to remove him from command. Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record, and is a representation of the rating chain's best judgment at the time it is rendered. 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 evidence of support from his rating chain. Without such documentation, the appropriate conclusion is that the contested OPR is accurate as written and was accomplished in direct accordance with all applicable Air Force policies and procedures. As for the supporting statement provided by the applicant, while individuals outside of the rating chain are entitled to their opinion of the applicant's duty performance and the events occurring around the time the OPR was rendered, they are not in a better position to evaluate the applicant’s duty performance than those who were assigned that responsibility. A complete copy of the AFPC/DPSID evaluation is at Exhibit C. AFPC/JA concurs with the findings of AFPC/DPSID and recommends the requested relief be denied. The applicant alleges the contested OPR was inaccurate and improperly rendered due to retaliation and improper command influence. While the applicant indicated he attached documentation that would show the errors, injustices, and retaliation he underwent, other than four character references, and an email string, he has only provided his account of the events in an effort to establish the alleged wrongdoings against him. The applicant has not provided any evidence to corroborate his allegations. In fact, the writers of the character statement do not have any personal knowledge of the events that formed the basis of the referral report. Furthermore, the email string does nothing more than to suggest the command might want to be on the look-out for possible issues with the applicant’s leadership style. Furthermore, the emails do not establish any prejudgment or command influence on the part of the commanders in his chain of command. The applicant has not provided any evidence other than his own assertions in support of his allegations. A complete copy of the AFPC/JA evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant refutes virtually every point made by the OPRs and alleges had the Air Force conducted a proper investigation from the start the evidence that would have established his case would not have been destroyed. When he took over the squadron, it had many issues left from the previous commander, to include low morale, fitness failures, waste of resources, safety, and lack of discipline. However, during his short tenure, he was able to reduce the number of fitness failures, decrease spending, improve safety, and ensure timely and fair discipline to the unit. When the contested report was originally filed, it was returned twice for improper information and wording, which his rater and additional rater knew was not in compliance with the regulation. Many of his accomplishments were not included in the contested report, such as a higher safety record, perfect inspection results, his being lauded multiple times, and initiatives of his that were benchmarked by 18 AF/CC and AMC/CC. Furthermore, a 13 point change over the course of one UCA without follow-up is not statistically reliable or significant. There was not a “check and balance” of his referral OPR because his rater and additional rater conspired during the process. His rating chain knew of all of his accomplishments, but chose to ignore them. His leadership style was effective and produced positive results. His UCA score was average and in some cases above average. He requests an investigation into this matter, to include the willful destruction of records. A review of his official record before and after the contested OPR should be conducted because this will show the contested OPR is not indicative of his performance over his 20 year plus career. Applicant’s complete response is attached at Exhibit F. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant alleges he has been the victim of an error or injustice (10 USC 1552) and that he has been a victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC 1034). He alleges his OPR, rendered for the period ending 7 Mar 11, be removed from his records due to his rater’s retaliation and undue influence against him in the squadron. After a thorough review of the evidence of record and the applicant’s complete submission, to include his rebuttal, we are not convinced he has been the victim of an error or injustice (10 USC 1552) or the victim of reprisal (10 USC 1034). We do not find the applicant’s assertions and the documentation presented in support of his appeal sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility. Additionally, we are not persuaded by the evidence provided that the contested report is not a true and accurate assessment of his performance and demonstrated potential during the specified time period or that the comment contained in the report was in error or contrary to the provisions of the governing instruction. Furthermore, the applicant did not provide persuasive evidence to establish the contested report was not an accurate reflection of his performance. Each evaluator has the obligation when writing the performance report to consider any incidents of substandard duty performance and the significance of the substandard performance in assessing the member's overall performance and potential. In this respect, it appears the statement regarding the applicant’s supervisory performance was the basis for the contested report. The applicant has not submitted any persuasive evidence showing the rater’s assessment of his supervisory skills was inappropriately reflected on the report in question. Furthermore, it appears the applicant was provided ample counseling and opportunities to improve his supervisory skills. Lastly, in regards to the applicant’s request for an investigation of this matter, to include his allegations of the willful destruction of records, we note the Board is not an investigative body and that the applicant had the option to file a complaint with the Inspector General. We note the applicant did utilize this option; however, none of his allegations of wrongdoing were substantiated and, in the absence of evidence to the contrary, we find no basis to question this finding. Therefore, we agree with the opinions and recommendations of the Air Force OPRs and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice or reprisal. In view of the above and 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’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 DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. The following members of the Board considered AFBCMR Docket Number BC-2013-05413 in Executive Session on 21 Apr 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 20 Dec 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSID, dated 7 Oct 14. Exhibit D. Memorandum, AFPC/JA, dated 15 Oct 14. Exhibit E. Letter, SAF/MRBR, dated 30 Oct 14. Exhibit F. Letter, Applicant, 5 Nov 14.