RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03766 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: His AF Form 707, Officer Performance Report (Lt thru Col), rendered for the period 2 June 2013 thru 30 December 2013, be declared void and removed from his permanent record. APPLICANT CONTENDS THAT: Through counsel, the applicant makes the following key contentions: His contested OPR should be removed due to the substantive error and bias in the form of unlawful command influence and reprisal. He was quietly asked behind closed doors by the group commander, his rater, on behalf of the wing commander, to downgrade a senior non-commissioned officer’s (SNCO) Letter of Reprimand (LOR), a day after it was issued. He continued the processing of the SNCO’s LOR and decided to place it in his personnel information file (PIF). Subsequently, he was abruptly removed from command eight days later; although, there is no documented feedback on leadership or judgment and decision making, corrective actions, or any legal actions. His contested OPR was referred due to several comments and ratings. Specifically, it indicated in block IV, he was challenged by issues not related to maintenance, unwilling to seek assistance and accept counsel; and relieved early from command; Block IX2, he does not meet standards, leadership skills; Block IX5, he does not meet standards, judgment and decisions; Block XI, he refused to accept counsel from senior non-commissioned officers and senior officers to include decisions violating AFI 36-3003, Military Leave Program. Specifically, by approving a permissive temporary duty (PTDY) for a separating member who was not authorized PTDY and; wrongfully granting convalescent leave for a member, and as a squadron commander, he failed to requisition officers, leaving two positions vacant. In regards to his refusal to accept counsel from SNCOs, he gave a LOR to a SNCO who directly refused to obey his lawful order and placed it in his PIF, which was not outside the scope of his discretionary authority. Shortly after issuing the LOR, his rater informed the SNCOs of the squadron that he would listen to any concerns they had pertaining to him and the squadron. They spoke with his rater and were informed that the incident involving the SNCO was not the only reason for his relief. The SNCO’s LOR was removed from his PIF, one day after his relief of command. His commander undermined his authority and condoned the flaunting of authority by the SNCO. His contested OPR does not specifically mention the SNCO incident; however, it is clearly the catalyst for the referred OPR. His allegations of wrongfully approving PTDY, wrongfully granting convalescent leave for a member, and failure to requisition officers leaving two positions vacant are simply untrue. These specific allegations of wrongdoing and failure are not sufficiently significant to warrant a referral. What remains is the issue with the SNCO which was not rebutted by the wing commander. His referred OPR is an attempt to disguise unlawful command influence as performance deficiencies. He took command on 10 July 2012 and his annual OPR with a thru date of 9 June 2013 was outstanding. He received benign feedback in January 2013. He initiated a Unit Climate Assessment (UCA) in March 2013 and made adjustments to his leadership. There was nothing during this period which gave rise to any adverse concerns for his leadership or judgment by his leadership. Immediately upon assumption of his new rater’s supervision on 1 August 2013, he relied on the March UCA results with no personal history and in direct opposition to his previous rater, it was concluded in his initial feedback that he didn’t meet standards in communication skills. His rater further stated that he did not care what his previous rater thought. As such, his comments could only have been derived from the prior rating period which could not be applied by regulation. Subsequently, on 16 October 2013, he was relieved of command, two months after is rater arrived. The mission success is specifically excluded as a reason for the referred OPR because his squadron was a high performing organization. His initial feedback was grounded in the UCA of March 2013; however, an UCA cannot form the basis for a referred OPR. Also, a UCA, as in this case from a prior reporting period has absolutely no application to the referral period. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is currently serving in the Air Force in the grade of major (O-4). On 5 February 2014, the contested OPR was referred to the applicant by his commander, due to a rating of not meeting standards as it relates to his performance factors, such as, leadership skills, judgment and decisions. In addition, during the reporting period he was challenged by issues not related to maintenance, unwilling to seek assistance and accept counsel, causing him to be relieved early from command. On 19 February 2014, the applicant provided a statement on his own behalf in regards to the referral report. Specifically, he refuted the allegations for the referral action in its entirety. He further indicated that he was only made aware that he did not meet standards after his removal from command. At no point was he made aware that his career was in jeopardy. On 24 February 2014, applicant’s wing commander considered his response and determined to uphold the referral OPR. On 7 May 2014, the applicant filed a complaint through the AMC/IGQ, alleging he was unfairly relieved of command by the group and wing commander. AMC/IGQ determined the applicant’s case did not have the elements of reprisal but had the potential for abuse of authority. The case was referred to the commander of the Air Force Expeditionary Center (AF EC) for resolution. The AF EC commander directed an investigation (CDI) to look into the allegations made by the applicant. The CDI did not substantiate any wrongdoing by the commanders who removed the applicant and none of the allegations were substantiated. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibit C and D. AIR FORCE EVALUATION: AFPC/DPSID recommends the removal of the comment in Section XI, which states, “to include decisions violating AFI 36-3003 by approving PTDY for separating member who was not authorized PTDY and wrongfully granting convalescent leave for a member.” However, based on lack of corroborating evidence provided by the applicant and the presumed legitimacy of the original crafting of the OPR, recommendation is that the applicant’s report not be voided in its entirety from his permanent record. The applicant filed a similar appeal through the Evaluation Reports Appeal Board (ERAB); however, the ERAB was not convinced there was an error or injustice and denied the applicant’s request for relief. The applicant received a “Directed by Commander” referral OPR after being removed from command for refusal to accept counsel from senior non-commissioned officers and senior officers. The evaluators are obliged to consider such incidents, their significance, and the frequency with which they occurred in assessing performance and potential. Only the evaluators know how much an incident influenced the report. The rating chain appropriately chose to comment and document on the underlying wrongdoing, which caused the report to be referred to the applicant for comments and consideration to the next evaluator. The applicant provided no evidence within his case to show that the referral comment on the OPR was inaccurate or unjust; therefore, the inclusion of the referral comment on the OPR was appropriate and within the evaluator’s authority to document given the incident. Moreover, a final review of the contested evaluation was accomplished by the additional rater and the reviewer which served as a final “check and balance” in order to ensure that the report was given a fair consideration in accordance with the established intent of the current Officer and Enlisted Evaluation System in place. Based upon the applicant being removed from command, its mentioning on the contested report was proper and in accordance with all applicable Air Force policies and procedures. The applicant claims his refusal to downgrade a LOR as advised is the reason for his referral OPR. There is no evidence to prove that this incident is in direct correlation to the comment in Section IV line 6 and Section XI “Challenged by issues not related to Maintenance (mx), unwilling to seek assistance and accept counsel; relieved early from command” of the 2014 referral OPR. It is clear that this incident was not the determining factor for the applicant being removed from command, there was clearly other incidents that occurred that lead him to be relieved from duty. The burden of proof is entirely on the applicant to prove an error or injustice. The applicant argues his rater almost immediately, with no personal history, concluded that he did not meet standards in communication based upon the results of the unit climate assessment. The unit climate assessment was completed while he was in command and the survey concluded that his subordinates were in agreement that the squadron had problems with favoritism and unfair treatment. The applicant’s rater believes that the applicant’s performance, judgment, and leadership skills were inadequate and documented this on his referral evaluation. The fact that the group commander did provide feedback during the reporting period shows that he communicated his expectations to the applicant; the applicant did not improve his communication skills during the rating period therefore it was necessary to document the applicant’s deficiencies within the OPR. The applicant was accused of violating AFI 36-3003, by approving a PTDY for a separating member who was not authorized and granting convalescent leave. The PTDY was cancelled prior to final approval and it was determined the applicant was completely within his authority to grant the aforementioned convalescent leave. Therefore recommendation is that the mentioning of these violations should be removed from the applicant’s referral report. The applicant has provided insufficient documentation or evidence to prove his assertions that the contested evaluation was rendered unfairly or unjustly, and has merely offered his opinion of events in the light that is most beneficial to him. 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. Furthermore, statements from all the evaluators during the contested period are conspicuously absent. In order to effectively and successfully challenge the validity of an evaluation report, it is necessary to hear from all the members of the rating chain and not only for support, but also for clarification and explanation. Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record. The applicant has not substantiated that the contested OPR was not rendered in good faith by all evaluators based on knowledge available at the time. A complete copy of the AFPC/DPSID evaluation is at Exhibit C. AFPC/JA recommends denial. The applicant’s argument that his referral OPR was the result of improper command influence and reprisal is not supported by a preponderance of the available evidence. As to the unlawful command influence argument, the evidence shows that notwithstanding any discussions that took place between the applicant and his superior commander, the applicant went ahead and took the action to file a LOR in a senior non-commissioned officer’s PIF. Therefore, the applicant was not in fact unlawfully constrained by higher command from taking the action he believed was correct. Moreover, there is nothing improper about a senior officer mentoring a subordinate commander on philosophies of handling various aspects of command. The reprisal argument is likewise not supported by the evidence. From the moment the applicant’s commander took command he expressed concerns with the applicant’s leadership style. The applicant’s actions with regard to the handling of the case involving the senior NCO was at most just one of the reasons supporting the applicant’s removal from command. Problems with communication skills, failure to heed counsel from superior and inflexibility were also problems the applicant’s commander noted in feedback sessions. In addition, the referral OPR listed other specific failures related to the applicant’s performance as commander. It is clear the commander’s decision to relieve the applicant of command was not an action of reprisal based upon a disagreement over the handling of one disciplinary matter, but rather represented the culmination of a number of exhibited failures in leadership and communication. When assessing the legality of a discretionary action like that of relieving a subordinate commander of command, the person taking the action, like any government official, is entitled to the presumption that he/she acted properly. The applicant has failed to establish clearly convincing evidence of bad faith or abuse of discretion on the part of his rater. On the contrary, the evidence shows that he had serious well documented misgivings about the applicant’s performance as commander from day one. Therefore, for these and the other reasons expressed by AFPC/DPSID, the applicant has failed to articulate any error or injustice. A complete copy of the AFPC/JA evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant refutes the allegation of his refusal to accept counsel from senior non-commissioned officers. He contacted every senior non-commissioned officer in each respective leadership position during his tenure of command and they kindly vouch for his high military standards, integrity, and leadership skills. Most importantly, they have debunked allegations that he did not listen to their counsel. Their impression of his command has been misrepresented in his contested OPR. He received no counsel, corrective actions, or feedback in terms of leadership, judgment, or decision making during the period covered by his OPR. The report in his file is not an accurate reflection of his performance. The OPR referred to the culmination of a number of failures in leadership and communication exhibited by him, regarding a unit climate assessment completed in March 2013, which was outside the scope of the contested OPR. These events actually occurred during his previous rating period. If this fact is excluded because they were covered in his last reporting period and his previous rater indicated he followed his counsel and addressed his concerns, then consideration should be given that the UCA by Air Force Instruction 36-2706, Equal Opportunity Program Military and Civilian, does not count as an official document, investigation, or complaint. Nevertheless, the UCA pointed out perceptions that needed addressing. As the unit commander, he addressed these perceptions and his previous rater concurred. In fact, the unit was awarded the maintenance effectiveness award for 2013 under his tenure as commander. When his rater took command, he read and interpreted the UCA completely differently than his previous rater. He chose to supersede his previous rater’s action and focus on the perception of discipline in the unit and favoritism. His previous rater focused on communicating policies to everyone in the unit and understood the discipline process, as he was there to hear the rationale behind each action. As supported by his first sergeant, there were no concerns about excessive discipline or deviations from standard discipline practices within the squadron or across other squadrons. In addition, the chief of personnel division, his supervisor during his first year of command echoed, “there were no concerns with unfair discipline practices or favoritism within the squadron”. His rater elected to take a unit controlled document, addressed during the previous reporting period, and use it to document what he perceived to be continuing problems in the unit. Subsuming the command decisions made by his predecessor, he used the UCA as a document to provide a basis of performance deficiencies in the squadron and stated that he did not “listen to senior officer counsel.” Outside the UCA, there was never any counsel, corrective actions, or feedback provided to him in the area of leadership, judgment, and decision making. When he was relieved of command by the wing commander, he was informed that the action occurred because he gave a decorated SNCO a LOR. However, it appears the wing commander’s concern is based on the UCA observations about the perception of discipline being unfairly administered. Revisiting the facts, he witnessed a SNCO violate a direct order. In turn, he issued him a LOR based on the corrective action of the rest of the squadron. The SNCO went to the group commander, seeking intervention. The group commander, his rater, proceeded to ask for a lessor corrective action. He did not perceive this as mentoring rather, as undue command influence. In fact, he was advised by his interim first sergeant that the corrective action he proposed was consistent with the squadron’s corrective action practices. He is stymied as to where a documented case of failure to heed counsel comes to bear. Regardless of the UCA, he followed his rater’s direction up to the point he was relieved of command. During his tenure as commander, anyone violating a direct order received a LOR. If he had given the SNCO anything different, the action would have surely been perceived as favoritism. Had his rater provided him counsel in writing, as opposed to behind closed doors, he would still have stayed his course. The only difference would be that his direction would have been documented. He further argues that he fulfilled his role as commander to the fullest and acted with full integrity. He took care of his subordinates, performed the mission at a high level, and made decisions that were in the best interest of the squadron and the airman he served. Although painful, he made honest decisions and followed the documented guidance given to him by his superiors. The applicant’s complete response, with attachments, is 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 with respect to the removal of the applicant’s contested OPR. After reviewing all of the evidence provided, to include the supporting statements from senior non-commissioned officers we are not persuaded the contested OPR is inaccurate or that its contents violate governing directives. We have noted the applicant’s contentions concerning the contested report and his allegations that the OPR is not an accurate reflection of his performance. However, while the applicant may believe this is the case, there is insufficient evidence provided to believe that the OPR in question constitutes error or injustice by a preponderance of the evidence. Therefore, we agree with the opinion and recommendation of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion. In the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4.  Notwithstanding the above, sufficient relevant evidence has been presented to warrant corrective action with respect to the comment in Section XI, of the applicant’s contested OPR, which states, “to include decisions violating AFI 36-3003 by approving PTDY for separating member who was not authorized PTDY and wrongfully granting convalescent leave for a member.” In this respect, we note the comments of AFPC/DPSID indicating that the PTDY was cancelled prior to final approval and it was determined the applicant was completely within his authority to grant the aforementioned convalescent leave. We agree with their assessment and believe the removal of this statement from the OPR is warranted and recommend the applicant’s record be corrected as indicated below. 5.  The applicant alleges he was the victim of unlawful command influence and reprisal. As noted above, a CDI did not substantiate any wrongdoing by the applicant’s commanders and his allegations of reprisal were investigated by the AMC/IGQ, which were also found to be unsubstantiated. Nevertheless, we noted the applicant’s contentions that he experienced reprisal by the issuance of a referral OPR and the removal from command for giving a decorated SNCO a LOR. As such, based on the authority granted to this board pursuant to Title 10 U.S.C. Section 1034, we reviewed the complete evidence of record to determine whether we conclude the applicant has been the victim of reprisal. Based upon our own independent review, we do not conclude the applicant was the victim of reprisal. The applicant has not established that his contested OPR or him being relieved from command were actions in retaliation for issuing a SNCO a LOR. 6.  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 the Air Force Form 707, Officer Performance Report (Lt thru Col), rendered for the period 2 June 2013 thru 30 December 2013, Section XI, be amended by deleting the words “to include decisions violating AFI 36-3003 by approving PTDY for a separating member who was not authorized PTDY and wrongfully granting convalescent leave for a member.” The following members of the Board considered AFBCMR Docket Number BC-2014-03766 in Executive Session on 20 August 2015 under the provisions of AFI 36-2603: Chair Member Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A.  DD Form 149, dated 11 September 2014, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, AFPC/DPSID, dated 21 April 2015. Exhibit D.  Memorandum, AFPC/JA, dated 6 May 2015. Exhibit E.  Letter, SAF/MRBR, dated 29 May 2015. Exhibit F.  Letter, Applicant, dated 25 June 2015, w/atchs. Exhibit G.  IG Hotline Completion Report – WITHDRAWN.