RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. IN THE MATTER OF: DOCKET NUMBER: BC-2015-00549 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. His Training Report (TR) rendered for the period 18 May 12 to 11 Jul 13 be amended to remove the derogatory comments, “Member removed from training due to lack of suitability for assignment in the Defense Attaché System” and replace with “Member removed from training due to needs of the Air Force and with non-repudiation.” 2. Remove his Training Report rendered for the period 18 May 12 to 11 Jul 13 and his corrected Officer Selected Record (OSR) be considered by Special Selection Boards (SSBs) for the Calendar Year 2014A (CY14A) In-the-Promotion-Zone (IPZ) and the CY15A Above-the-Promotion-Zone (APZ) Lieutenant Colonel Central Selection Boards (CSBs). 3. His Joint Service Achievement Medal (JSAM), dated 18 Sep 04, be included in his OSR and he be considered by SSBs for the CY13A Below-the-Promotion-Zone (BPZ) and the CY14A IPZ Lieutenant Colonel CSBs. (Administratively Corrected) APPLICANT CONTENDS THAT: The contested TR from the Defense Intelligence Agency (DIA) Joint Military Attaché School (JMAS), dated 18 May 12 to 11 July 13, shows comments “that are derogatory in nature, imply or refer to behavior incompatible with, or not meeting minimum acceptable standards of personal or professional conduct, character, judgment or integrity, and/or refer to disciplinary actions,” and the contested TR was not referred to him In Accordance With (IAW) AFI 36-2406, Officer and Enlisted Evaluation Systems, para 1.10.3.1. He was removed from training by the Secretary of the Air Force International Affairs (SAF/IA) while attending and assigned to DIA JMAS. However, the DIA JMAS Commandant, was not aware of SAF/IA's process to remove him in Feb 13. According to the TR, he was removed for "unsuitability;" however, his excellent records during training didn't show this. He excelled at his language training and Attaché School (JMAS) and DIA JMAS did not identify any signs of unsuitability during his 35 weeks of training with DIA JMAS that included language and Attaché training. After the SAF/IA meeting, he was notified that his commander did as the SAF/IA board requested, remove him from training (non- repudiation and assign him to another International Affairs assignment. He and his entire leadership, while developing his Promotion Recommendation Forms (PRFs) utilizing the narrative citation and order memorandum, were not aware that only the contested JSAM order memorandum, not the narrative, was in his “as met” OSR for consideration by the CY13A and the CY14A CSBs. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 26 May 00, the applicant was commissioned as a second lieutenant in the Regular Air Force. On 1 Dec 09, the applicant was promoted to the grade of major. On 18 Sep 04, under Permanent Order 262-086, the applicant was awarded the JSAM for meritorious service during his tour in Iraq. On 11 Jul 13, the applicant was removed from training at the JMAS, Washington DC. On 26 Jun 14, the applicant was notified of his non-selection for promotion to lieutenant colonel by the CY14A Lieutenant Colonel CSB. On 9 Jun 15, the applicant was notified of his non-selection for promotion by the CY15A Lieutenant Colonel CSB. Because this was his second deferment, his Mandatory Separation Date (MSD) was established as 30 Sep 15. On 17 Feb 15, the applicant was notified that his request to provide his wife with a certificate of accomplishment was not within the Board’s purview since it does not correct a military record. On 30 Sep 15, the applicant was relieved from active duty and retired, effective 1 Oct 15. He was credited with 22 years, 3 months, and 10 days of active service for retirement. The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C thru E. AIR FORCE EVALUATION: AFPC/DP2SP administratively corrected the applicant’s record to add the JSAM citation to his P0513A and P0514A CSB OSRs and granted SSB consideration. However, based on the recommendation from DPSIDE to deny the applicant's request to correct or remove the 11 Jul 13 TR, DP2SP recommend denial for any further SSB consideration. A complete copy of the DP2SP evaluation, with attachment, is at Exhibit C. AFPC/DPSIDE initial recommendation was dated 22 Oct 15; however, on 22 Feb 16 DPSIDE provided another opinion to the Board. DPSIDE, in both opinions recommends denial of the applicant’s request to correct or remove the contested TR, indicating the applicant should exhaust all available avenues of administrative relief prior to seeking correction of their military records. If the administrative appeal is not successful, the applicant may resubmit the DD Form 149, Application for Correction of Military Records, and the results of the ERAB administrative review to the Board. In addition, DPSIDE recommends the applicant submit a new AF Form 948, Application for Correction/Removal of Evaluation Reports, with all required supporting documentation, through the vMPF/Evaluation Appeals found under the Most Popular Applications. A complete copy of the DPSIDE evaluation is at Exhibit D. AFPC/JA recommends the applicant’s request be referred to the DIA JMAS to follow the referral procedures required by AFI 36- 2406, paragraph 1.10.6.4. JA further recommend the applicant be allowed to meet the appropriate SSBs for promotion. In their analysis, JA noted the two opinions from DPSIDE recommended denial of the requested relief because the applicant did not appeal to the ERAB and, thus, did not exhaust other available administrative remedies. However, JA disagrees with this recommendation. JA further notes, at the time of his original appeal, the applicant was still on active duty. However, he is currently retired and in accordance with Air Force Instruction 36-2406, paragraph 10.1.4, “[r]etired or separated personnel are not eligible to apply for correction through the ERAB; therefore, they must submit a DD Form 149 to the AFBCMR.” As such, the applicant currently has no administrative remedy to exhaust other than the Board. In addition, AFI 36-2406, paragraph 1.10.3.1 states that a performance evaluation must be referred when “[c]omments in any [Training Report], regardless of the ratings if applicable, or the attachments to that evaluation, that are derogatory in nature, imply or refer to behavior incompatible with, or not meeting minimum acceptable standards of personal or professional conduct, character, judgment or integrity, and/or refer to disciplinary actions.” (emphasis added). If doubt arises as to whether a comment is a referral comment or not, an evaluator is required to refer the evaluation. AFI 36-2406, paragraph 1.10.2.1., here, the comment that the applicant was removed from training “due to lack of suitability for assignment in the Defense Attaché System” implies that he failed to meet the minimum acceptable standards for professional conduct. At the very least, it is ambiguous. As such, the Training Report should have been referred to ensure that the applicant had an opportunity to respond to the potentially derogatory comment about his suitability. The applicant has failed to show the comment was in error; but, he was denied an important due process right, and the promotion board did not have an opportunity to review his rebuttal to the comment. JA recommends returning the report to DIA to complete the referral process, and that he be allowed to meet the appropriate SSBs. A complete copy of the JA evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluation(s) were forwarded to the applicant on 9 Mar 16 for review and comment within 30 days (Exhibit F). As of this date, no response has been received by this office. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted some remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice warranting corrective action. After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice. While we note the comments of AFPC/DPSID and DPSIM indicating that relief should be denied because the applicant has not exhausted his administrative remedies; nonetheless, AFPC/JA has opined that subsequent to the applicant’s request, he was retired and his only avenue for relief is through the BCMR process. Therefore, due to the errors in the processing of the Training Report, we recommend the contested report be removed and the applicant’s corrected record be considered for SSB by the CY14A and the CY15A promotion boards. We believe by providing the applicant the requested relief to remove the report, along with the aforementioned administrative relief, we will afford the applicant full and fitting relief. In view of the above, we recommend the applicant's records be corrected as indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that: 1. The AF IMT 475, Education/Training Report, rendered for the period 18 May 2012 to 11 July 2013, be declared void and be removed from his records. 2. It is further recommended that he be considered for promotion to the grade of lieutenant colonel by a Special Selection Board for the Calendar Year 2014A (CY14A) and the CY15A Lieutenant Colonel Central Selection Boards. The following members of the Board considered AFBCMR Docket Number BC-2015-00549 in Executive Session on 12 Apr 16 under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 4 Feb 15, w/atchs. Exhibit B. Pertinent Excerpts from Personnel Records. Exhibit C. Letter, AFPC/DP2SP, dated 6 Nov 15. Exhibit D. Letter, AFPC/DPSIDE, dated 22 Feb 16. Exhibit E. Letter, AFPC/JA, dated 6 Mar 16. Exhibit F. Letter, AFBCMR, dated 9 Mar 16. 5