RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. IN THE MATTER OF: DOCKET NUMBER: BC-2015-02905 COUNSEL: YES HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. The Letter of Admonishment (LOA) issued by AETC/CC, dated 26 Oct 12, be rescinded and be removed from his Official Military Personnel File (OMPF) including, but not limited to, his Officer Selection Record (OSR) and Unfavorable Information File (UIF). 2. The Senior Developmental Education (SDE) removal action, dated 17 Apr 13, be declared void and be removed from his OMPF. 3. He be returned to the SDE-select list and be given the next available slot to attend SDE in-residence, with a preference for SDE in the Washington DC area. 4. The Active Duty Service Commitment (ADSC) resulting from in- residence SDE be waived or established as no later than 30 Jun 17 to match his original SDE attendance orders. 5. He be placed on the “Eligible to Command” list for group command so that he can compete for group command as the assignment after he graduates from SDE. 6. His Officer Performance Report (OPR) for the period 16 May 12 thru 15 May 13 be voided and replaced by a new OPR signed by his original rater and additional rater. 7. The previous 2nd Air Force Commander (2AF/CC) (currently Air Education and Training Command Vice Commander (AETC/CV)) be removed from his rating chain for the replacement OPR and the Secretary of the Air Force (SecAF) be substituted as his reviewer. 8. The previous 2AF/CC be removed as his Senior Rater (SR) for the P0613C Selection Board. 9. His Promotion Recommendation Form (PRF) for the P0613C Selection Board be removed from his records and be replaced by a “Definitely Promote” PRF signed by AETC/CC or SecAF. 10. His records be referred to the next Special Selection Board (SSB) using a procedure that allows that he be promoted without beating any of the benchmark records. APPLICANT CONTENDS THAT: His career was on a ‘fast track’ and was ruined by AETC/CC’s improper actions against him which SAF/IGS later determined were egregious. He contends that AETC/CC issued punishment to several officers (to include himself) based on erroneous information and advice of his Staff Judge Advocate. To make him whole, the Air Force should restore his in-residence SDE and remove the negative entries from his record. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to information obtained from the applicant’s record, the Inspector General of the Air Force (SAF/IG) investigation (Exhibit H), and AF/A1P advisory, the following sequence of events was formulated. The applicant entered the Regular Air Force on 03 Feb 93. On 25 Jun 10, the applicant assumed command of the 326th Training Squadron (TRS), Lackland AFB, TX. On 29 Aug 11, he relinquished command of the 326 TRS and became the deputy commander of the 737th Training Group (BMT). On 15 May 12, he received his annual OPR and the 37th Training Wing commander rated him as his “#1/42 Lt Cols and #1/75 FGOs” while serving in his role as the deputy group commander. On 20 June 12, AETC/CC initiated a Commander-Directed Investigation (CDI) into alleged faculty and staff misconduct with BMT trainees and technical training (TT) students. On or about 30 June 12, the applicant deployed to Afghanistan, to be the 738th Air Expeditionary Advisory Deputy Group Commander. On 24 Aug 12, AETC/CC directed AETC/JA to assess accountability for each Military Training Instructor (MTI) currently under investigation, and those previously disciplined for the same types of misconduct, and whether a lack of appropriate action by BMT leadership contributed to an environment that did not sufficiently deter misconduct. On 5 Sep 12, AETC/JA initiated a BMT Chain of Command Accountability Review Tiger Team consisting of 15 legal personnel from across AETC. On 12 Sep 12, the applicant was interviewed over the phone from his deployed location. On 2 Oct 12, AETC/JA presented AETC/CC the MTI misconduct and accountability final brief. On 26 Oct 12, AETC/CC issued the applicant a LOA/Unfavorable Information File (UIF). The LOA administered stated he “failed to ensure an appropriate investigation into allegations of MTI misconduct and failed to hold several MTIs appropriately accountable for their misconduct.” On 1 Nov 12, the applicant was designated to attend Naval War College. On 21 Nov 12, the applicant provided a written response to the LOA. On 27 Dec 12, he received notification the AETC/CC upheld the LOA and UIF action. On 2 Jan 13, the applicant provided a written response to the UIF actions; however, on 8 Jan 13 AETC/CC decided to uphold the UIF action. On 17 Apr 13, the AF/A1 approved the new 37th Training Wing Commander’s request to remove the applicant from SDE attendance at the Naval War College. On 27 Jun 13, the applicant redeployed from Afghanistan and subsequently PCS’d from Lackland AFB to the Defense Threat Reduction Agency (DTRA), instead of Naval War College. On 9 Sep 13, 2 AF/CC (the applicant’s former senior rater), notified the applicant he intended to file the LOA in his Officer Selection Record (OSR) for his IPZ and subsequent promotion boards. The applicant provided a response, but 2 AF/CC took the action. On 8 Oct 13, the applicant received his IPZ PRF for the P0613C selection board from 2 AF/CC with a “Do Not Promote” recommendation. The applicant provided a letter to the promotion board. On 9 Dec 13, the contested OPR was referred to the applicant due to the “non-concur” rating and referral comments from 2AF/CC (reviewer). The applicant provided a response to the new AETC/CC, but the AETC/CC concurred with the 2AF/CC action. On 20 Feb 14, the applicant filed an IG complaint with the SAF/IGS. On 20 May 14, SAF/IGS initiated a full investigation of alleged AETC/JA misconduct due to the complaint analysis findings. In the Oct 14 published IG report, the investigating officer (IO) substantiated that AETC/CC was presented erroneous, incomplete or inaccurate information in the AETC/JA Accountability Review after which he and others received adverse administrative actions, and during due process of [their] responses to administrative actions, failed to correct previously presented inaccurate information. On 13 Feb 15 and 11 Mar 15, SAF/IG and DoD/IG, respectively, approved the IG report where the investigation found that the AETC/JA Accountability Review and the subsequently prepared adverse actions were flawed. Specifically, the IO found the Review of Response was inaccurate when it stated the applicant’s response to the LOA disclosed no new material facts. Despite this conclusion, the AETC/JA authors failed to correct their inaccurate review of the applicant’s response to his LOA for the AETC/CC’s consideration. On 28 Apr 15, SAF/IG substantiated the applicant’s complaint. The remaining relevant facts pertaining to this application are described in the memorandum prepared by AF/A1P, which is included at Exhibit C. AIR FORCE EVALUATION: AF/A1P believes relief is warranted, indicating there is evidence of an error or injustice on the basis of the SAF/IG finding. AETC/JA’s presented information, determined to be inaccurate by the SAF/IG, creating an injustice in the form of an LOA and UIF being incorrectly included into this officer’s OSR, thus precluding him from being promoted to the grade of colonel. Furthermore, the basis for which he was removed from SDE is unfounded. The applicant requests the following corrections to his records take place to restore him to where he would be were it not for the adverse actions that cost him his SDE selection, promotion to colonel, and consideration for command. -Removal of documents from the record: The suggested relief is to remove the LOA, the UIF, the AF/A1 SDE removal memo, and the OPR (closeout 15 May 13) replacing it with an AF Form 77 indicating that period of time was not rated. This course of action would provide the relief requested by the applicant except for the re- accomplishment of his OPR. In order for the Board to approve the corrected OPR, the applicant would have to submit a completed OPR. Furthermore, the OPR was not in his OSR for the P0613C selection board and a corrected OPR would have no bearing on that selection board. -Return to the SDE-select list: The applicant was removed from the SDE and the appropriate course of action would be to give him a slot for SDE (with a years-of-service exception to policy), preferably in the Washington DC area, and his ADSC be set to match his original SDE attendance orders of 30 Jun 17. -Placed on the eligible to command list: Because the applicant was not selected for colonel, his records never met the Command Screening Board. The Command Screening Board’s purpose is to identify a list of the best qualified colonel candidates for the hiring authorities to use when hiring group-level and above commanders. Because the Command Screening Board is a competitive process, it is not recommended his name be added to the command list without being vetted by the board once meeting other eligibility requirements (e.g., promotion). However, he should be given two additional years of eligibility as he lost two chances to compete during resolution of this matter. -Remove and replace his PRF with a “Definitely Promote” PRF with new senior rater, preferably AETC/CC or SecAF, and referred to the next SSB: It is within the Board’s authority to approve a correction of an evaluation; however, to approve a corrected PRF, the applicant would have to submit a completed PRF. Because the LOA was inappropriately placed in his OSR, he should be given SSB consideration, and if necessary, for any subsequent promotion selection board which considered the derogatory information. It is recommended his OSR compare with benchmark records to determine if he should be promoted. A complete copy of the AF/A1P evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant agrees with the A1P recommendations and provided several comments in response to their advisory opinion. With regard to the PRF, the applicant previously submitted a draft PRF however his rater at the time has refused to sign the new PRF. Therefore, the applicant requests either the Vice Director for Strategic Plans and Policy, Joint Staff (formerly in his chain of command when the original PRF was drafted) or the Deputy Director Defense Threat Reduction Agency (currently in his chain of command) sign a “definitely promote” PRF. As for his SDE slot, the applicant is scheduled to PCS at the end of this year; therefore, he requests that he be allowed to remain in the National Capital Region until his SDE course begins. As for the OPR/Form 77, the applicant does not believe placing a Form 77 in his record rectifies the harm done. He believes A1P does not consider the previously submitted OPR as being complete even though he provides one now with signatures from both the rater and additional rater. Only the reviewer has refused to sign the re- accomplished report; therefore, he suggests one of the two officers identified to sign the PRF also serve as the reviewer for the OPR. A complete copy of the applicant’s rebuttal is at Exhibit E. AIR FORCE EVALUATION OF APPLICANT’S REVIEW AF/A1P reviewed the applicant’s rebuttal. Because the Senior Rater (SR) at the time (2AF/CC) cannot provide an unbiased review of the PRF, it would fall to the next SR in the applicant’s chain of command and those offered by the applicant are unacceptable alternatives. Instead of directing the PRF be marked “Definitely Promote,” it is recommended the applicant meet a supplemental AETC MLR to determine the awarding of a DP PRF. Additionally, it is recommended he attend SDE this summer in the National Capitol Region (NCR) if timing permits. Furthermore, the OPR as drafted can be used to replace the 15 May 13 OPR if all signatures can be obtained. Because the 2AF/CC at the time refuses to sign as reviewer, the current 2AF/CC is a suitable alternative as it does not have to be signed by the person in that position at the time of the OPR. If the signatures cannot be obtained, the recommendation to replace the contested report with an AF Form 77 still stands. A complete copy of the AF/A1P evaluation is at Exhibit F. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the additional Air Force evaluation was forwarded to the applicant on 16 Mar 16 for review and comment within 30 days. The applicant has no further response to the A1P recommendations as outlined 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. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s promotion opportunities. After a thorough review of the evidence of record and the applicant’s complete submission, to include the applicant’s Article 138 complaint and the SAF/IG investigative report, we are convinced the applicant is the victim of an error or injustice. In this respect, we note the determination of SAF/IG that AETC/CC did not have the benefit of completely accurate information or advice prior to issuing the applicant a letter of admonishment (LOA). Therefore, we agree with the opinion and recommendations of AF/A1P and adopt its rationale as the basis for our conclusion the contested LOA and UIF should be declared void and removed from his records. Therefore, because the contested OPR was referred to the applicant due to comments related to the LOA and UIF, we believe the OPR should be corrected to reflect that it was not referred to the applicant, but instead contained comments and ratings befitting his superior performance during the period in question. While we note the comments of AF/A1P indicating that it would be appropriate replace this report with the OPR proposed by the applicant once the proper signatures are obtained, given the circumstances at play in this specific case, we are not convinced it is possible for the applicant to do so. In this respect, we note the original reviewer of the report in question refuses to affix his signature to the proposed OPR and we are not convinced the applicant would be successful in obtaining the signatures of the officials described in the AF/A1P advisory opinion without compounding the injustice perpetuated upon him due to the passage of even more time since the events in question derailed his promising career. Therefore, after a thorough review of the evidence of record and the applicant’s strong record of performance, we believe it proper and fitting to correct the OPR on file to reflect that it was not referred, but instead contained a rating and comments by the Reviewer befitting his otherwise exemplary performance. Accordingly, we also recommend that his corrected records be considered for promotion by a SSB for the P0613C Central Selection Board (CSB) and agree with the rationale of AF/A1P in that his record meet a SSB with comparison to benchmark records. We note the debate among the parties regarding the appropriate signatories for a replacement promotion recommendation form (PRF) for the SSB. For the reasons noted above, we believe forcing the applicant to “shop” for a signatory for the proposed replacement PRF among the suggestions described in the advisory opinions will again only serve to compound the injustice he has suffered. At the same time, the evidence presented is not sufficient for us to simply accept the proposed PRF would have been rendered, but for the events in question. However, in view of the fact there is a PRF in his record from when he was previously considered for promotion that is very similar to the PRF proposed by the applicant and is based on his underlying record, we believe it would be proper and fitting to utilize said PRF, appropriately modified, for use by the SSB in evaluating his promotion potential. We also note the recommendation of AF/A1P indicating the applicant’s record meet a supplemental management level review (MLR) to determine whether the applicant’s corrected record should have garnered a Definitely Promote (DP) or a Promote (P) recommendation; however, we believe the evidence before us is sufficient to conclude that but for the events in question, it is more likely than not the applicant would have received an outright DP recommendation. Additionally, we do not believe subjecting the applicant’s records to a supplemental MRL is practical as an AETC supplemental MLR may not ensure an unbiased PRF appeal process since the applicant’s former senior rater is now the AETC/CV. Therefore, we believe it appropriate to further correct the modified PRF to reflect that he received a “DP” recommendation. As for the applicant’s requests related to his Senior Developmental Education (SDE), we agree with the opinion and recommendation of AF/A1P indicating the applicant’s records should be corrected to remove the SDE withdrawal memo and the applicant be afforded the opportunity to attend SDE in residence in the National Capital Region as soon as practicable and that his SDE related active duty service commitment (ADSC) be established as 30 Jun 17 as if he had attended SDE when originally scheduled to do so. Finally, regarding the applicant’s request for his records to be corrected to reflect “Eligible to Command,” for the reasons noted by AF/A1P, we believe it would be appropriate, should the applicant be selected for promotion to Colonel by the SSB and confirmed by the Senate, to recommend the applicant’s records be corrected to reflect two additional years of eligibility to compete for group-level command through the 2019 Command Screening Board. While we note this is not the precise relief requested by the applicant or contemplated by the Air Force office of primary responsibility, given the unique circumstances at play in this case, we believe it is proper and fitting in that, to the degree possible, our recommendations expunge from his records the adverse actions resulting from the faulty Accountability Review while restoring his promotion opportunities. Therefore, we recommend the applicant’s records be corrected to the extent indicated below. 4. We also recognize our recommendation could require further corrections to the applicant’s record. The applicant may, upon Senate confirmation, use this record of proceedings and the accompanying directive to the Chief of Staff of the Air Force as justification to effect other administrative corrections to his military records (e.g., correction of his grade as reflected on officer performance reports) that may be necessary and proper as a result of his retroactive promotion to the grade of Colonel. 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 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: a. The Letter of Admonishment (LOA) and the Unfavorable Information File (UIF), and all Air Force documents relying on or referring to them, be declared void and removed from his records. b. His Officer Performance Report (OPR), closing 15 May 13, be corrected as follows: (1) Section VI, title of section, be corrected to reflect “concur” instead of “non-concur” with the removal of the narrative, in its entirety. (2) Sections IX and XI, removal of any comments or annotations reflecting the report was referred. c. His P0612B Promotion Recommendation Form (PRF) be corrected as follows: (1) Section IV, change last line to read, “- Nailed command and BMT gp/CD! #1/6 O-5s as AEAG/CD in Afghanistan--SDE followed by gp/CC! DP now!” (2) Sections V, VII, and IX to reflect “I/APZ,” “P0613C,” and “Definitely Promote,” respectively. d. His corrected record, to include the modified PRF, meet a Special Selection Board (SSB) for the P0613C promotion selection board using benchmark records. e. The 17 Apr 13 AF/A1 Senior Developmental Education (SDE) removal memorandum be declared void and removed from his records. f. He be given a quota for in-residence SDE in the Washington DC area starting this summer/fall, with an active duty service commitment of 30 Jun 17. g. If selected for promotion to the grade of colonel by the SSB, and subsequently confirmed by the Senate, he be given two additional years of eligibility to compete for group-level command through the 2019 Command Screening Board. The following members of the Board considered AFBCMR Docket Number BC-2015-02905 in Executive Session on 29 Mar 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 13 Jul 15, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AF/A1P, dated 22 Feb 16. Exhibit D. Letter, AFBCMR, dated 24 Feb 16. Exhibit E. Letter, Applicant’s Counsel, dated 3 Mar 16. Exhibit F. Memorandum, AF/A1P, dated 15 Mar 16. Exhibit G. Email, Applicant’s Counsel, dated 16 Mar 16. Exhibit H. ROI, SAF/IG, dated October 14.