RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. IN THE MATTER OF: DOCKET NUMBER: BC-2015-04820 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. The Letters of Admonishment (LOAs) issued by the Commander, Air Education and Training Command (AETC/CC) on 26 Oct 12 and 2 Nov 12 be rescinded and removed from his Official Military Personnel File (OMPF) and all other records where such documents exist. 2. His Officer Performance Report (OPR) dated 31 Jul 13 be removed from his OMPF and all other records where such report exists. 3. The Record of Promotion Propriety Action dated 15 Apr 13 be rescinded and removed from his OMPF and all other records where such document exists. 4. He be awarded active duty back pay at the rank of Lieutenant Colonel from his retirement date to the date he was projected to be promoted to the grade of Colonel. 5. His promotion to Colonel be reinstated. 6. He be retired in the grade of Colonel from his projected promotion date and awarded retired pay at the grade of Colonel from that day forward. 7. He be given a full accounting of the results of his Article 138 submissions against the former commanders of AETC and Air Mobility Command (AMC). 8. He receive a letter from the Secretary of the Air Force (SecAF) confirming and agreeing with the SAF/IG’s findings of his case. 9. For the betterment of future senior officers, he asks that the Board for Correction of Military Records (BCMR) recommend to the SECAF to consider incorporating this case’s lessons learned into CAPSTONE. APPLICANT CONTENDS THAT: His career was on the fast track and his promotion to the grade of Colonel, Below-the-Promotion-Zone, identified him in the top 3.7% of officers for the CY12B promotion board. Because of the failure to correct the clearly erroneous information by the AETC/JA, and the subsequent lack of leadership by AETC/CC and AMC/CC, his career was prematurely ended. AETC/CC’s communications to AMC/CC and Headquarters Air Force resulted in the revocation of his promotion to Colonel, cancellation of his Senior Developmental Education (SDE) assignment, removal from his role as Chief of the AMC Commander’s Action Group, and he being threatened with a referral OPR. 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 F), and the AF/A1P advisory, the following sequence of events was formulated. The applicant entered the Regular Air Force on 15 Dec 88. On 14 Jun 09, he assumed command of the 323d Training Squadron, Lackland AFB, TX. On 16 Jun 11, he relinquished command with a subsequent assignment as AMC/CC speechwriter and later as Chief, AMC Commander’s Action Group. On 7 Aug 12, he received his annual OPR with a statement of “#1 of 900 O-5s.” On 24 Aug 12, AETC/CC directed AETC/JA to assess accountability for each Military Training Instructors (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 2 Oct 12, AETC/JA presented AETC/CC the MTI misconduct and accountability final brief. On 26 Oct 12, AETC/CC issued the applicant an LOA for failing to hold a MTI under his command appropriately accountable for misconduct and issued administrative actions to three other squadron commanders based on AETC/JA’s “Accountability Review.” On 2 Nov 12, subsequent to the applicant’s response to the AETC/CC action, the AETC/CC withdrew the LOA and issued a new LOA finding the applicant’s actions contributed to an environment that did not sufficiently deter serious misconduct of a sexual nature by MTIs with trainees. On 16 Nov 12, the CY12B Colonel Line of the Air Force (LAF) Central Selection Board (CSB) recommended the applicant for promotion from Below-the-Promotion-Zone (BPZ). On 30 Nov 12, AMC held a Change of Command and the former AMC/CC elected not to establish an Unfavorable Information File (UIF) on the applicant, or place the AETC/CC LOA in his PIF, or include it in his OSR. On 10 Jan 13, the new AMC/CC elected not to establish a UIF, place the AETC/CC LOA in his PIF, or include it in his OSR. On 20 Mar 13, the applicant’s name was withheld from the nomination scroll to permit further review of his qualifications for promotion. Had his nomination gone forward and the Senate confirmed, his projected date for promotion would have been 1 Oct 14. On 15 Apr 13, AMC/CC initiated action to remove the applicant from the CY12B Colonel LAF promotion list reasoning the applicant’s possible contribution to the breakdown of good order and discipline in the BMT environment. On 31 Jul 13, AMC/CC signed a “meets standards” OPR for the rating period of 14 Jun 12 through 12 Jun 13. On 3 Oct 13, the applicant filed two complaints under Article 138, UCMJ to AETC/CC and AMC/CC. After AETC/CC and AMC/CC denied relief, acting SecAF directed the complaints and the promotion list removal actions be held in abeyance until a SAF/IG Complaint Analysis (conducted 1 Nov 13 – 13 May 14) into alleged AETC/JA misconduct was accomplished. On 1 Jan 14, the applicant retired from the Regular Air Force and was credited with 25 years and 16 days of active service. On 20 May 14, SAF/IGS initiated a full investigation of alleged AETC/JA misconduct due to the complaint analysis findings. 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. On 4 Dec 15, SecAF granted some relief sought by the applicant by directing the AETC/CC LOA, dated 2 Nov 12, be rescinded and all Air Force documents that rely on or refer to the LOA be removed from official files. SecAF also disapproved and terminated the removal action initiated by AMC/CC, noted that the applicant’s retirement caused him to be administratively removed from the promotion list by operation of law and policy, and finally found insufficient information to render a decision on the 2013 OPR. The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is included at Exhibit C. AIR FORCE EVALUATION: AF/A1P recommends granting relief indicating there is evidence of an error or injustice. The applicant was selected for promotion by the CY12B LAF Promotion Board; however, AETC/CC’s and AMC/CC’s actions, which were determined to be unfair and an abuse of discretion by SecAF, created an injustice which precluded him from being promoted to the grade of colonel and prompted his retirement. 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 promotion to colonel. -Removal of documents from the record: No Board action is required to remove or rescind the LOA or the promotion list removal action or provide a full accounting of SecAF’s actions because of the SecAF’s actions on the Article 138, UCMJ complaints. Furthermore, A1P suggests the Board not act on the removal or replacement of the 31 Jul 13 OPR without input from the AMC/CC as this OPR reflected he “Meets Standards” and contained no derogatory information. In order to approve a correction to his OPR, the applicant would have to submit a completed OPR. -Promotion: Had the applicant not been subjected to the adverse actions, his name would likely have remained on the scroll and he would have been promoted to the grade of colonel on 1 Oct 14. Moreover, when he retired, his action caused his name to be administratively removed from the CY12B Colonel LAF Promotion List by operation of law and policy so restoring him to that list provides no basis for relief because his promotion eligibility period for that board has expired. An SSB, however, would be available if the Board were to determine there was an error or injustice. Therefore, to the extent permitted, a Board decision showing he met an SSB for the CY13C Colonel LAF Promotion Board with a recommendation for promotion would expedite his case. His name would then have to be forwarded by SecAF for nomination by the President and confirmation by the Senate. -Retire in grade: Under 10 U.S.C § 1370, an officer is retired in the highest grade in which he/she served on active duty satisfactorily. In order to be eligible for voluntary retirement in a grade above major, a commissioned officer of the Air Force must have served on active duty in that grade for not less than three years. SecAF may reduce such period to not less than two years based upon prior SecDEF authorization of the statute. An officer who is involuntarily retired, need only served on active duty satisfactorily for a period of not less six months. However, because there is no guarantee that the Secretary of Defense or the President would support the nomination or that the Senate will confirm his nomination, A1P recommends no further relief until after the Senate acts. -CAPSTONE lesson learned case: It is not suggested the Board recommend to the SecAF to consider incorporation lessons learned from this case into CAPSTONE, due to each case being unique in its own right, submitting one case into CAPSTONE will not serve for the betterment of future senior officers. A complete copy of the AF/A1P evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant was encouraged by the preliminary findings in the evaluation; however, he stresses that it was not his choice to retire, it was the path that offered the least potential for negative outcomes on his ability to care for his family. In support of his response, the applicant provides additional information and clarification. He does not desire a new or corrected OPR; however, he would prefer a blank OPR be in the record than one that does not truly represent his record of performance. He further reiterates his request to include this case in CAPSTONE for the betterment of future senior officers. He further believes the most efficient and effective method to correct the admitted wrongdoing is to be placed on the scroll and his nomination forwarded to the Senate and the President for confirmation. Finally, he requests three years of active duty back pay as a colonel. A complete copy of the applicant’s rebuttal is at Exhibit E. 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. After a thorough review of the evidence of record and the applicant’s complete submission, to include the applicant’s Article 138 complaint and SecAF relief, and the SAF/IG investigative report, we are convinced the applicant is the victim of an 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 the contested letters of admonishment (LOA). We note the accounting and relief previously provided by the SecAF with regard to the removal the LOAs and any documents that rely on or refer to them (e.g., Promotion Proprietary Action (PPA)) as a result of the applicant’s Article 138 complaint; therefore, in our view, no action by this Board is required with respect to this portion of the applicant’s request. As for his request to remove the contested officer performance report (OPR), we are also convinced the applicant is the victim of an error or injustice. While we note the comments of AF/A1P indicating that said report should not be removed because it contains no derogatory information, we believe the evidence presented is sufficient to conclude that said report is not an accurate representation of the applicant’s performance and potential during the period in question. In this respect, we find it at more likely than not that, but for the events in question, the OPR rendered upon the applicant would have contained a much stronger narrative and stratification than the OPR on file in his records. As for his requests related to his promotion opportunities, we agree with most of the opinion and recommendation of AF/A1P and adopt its rationale as the basis for our conclusion the applicant’s records should reflect that he was recommended for promotion by an SSB for the CY13C Colonel Line of the Air Force (LAF) Central Selection Board (CSB) and, upon Senate confirmation, the SecAF determined that he is to be granted the same date of rank, effective date for the pay and allowances of the grade to which promoted, and the same position on the active-duty list as he would have had if his name had not been removed from the CY12B Colonel LAF CSB. With regard to his retirement in the grade of colonel, upon Senate confirmation, we believe the applicant’s record should be corrected to show he did not voluntarily retire on 1 Jan 14, but continued to serve on active duty where he was promoted to the grade of colonel on 1 Oct 14 and that he voluntarily retired in said grade on 1 Oct 16, with a one year time-in-grade waiver. We realize this is not the precise relief the applicant seeks on this point; however, in view of the fact the applicant did retire, we are not convinced it is appropriate to recommend additional constructive service to a date in the future when the applicant has all but ruled out an opportunity to be reinstated to active duty to continue to serve. Finally, with respect to the applicant’s request for the Board to recommend to the Secretary the lessons learned from his case be incorporated into CAPSTONE, we find this request is not within the scope of the Board’s authority. The Board’s authority is limited to the correction of records of the Department of the Air Force to reflect events as they would have unfolded were it not for the error or injustice suffered by an applicant and is not a policy making body. 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 his retirement decoration or orders) 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. His Officer Performance Report (for the period 14 Jun 12 – 13 Jun 13) be removed from the record and replaced with an AF Form 77 indicating that period of time was not rated. b. He met a Special Selection Board (SSB) for the CY13C Colonel Line of the Air Force (LAF) Central Selection Board (CSB) and was recommended for promotion; that upon Senate confirmation, the Secretary of the Air Force determined that he is to be granted the same date of rank, the same effective date for the pay and allowances of the grade to which promoted; and the same position on the active-duty list as he would have had if his name had not been removed from the CY12B Colonel LAF CSB. c. Upon Senate confirmation of his promotion to the grade of colonel, the applicant’s record should be corrected to reflect that he did not voluntarily retire from the Regular Air Force on 1 January 2014, but continued to serve on active duty, was promoted to the grade of colonel on 1 Oct 14, and that he voluntarily retired in said grade on 1 Oct 16, with a one year time-in-grade waiver. The following members of the Board considered AFBCMR Docket Number BC-2015-04820 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 02 Nov 15, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AF/A1P, dated 22 Feb 16. Exhibit D. Letter, AFBCMR, dated 26 Feb 16. Exhibit E. Applicant’s Rebuttal, dated 11 Mar 16. Exhibit F. ROI, SAF/IG, dated October 14.