RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 				DOCKET NUMBER: BC-2015-05096
							COUNSEL:  

							HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

1.  The Officer Performance Report (OPR) for the period 5 June 2009 through 1 June 2010 be removed from his record.

2.  He receive a direct promotion to the grade of lieutenant colonel (O-5), be reinstated to active duty, and any indication of being passed over for promotion be removed from his record.

3.  In the alternative he receive Special Selection Board (SSB) consideration for the following Calendar Year (CY) Lieutenant Colonel Central Selection Boards (CSB) with two “Definitely Promote” ratings utilizing new Performance Recommendation Forms (PRF) included in his submission:

a. CY 2010A [P0510A In-the-Promotion Zone (IPZ)] 
b. CY 201lA [P0511A Above-the-Promotion Zone (APZ)] 

APPLICANT CONTENDS THAT:

In July 2012, following the applicant’s initial Air Force Board for Correction of Military Records [Board] decision (BC-2011-04038), it was directed that derogatory information from the applicant’s records be removed and that his corrected records meet two SSBs (Exhibit B).  However, despite the corrections, and enthusiastic endorsements for “Definitely Promote” ratings from his former senior raters’, he was not selected for promotion to the grade of lieutenant colonel and the lingering adverse effects of the initial error have irrevocably tarnished his records.  Although the Board directed a correction to the applicant’s records, there is no way an SSB could objectively view his damaged record with severely diminished responsibilities, stripped credentials, and no end-of-tour medal.  Were it not for the erroneous security allegations, the applicant would have received a “Definitely Promote” rating for the P0510A IPZ board to lieutenant colonel.  The selection rate for Air Force members who received a “Definitely Promote” rating for this board was 99.7 percent.  Based on the applicant’s exemplary record prior to the period in question, and his former senior rater’s confirmation that he would have given the applicant a “Definitely Promote” rating in competition with the original pool of eligible majors, it is highly probably the applicant would have been selected for promotion to the grade of lieutenant colonel. 

Following the applicant’s discharge, his former JIEDDO senior rater determined he should have received a “Definitely Promote” rating for his P0510A IPZ PRF.  In addition, despite the United States Strategic Command (USSTRATCOM) senior rater’s petition that the applicant receive a “Definitely Promote” rating for the P0511A APZ, naming him “#1 DP to O-5,” the applicant received a “Promote” rather than a coveted “Definitely Promote” for his APZ SSB.  In addition, now that the referral OPR was removed by the Board’s direction, the top OPR in the applicant’s records is the contested OPR that includes his job description as “Special Assistant” to the Operations Group Commander.  Not only is the title disparaging, the fact that the JIEDDO senior rater’s PRF was written during the same period, caused confusion to anyone viewing his record.  In view of the above, direct promotion is the most reasonable solution to correct the lingering negative effects resulting from the false allegations.  The Board has previously used “direct promotion” to correct particularly difficult injustices similar to those of the applicant.  In the alternative, he implores the Board to direct the applicant’s corrected record be considered by SSBs for the CYs 2010A and 201lA Lieutenant CSBs with “Definitely Promote” ratings utilizing new PRFs included in his submission.

Counsel’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 6 June 1996.

The applicant received a referral OPR for the period 2 July 2008 through 4 June 2009.

On 13 June 2011, the applicant was notified of his nonselection for promotion by the CY 20llA Lieutenant Colonel CSB and establishment of a 30 November 2011 mandatory separation date based on his being twice deferred for promotion.

On 19 October 2011, the applicant submitted a DD Form 149, Application for Correction of Military Record, arguing that the referral OPR he received while working for JIEDDO was unjust.  Therefore, he requested (1) his OPR for the period 2 July 2008 through 4 June 2009, and his IPZ PRF be removed from his records; (2) he be reinstated onto active duty at his last duty station; and (3) he be directly promoted to the grade of lieutenant colonel, or his corrected records meet an SSB for the grade of lieutenant colonel using his one year Below-the-Primary Zone (BPZ) PRF.

On 30 November 2011, the applicant was discharged from the Regular Air Force in the grade of major (O-4).  His narrative reason for separation is “Non-selection, Permanent Promotion,” and he was credited with 15 years, 5 months, and 25 days of active service.

On 12 July 2012, the Board considered and denied the applicant’s request for direct promotion to the grade of lieutenant colonel.  However, based on the Board’s recommendation to grant relief, it was directed that any references to the Letter of Reprimand and associated Unfavorable Information File be removed from his records.  The Board also directed removal of the referral OPR for the period 2 July 2008 through 4 June 2009 and a PRF (with a “Do Not Promote” rating) prepared for the CY 2010A Lieutenant Colonel CSB.  It was further directed his corrected records be considered for promotion to the grade of lieutenant colonel by SSBs for the CYs 2010A and 201lA Lieutenant Colonel CSBs utilizing his PRF [with a “Promote” rating] from CSB P0509B with appropriate changes to the promotion zone and board information, and if selected, his records be corrected to show that he was not released from active duty on 30 November 2011, but on that date he was retained on active duty.

AF Form 77, Letter of Evaluation, dated 2 October 2012, indicates the applicant was not rated for the period 2 July 2008 through 4 June 2009, and the report was removed by Order of the Secretary of the Air Force.

In a memorandum to USSTRATCOM/J1 dated 16 May 2013, the applicant’s former senior rater for the P0511A APZ PRF promotion board stated that a now removed referral OPR previously prevented him from recommending the Management Level Review (MLR) allocate the applicant a “Definitely Promote” rating.  However, since the Board directed the OPR be removed, he strongly recommended the MLR allocate the applicant a “Definitely Promote” rating.

In a letter dated 25 October 2013, the MLR president notified the applicant that after scoring the records, his Officer Selection Record (OSR) did not tie or beat the bottom “Definitely Promote” benchmark record as required by AFI 36-2406, Officer and Enlisted Evaluation Systems, paragraph 8.7.  Therefore, his record did not warrant an upgrade to a “Definitely Promote” rating.

In an undated memorandum to the MLR President, the former senior rater and ML for the applicant’s P0510A IPZ PRF stated that were it not for the derogatory information that has since been removed from the applicant’s records, he would have allocated a “Definitely Promote” rating to the applicant in competition with the original pool of eligible majors.  The P0510A IPZ PRF prepared by the senior rater indicates “My #1 Jnt 0-4--multi-talented warrior, leader, mentor, scholar; a must for promotion, then Sq Cmd and in-res IDE!”  Item IX (Overall Recommendation) did not indicate a selection.  It appears this memorandum was not forwarded to the MLR President.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C-E.

AIR FORCE EVALUATION:

AFPC/DP3SP recommends denial of the applicant’s request to void his OPR for the period 5 June 2009 through 1 June 2010 and modify the PRF rendered for the P0510A IPZ board indicating there is no evidence of an error or an injustice.  The applicant’s Military Personnel Data System (MilPDS) duty history reflects that he was assigned to the 11th Operations Group from 21 July 2009 through 30  September 2010, which is the same unit reflected in the applicant’s OPR for the period 5 June 2009 through 1 June 2010.  In addition, the applicant provided a memorandum from the rater, which confirms he was assigned to the unit and indicated the applicant was unable to perform at a level commensurate with his rank due to an ongoing security investigation; however, the rater explained he performed at his full potential considering the circumstances.  The OPR in question is not a referral report and makes no mention of the applicant’s investigation.  Furthermore, the applicant neglected to provide a memorandum from the Additional Rater/Reviewer.

The applicant also contends that the senior rater and MLR President's review of the IPZ Supplemental MLR (SMLR) utilizing the corrected information indicates he should have received a “Definitely Promote” rating on his PRF.  He states despite the support of his senior rater and the MLR Board President he received a “Promote” rather than a coveted “Definitely Promote” for his APZ SSB.  In viewing the applicant's record, he met an SMLR utilizing the corrected PRF.  When the SMLR convened, the applicant was given the overall recommendation of “Promote.”  According to AFI 36-2406, the applicant's OSR must tie or beat the bottom “Definitely Promote” benchmark in order to be recommended for an upgrade to a “Definitely Promote” rating.

A complete copy of the AFPC/DP3SP evaluation is at Exhibit C.

AFPC/DP2SP recommends denial of the applicant’s request for direct promotion to the grade of lieutenant colonel indicating there is no evidence of an error or an injustice.  However, if corrections are made to the applicant’s record they recommend his records be given SSB consideration.  The applicant has two nonselections for promotion to the grade of lieutenant colonel by the P0510A IPZ and P0511A APZ CSBs.  The results of the CSBs were based on a complete review of the applicant’s entire selection record, assessing whole person factors such as job performance, professional qualities, depth and breadth of experience, leadership, and education.  Although an officer may be qualified for promotion, he may not be the best qualified over other eligible officers competing for the limited number of promotion vacancies in the judgment of a selection board vested with discretionary authority to make such selections.  To grant a direct promotion would be unfair to all other officers who have competitive records, but were not promoted.  There is no guarantee that the applicant would have been promoted had the error not existed.

During the applicant’s continuation board, the Secretary of the Air Force advised the board members that majors who will have 15 years as of 7 March 2011 should normally be continued.  Officers not within five years could be recommended for continuation, but only if the board determined that continuation was clearly in the best interest of the Air Force.  The applicant’s record was reviewed by the continuation board and since he did not have 15 years as of 7 March 2011, the board determined that the applicant did not warrant being retained on active duty.

A complete copy of the AFPC/DP2SP evaluation is at Exhibit D.

AFPC/DP2STM states this advisory is for informational purposes only and will address the aspects surrounding the applicant’s discharge from the Air Force.  According to documentation found in the applicant’s master personnel records, his commander notified him on 13 June 2011, that he was considered but not selected for promotion by the CY 2011A Lieutenant Colonel CSB.  According to AFI 36-3207, Separating Commissioned Officers, a mandatory discharge from the Air Force is required for officers who are twice non-selected for promotion to the grades of captain (O-3), major, and lieutenant colonel.  Therefore, the applicant’s discharge is correct and in accordance with Department of Defense and Air Force instructions.  In order to remove the discharge, the Board would have to remove all the contributing factors that led to the discharge.

A complete copy of the AFPC/DP2STM evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The AFPC/DP3SP advisory is badly flawed by the assertion that there was no error in his record because his MilPDS duty history reflects he was assigned to the 11th Operations Group [11th Wing], from 21 July 2009 through 30 September 2010.  However, they did not furnish a screen-capture of the MilPDS entry they cite as evidence.  He was detailed to the 11th Wing awaiting the outcome of an investigation; however, he was never officially assigned to the 11th Wing and remained a JIEDDO asset.  Nevertheless, during this period, the 11th Wing prepared his OPR and JIEDDO prepared his P0510A PRF for the same period, which created confusion that effected his chance for a “Definitely Promote” rating.  His record is so tainted that a direct promotion is the only reasonable option.  However, AFPC/DP2SP argues that “granting a direct promotion would be unfair to all other officers who have competitive records but did not get promoted.”  Nevertheless, the advisory cannot dispute his earned “Definitely Promote” rating from the JIEDDO senior rater for his P0510A IPZ board.  This rating grants him a 99.7 percent chance of promotion based on P0510A historical statistics.  He has already waited 5 years to correct what he rightly earned.  AFPC/DP2SP suggests the Board offer relief through SSBs; however, the SSB process will take upwards of two years and build on a fabrication that his “true” unit was the 11th Wing.  A fair and logical path to an SSB solution is to retroactively reinstate him, accept the JIEDDO senior rater’s valid awarding of an IPZ “Definitely Promote” rating, place a “Definitely Promote” on the APZ PRF, and remove the contested OPR.  The only reliable way to accomplish this is a direct promotion.

Counsel also provides a rebuttal reiterating arguments included in his initial brief.  In addition, counsel states that numerous senior officers associated with the case stand with the applicant.  Prior to the false allegations, the applicant had a stellar record and was directly responsible for saving thousands of American and Allied warfighters.  His actions were recognized and he was selected as the Intelligence, Surveillance, and Reconnaissance Officer of the Year at the Office of the Secretary of Defense.  His exceptional evaluations marked him for early promotion and advancement well into the senior ranks.  With his record properly sanitized, promotion to the grade of lieutenant colonel appears guaranteed.  Therefore, the Board should grant a direct promotion and reinstate the applicant to active duty.

In further support of his request, counsel provides the applicant’s response, copies of emails, personnel briefs, and various other documents related to the applicant’s appeal.

Counsel’s complete response, with attachments, is 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.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting corrective action for the following requests:

a. Counsel argues that the OPR for the period 5 June 2009 through 1 June 2010 should be removed because the applicant was never officially assigned to the 11th Wing, and that his duty title “Special Assistant” implies he was a mediocre performer.  However, we disagree.  While the applicant’s MilPDS duty history does not indicate he was officially assigned to the 11th Wing, the JIEDDO Chief of Staff reassigned the applicant pending the outcome of an investigation.  Therefore, it makes sense the applicant’s rater during this period would also be assigned to the 11th Wing.  In addition, after reviewing the evidence provided, including the supporting statement from the rater of the contested report, we are not persuaded that the report is an inaccurate or unjust assessment of the applicant’s performance as rendered.  Furthermore, we note the OPR is not a referral report and makes no mention of the applicant’s investigation.  Therefore, we find no compelling basis to favorably consider the applicant’s request to remove the contested report from his record. 

b. Counsel argues that a direct promotion to the grade of lieutenant colonel in the only reasonable solution to correct the lingering affects resulting from false allegations.  However, we find no evidence to warrant the applicant’s direct promotion through the correction of records process.  In this respect, the Board observes that officers compete for promotion under the whole person concept whereby many factors are carefully assessed by selection boards.  An officer may be qualified for promotion but, in the judgment of a selection board vested with the discretionary authority to make the selections, may not be the best qualified of those available for the limited number of promotion vacancies. Therefore, in the absence of evidence that he would have been a selectee had his folder reflected the recommended change, we believe that a duly constituted selection board, applying the complete promotion criteria, is in the most advantageous position to render this vital determination, and that its prerogative to do so should only be usurped under extraordinary circumstances. Counsel asserts, in essence, that based on the irreparable harm to the applicant’s career, his appeal is similar to numerous other AFBCMR cases (BC-1992-02810, BC-1993-00015, BC-1996-01097, BC-1998-03336, BC-1999-00789, BC-2000-02286, BC-2001-03128, BC-2002-00938, BC-2002-03195, BC-2003-03023) and that relief is warranted using the same rationale for a direct promotion to the grade of lieutenant colonel.  However, we note that every case before this Board is considered on its own merit since the circumstances of each case are seldom identical.  We have reviewed the facts in the cases provided by counsel and find the circumstances of the cases to be distinguishable, and that no facts are provided which reinforce the applicant’s request for a direct promotion the grade of lieutenant colonel.
 
c. In the alternative, counsel implores the Board to grant the applicant SSB consideration for the P0511A APZ with a “Definitely Promote” rating.  Counsel argues that despite the fact the senior rater petitioned for a “Definitely Promote” rating for the P0511A APZ, the applicant only received a “Promote” for his APZ SSB. However, as pointed out by AFPC/DP3ST, the applicant’s record was appropriately reviewed by an SMLR and it was determined a change in the “Promote” rating he received was not warranted.  Although the applicant’s senior rater believed he deserved a “Definitely Promote” rating, the applicant was obviously not the best qualified of other eligible officers competing for the limited number of “Definitely Promote” ratings in the judgment of the SMLR vested with discretionary authority to make such selections. 

In view of the foregoing, we agree with the recommendations of the appropriate Air Force offices of primary responsibility and adopt the rationale expressed as the basis of our decision that the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice for this portion of his request.

4.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant SSB consideration for the P0510A promotion board.  In this respect, we note that the applicant’s Senior Rater and ML for the P0510A PRF was authorized to allocate a “Definitely Promote” rating and following a review of the applicant’s records, he specifically stated, “Comparing [Applicant's] record to the officer to whom I awarded the DP originally, I concluded that I would have granted him [applicant] a DP on his PRF.”  However, it appears this memorandum was never forwarded to the MLR President.  In view of the foregoing, we believe our recommendation constitutes full and fitting relief and we recommend the applicant’s records be corrected to the extent indicated below.

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 his AF Form 709, Promotion Recommendation, prepared for the Calendar Year (CY) 2010A Lieutenant Colonel Central Selection Board (CSB), be declared void and removed from his record and the attached AF Form 709 be accepted for file in its place.

It is further directed that he be considered for promotion to the grade of lieutenant colonel by a Special Selection Board for the CY 2010A Lieutenant Colonel CSB, with inclusion of the attached, corrected AF Form 709, and if selected, his records be corrected to show that he was not released from active duty on 30 November 2011, but on that date he was retained on active duty.

The following members of the Board considered AFBCMR Docket Number BC-2015-05096 in Executive Session on 15 June 2017 and 6 December 2017, under the provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The following documentary evidence was considered:

Exhibit A.  DD Form 149, dated 4 December 2015, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, AFPC/DP3SP, dated 24 June 2016.
Exhibit D.  Memorandum, AFPC/DP2SP, dated 29 August 2016.
Exhibit E.  Memorandum, AFPC/DP2STM, dated 31 August 2016.
Exhibit F.  Letter, AFBCMR, dated 5 October 2016.
Exhibit G.  Letter, Counsel, 2 November 2016, w/atchs.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.