ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-03940-2

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXX
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The Board reconsider his request (amended) to: 

1. Expunge his referral Officer Performance Report (OPR) closing out 1 May 15 from his records.

2, Expunge his AF Form 709, Promotion Recommendation (PRF) for CY P0615B Colonel Central Selection Board (CSB), and replace it with a re-accomplished PRF reflecting an overall recommendation of “Definitely Promote.” 

3. Make any other corrections or personnel actions deemed appropriate, which would remove the negative impact of the 2015 OPR on opportunities for advancement and promotion.

3. His corrected record meet Special Selection Boards (SSBs) for all impacted selection boards.

4. If selected for promotion, he be retired in the rank/grade of colonel/O-6.

5. Approve permanent wear of the command insignia pin.

RESUME OF THE CASE

The applicant is a retired Air Force lieutenant colonel (O-5).  

On 22 May 19, the Board considered and denied his request to:

1. Expunge his referral Officer Performance Report (OPR) closing out 1 May 15 from his records.

2, Expunge his AF Form 709, Promotion Recommendation (PRF) for CY P0615B Colonel Central Selection Board (CSB), and replace it with a re-accomplished PRF reflecting an overall recommendation of “Definitely Promote.” 

3. His corrected record meet Special Selection Boards (SSBs) for all impacted selection boards.

4. Approve permanent wear of the command insignia pin.

5. His records reflect he did not separate from active duty (AD) on 31 Aug 15, retired 1 Sep 15, but on 31 Aug 15, he was ordered a permanent change of station (PCS) to his home of selection or home of record, pending further orders.

6. In the alternative:

a.	Reinstate 	him to AD in the rank/grade of colonel/O-6, with credit as a graduated squadron commander.
b.   Select him for Senior Developmental Education (SDE) in residence.
a.	Retire him in the grade of O-6, waiving associated Active Duty Service Commitment. (ADSC).
b.	Any other corrections or personnel actions deemed appropriate, which would remove the negative impact of the 2015 OPR on opportunities for advancement and promotion. 

The Board found the applicant was not the victim of an error or injustice.  The Board concurred with the rationale and recommendation of AFPC/DP3SP and found a preponderance of the evidence did not substantiate the applicant’s contentions.  The Board noted the 5 Apr 19 rebuttal letter contending the applicant presented substantial evidence of material errors and injustice, and that the AFPC/DP3SP advisory opinion failed to undermine the bases for the relief requested.  However, the Board also noted, and agreed with the 25th AF/CC, and USAF/JAA, 27 Jul 15 and 16 Nov 15, determinations that the actions taken in this matter by the 9th Medical Group Commander, and the 9th Reconnaissance Wing Commander were appropriate; and therefore recommended against correcting the applicant’s records.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit G. 

On 20 Apr 20, the applicant filed suit in the United States District Court for the District of Columbia seeking judicial review of the AFBCMR’s 22 May 19 decision under the Administrative Procedure Act (APA). 

On 30 Mar 22, the United States District Court for the District of Columbia after a judicial review of the AFBCMR Board’s 22 May 19 decision under the APA, remanded the case, opining the AFBCMR Board must demonstrate reasoned decision-making, including grappling with substantial issues and recording the reasoning involved, not just mere conclusions.  The Court instructed the AFBCMR Board respond to the following non-frivolous arguments:

1.	The applicant contends the Commander Directed Investigation (CDI) which labeled him as a “toxic leader,” was factually and legally insufficient.  The Court noted the applicant’s application included a variety of arguments about flaws in the CDI but believes the Board did not address any of those arguments; instead, it relied on the AFPC/DP3SP advisory that briefly noted the Group Commander’s conclusion the CDI substantiated the allegation of toxic leadership without any analysis and concluding it could not assess the legal sufficiency of the CDI (The CDI Report, to include the 9 RW/JA Legal Review is located at Exhibit I).   

2.	The OPR closing out 1 May 15, is an injustice given his career of superior performance.  His lengthy career of decorated service provided an independent reason to overturn/expunge the OPR from his records.  The Court noted the applicant argued during the administrative process that, because his previous ratings were so inconsistent with the 1 May 15 OPR, the Board had independent grounds to grant relief.  The applicant argued that even if the OPR was otherwise valid, his long history of superior performance was another reason to grant relief.  While the applicant did not make the argument in as much detail as possible, a fair reader would understand his argument, and there was no Board rule or principle of administrative law cited requiring more.  In support of this position, he relied on two previous Board decisions in which relief was granted in similar circumstances; citing and discussing AFBCMR Docket #s BC-1995-02759 and BC-2005-03320 (case documents are located at Exhibit I):  

a.	BC-1995-02759: On 24 Apr 17 the Board recommended the applicant’s Officer Performance Reports (OPRs) closing 29 Feb 92 and 28 Feb 93 be declared void and removed from his records, and he be reinstated in the Air National Guard.  It further recommended the applicant be considered for promotion to major by Special Selection Boards (SSBs) for Selection Boards convened on 1 Mar 93 and 7 Mar 94, respectively, and the recommendation of the SSBs forwarded to the AFBCMR so that all necessary and appropriate actions may be completed.  The Board noted statements by the applicant’s immediate supervisors during the contested rating periods indicated the performance reflected in the contested reports is inconsistent with their observance of his duty performance.  Additionally, the Inspector General (IG) found the OPR closing 29 Feb 92 was not prepared by the proper officials.  Therefore, the Board believed that any doubt as to the accuracy and fairness of the contested reports should be resolved in the applicant’s favor.  

b.	BC-2005-03320: On 23 Feb 06 the majority of the Board recommended denying the applicant’s request her OPR for the period ending 8 Jun 01 be voided and removed from her records, and she be directly promoted to colonel upon the removal of the contested OPR, or alternatively, she be promoted to colonel by an SSB.  The majority of the Board agreed with the opinion and recommendation of AFPC/DPPPE that Air Force policy is an evaluation report is accurate as written when it becomes a matter of record.  To effectively challenge an OPR, it is necessary to hear from all the members of the rating chain—not only for support, but also for clarification or explanation.  The applicant failed to provide any information or support from the rating chain on the contested OPR.  However, on 3 May 06, the Director, Air Force Review Boards Agency, after considering the rationale of the Board majority, agreed with the minority member that the applicant’s contested OPR should be voided, and she be considered for promotion to colonel.  In deciding this case, the Director noted statements provided from two senior colonels and a brigadier general questioning the rater’s integrity and attesting to his inability to treat the applicant fairly.  The Director went on to say that he believed the applicant’s overall record of performance prior to and after the contested report warrants resolving the benefit of any doubt in her favor.  Accordingly, he directed the contested OPR be voided, and the applicant’s corrected record be provided supplemental promotion consideration by a SSB.  

On 15 Jul 22, counsel, on behalf of the applicant, submitted a supplemental submission with an 8-page legal brief, a summary of the District Court judicial review, Remand Order - dated 30 Mar 22, a supplemental analysis on the issue at the heart of this case—the factual and legal sufficiency of the CDI, provided by a retired Air Force Judge Advocate.  The applicant’s complete submission is at Exhibit H.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Court ordered the AFBCMR Board to respond to the following non-frivolous arguments:

a.	The applicant contends the Commander Directed Investigation (CDI) which labeled him as a “toxic leader,” was factually and legally insufficient.  The Board reviewed the CDI (Findings, Analysis, and Conclusions) conducted 12 Feb 15 to 27 Feb 15, tasked to investigate the allegation: The 9 PSPTS/CC’s (applicant’s) leadership of the 9 PSPTS was toxic.  The Investigating Officer (IO) concluded the applicant’s leadership of the 9 PSPTS was toxic.  The Board concurred with this conclusion based on the interviews that indicated he did not treat people fairly and he is a toxic leader.  Additionally, the Board noted the 9 RW/JA Legal Review of this CDI, dated 5 Mar 15, finding the CDI was legally sufficient in that the IO complied with all applicable legal and administrative requirements in conducting the investigation.  The investigation report addressed all the matters under investigation, the findings were supported by a preponderance of the evidence, and the conclusions reached were consistent with those findings.  Additionally, the Board noted the retired Air Force Judge Advocate’s supplemental analysis of the factual and legal sufficiency of the CDI but were not compelled to discount the previous determination by the 25th AF/CC, and USAF/JAA the actions taken in this matter (CDI) by the 9th Medical Group Commander, and the 9th Reconnaissance Wing Commander were appropriate.  

b.	The OPR closing out 1 May 15, is an injustice given his career of superior performance.  His lengthy career of decorated service provided an independent reason to overturn/expunge the OPR from his records.  The applicant argued that even if the OPR was otherwise valid, his long history of superior performance was another reason to grant relief.  In support of this position, he relied on two previous Board decisions in which relief was granted in similar circumstances, citing, and discussing AFBCMR Docket #s BC-1995-02759 and BC-2005-03320.  Specifically, in the cited cases, relief was granted based on AFBMCR’s determination the OPRs comments were inaccurate in depicting the individual’s performance during the rating period.  However, the applicant’s Referral OPR closing out 1 May 15, Section IX. PERFORMANCE FACTORS rated – DOES NOT MEET STANDARDS, Section IV. Line 6 “Relieved of command; toxic leadership style degraded unit effectiveness; the CDI substantiated unhealthy org’l climate.”   The Board did not find the cited cases similar to this case; and determined the OPR closing out 1 May 15 was prepared properly in accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems.    

A commander’s obligatory conduct is outlined in Air Force Instruction (AFI) 1-2, Commanders Responsibility, and any behavior contrary to the established guidelines are prohibited.  Moreover, toxic leadership would naturally be the converse of a commander’s conduct and responsibilities, as defined in AFI 1-2.  

In this case, the applicant was relieved of command following an “egregious” allegation of “toxic leadership,” pending an investigation.  A recommended list of personnel was interviewed, along with personnel randomly selected from the squadron’s recall roster, ranging from airman first class (A1C) to Chief Master Sergeant (CMSgt), Major (Maj) to Lieutenant Colonel (Lt Col) and civilians.  An overwhelming consensus amongst those interviewed disclosed the applicant exhibited a toxic leadership style which was not conducive to furthering his tenure as commander.  It was duly determined by a preponderance of evidence the applicant was not trusted, was believed to be vindictive, and lowered morale through his actions.  As such, faith was loss in his ability to lead and he was permanently relieved of his position as commander.  The applicant’s removal was warranted because so many members under his command believed he was unapproachable and no longer credible.  Moreover, it is reasonable to believe over time those feelings could lead to significant mission degradation.  Specifically, through our review, we relied profoundly on 24 of the 31 witnesses, who negatively viewed the applicant’s leadership.  This made it evident that the applicant had not developed the art of command, due to the devastating lack of trust and confidence of those he commanded.  

While the applicant contends the CDI was improper, factually flawed, and inconsistent with Air Force regulations, the Board conducted an independent review of the CDI and find no evidence of an error or injustice in the substantiation of the allegation pertaining to applicant’s toxic leadership.  In this respect, the Board found the applicant violated Air Force standards and professionalism expected of a member fulfilling the role as Commander.  He had the responsibility to foster cohesion and trust, as well as, ensuring members were treated with dignity and respect.  He failed to do so and was rightfully removed from his commanding position.  

The applicant contents his contested OPR should be void because it relied on the CDI, which was factually and legally insufficient.  However, the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice.  We are not persuaded the contested OPR is inaccurate or that its contents violate governing directives.  The applicant’s contested OPR, contains the rating of “DOES NOT MEET STANDARDS,” in Section IV. RATER OVERALL ASSESSMENT and Line 6, reads, “Relieved of command; CDI substantiated toxic leadership; unhealthy organizational climate degraded unit effectiveness”.  This statement is a true and an accurate assessment based on the applicant’s substantiated CDI.  The actions taken by his rater were not determined to be arbitrary and capricious and did not exceed the rendered discretionary authority.  The applicant’s rater had the responsibility to ensure the members under the applicant’s command were no longer in a potential compromising situation.  As such, an investigation was requested which was later substantiated.  

In addition, we have noted the applicant’s contentions and his allegation that his contested OPR is not an accurate reflection of his overall performance.  While the applicant may believe this is the case, there is insufficient evidence provided by the applicant for us to believe that the OPR in question constitutes error or injustice by a preponderance of the evidence.  We further note, the applicant contends his previous ratings and long history of superior performance is inconsistent with his contested OPR.  While we find his documented history of service to be commendable, we are not persuaded by the evidence submitted to void his contested OPR.  A rater is tasked with evaluating an individual’s performance and accomplishments during the period for which the report is rendered, and not those which occurred outside of the rating period.  In addition, it is inherently impossible to comprise all accomplishments within a reporting period.  Therefore, a rater has the responsibility for assessing a member’s performance to the best of their ability.  In this case, it appears the evaluation was rendered appropriately and based on the rater’s observations of the applicant’s actual performance. 

The applicant cited two previous decisions by the AFBCMR to grant relief, essentially asserting the circumstances are significantly close enough that similar consideration should be applied to his case and relief be granted.  We note that each case presented before the AFBCMR Board is considered on its own merits and precedent does not bind the Board.  While the Board does strive for consistency in the way evidence is evaluated and analyzed; however, the Board is not bound to recommend relief in one circumstance simply because the situation being reviewed appears similar to another case. 

In the case of Docket Number BC-1995-02759, cited by the applicant, relief was granted.  Specifically, the applicant in this case requested the removal of two OPRs from his records, reconsideration for promotion to the Reserve grade of major; and reinstatement in the Air National Guard (ANG).  The Board granted relief for the removal of the applicant’s OPRs, consideration for promotion by a Special Review Board (SRB), and deferred the decision for reinstatement into the ANG.  The Board, based on the evidenced submitted, which included an Inspector General investigation, questioned the accuracy and fairness of the reports.  Once the applicant was recommended for promotion, the applicant and his counsel amended the applicant’s request, asking for language to be deleted from another OPR, along with making several other requests.  The Board granted the applicant’s request for the removal of the language in his contested OPR.  The Board determined it to be fair and equitable in granting the applicant’s additional request, based on the magnitude of the injustice. 

We further note in the case of Docket Number BC-2005-03320, cited by the applicant, the Air Force Review Boards Agency’s Director agreed with the Board minority that the applicant’s OPR in this case should be voided and supplemental consideration for promotion warranted.  It was determined to be highly unusual that the rater asserted the applicant was provided informal feedback on 14 occasions but made no adverse comments on the OPR and there was a lack of timeliness with respect to providing feedback.  More significantly, consideration was given to statements provided which questioned the rater’s integrity and attesting to the inability to treat the applicant fairly.  Due to these concerns, it was believed the OPR may not be an accurate depiction of the applicant’s performance at the time the OPR was rendered.  

The circumstances of these two cited cases differ from the case under review.  We note in the initial case of comparison, relief was granted because review of the evidence submitted, to include an IG investigation, substantiated the applicant’s performance reports accuracy and fairness were in question. In the instant case of the applicant’s report, it was written accurately.  The investigative report substantiated statements submitted from members of the applicant’s organization, which overwhelmingly validated the claims of toxic leadership.  We note in the second case of comparison, relief was granted because applicant’s rater’s integrity was in question.  In the instant case, while the applicant questions his rater’s judgement to remove him from his position, it was found that her actions were well within her discretionary authority.  Moreover, her integrity was never in question.  Her objective was to reserve mission degradation. Therefore, the applicant is not similarly situated to any of the cited cases and precedent is not a controlling issue in our decision on the instant case.  

Lastly, the applicant was not recommended for promotion during the period for which he was found to have lost the ability to lead as commander.  Specifically, the applicant received the rating, “DOES NOT MEET STANDARDS” for leadership skills based on his substantiated toxic leadership style, which was degrading the unit’s effectiveness.  Promotion criteria is based on demonstrating leadership, ability, and potential for service in the next higher grade.  More importantly, promotion is not rewarded for past performance.  It is the responsibility of the member’s immediate commander to make a promotion recommendation.  In this instance, the applicant’s commander made a thorough decision for not recommending him for promotion.  There were additional management level reviewers that also reviewed the PRF and concurred with the recommendation.  

Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-03940-2 in Executive Session on 10 Jan 23:

, Panel Chair
, Panel Member
, Panel Member
All members voted against correcting the record.  The panel considered the following:

Exhibit G:	Record of Proceedings, w/ Exhibits A-F, dated 22 May 19.
Exhibit H:	United States District Court for the District of Columbia Claims Order, dated
		 30 March 2022. 
Exhibit I	Applicant’s Resubmission, w/atchs, dated 15 Jul 22.
Exhibit J:	CDI Report Unredacted (WITHDRAWN)
Exhibit K	Cited Cases, BC-1995-02759 and BC-2005-03320.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.