RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-01562

XXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING: NO

APPLICANT REQUESTS THAT:

His letter of reprimand (LOR) be removed from his record.

His referral officer performance report (OPR) for the period ending 1 Aug 14 be removed from his record.

He receive special selection board (SSB) consideration for the CY2016 and CY2017 Colonel Promotion Boards.

APPLICANT CONTENDS THAT:

He was unfairly issued a LOR and referral OPR for driving under the influence (DUI).  The DUI incident was the direct result of a mental health issue he was suffering from and he was not fully culpable.  His commander should not have upheld the LOR due to the mitigating and extenuating factors.  Additionally, due process was not followed which resulted in his rights being infringed upon.

He was diagnosed with chronic stress and moderate depression due to a highly toxic work environment but was not diagnosed with a substance abuse disorder.  The diagnosis was the root cause of the DUI and it was not a willful or poor decision on his part.   He experienced significant stressors from 2011 to 2014.  The main contributing factor was working in a toxic environment.  He self-referred to mental health immediately after the DUI incident and was diagnosed with chronic stress and moderate depression.  This is an isolated incident with no previous records of misconduct.   

His former commander did not take action.  However, the acting commander issued him a LOR two weeks prior to his final court appearance after his former commander departed.  An unfavorable information file (UIF) was established and he received a referral OPR.  He was told the process was a matter of formality and was going to happen regardless of what points he made.  There was no due process since the conclusion was made before the process began and therefore the entire situation was unjust.  He was forced to concur on the referral OPR; however, he does not concur as he was never given feedback and he strongly disagrees with the “Does Not Meet Standards” in the area of judgment.  

After the final court date and discussions with mental health counselors, it was concluded he had “snapped” and lost rational control of his thoughts and actions that night.  His judgment was high- jacked due to his depressive and stressed state.    He was assigned to the District of Columbia metro area for more than 6.5 years.  The traffic and overall stressful culture started to wear on him.  He also witnessed numerous contractors and government civilians depart the division due to the toxic and chaotic work environment.  His chain of command misused the contractor workforce and engaged in unethical practices.  The key event which pushed him over the edge occurred on 13 Nov 13 when AFPC advised he would not be reassigned until the Oct 14 assignment cycle, although he was set on leaving as early as Mar 14.

He accepted responsibility for the incident and the related consequences.  He paid his dues with approximately $10,400 in personal costs.   The referral OPR is a permanent part of his record and continues to taint and cap his career. It continues to unjustly punish him for an incident well in the past and after due restoration occurred.  His new senior rater blindsided him with a “Do Not Promote” (DNP) recommendation for his in-the-promotion-zone (IPZ) promotion recommendation form (PRF) for the CY2016 Colonel’s board.  In an office call with his senior rater on 25 Jul 16, he was advised if the referral OPR was expunged, he would receive a “Definitely Promote” (DP) PRF recommendation.  

On 11 Jul 16, the evaluation reports appeal board (ERAB) denied his request for removal of his OPR.  It stated the board works under the assumption reports are accurate and objective.  The assumption is false.  The officers writing his OPR were following a checklist without adequate consideration of his situation.  The OPR was unfairly subjective and he had no genuine opportunity for appeal.  

It is stated it is not a one mistake Air Force and having a mental health issue is not a career killer provided one seeks proper help and treatment.  He requests the Board look beyond the referral OPR, with the bigger picture of his entire career, and remove the referral OPR.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a lieutenant colonel in the Air Force.  

The applicant received a referral OPR for the reporting period 27 Jun 13 to 1 Aug 14.  The reason for the referral report was a LOR on 15 Jul 14 for DUI.  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DP2SSM recommends denial for removal of the LOR.    The applicant’s LOR is not filed in the applicant’s automated records management system (ARMS) record or in his officer selection record (OSR); therefore, there is no LOR to remove.  The applicant’s unfavorable information file (UIF) would have been due to expire two years after the date issued, therefore the UIF would have been destroyed on the disposition date of 14 Jul 16 per AFI 36-2907, Unfavorable Information File.  The applicant also did not provide a copy of the LOR.   Lastly, the commander had the authority to issue and file the LOR per AFI 36-2907.  The complete advisory is at Exhibit C.

AFPC/DP2SPE recommends denial for removal of the referral OPR.  The applicant has not provided compelling evidence to show the report is unjust or inaccurate as written.  To void the report would remove accountability for the offense.

The applicant states his previous commander deliberately chose to take no action against him for the DUI but his successor issued the LOR and referral OPR.  Per AFI 36-2406, Officer and Enlisted Evaluations Systems, a rater should consider annotating conduct that is appropriate for comment.  In this case, the rating chain appropriately chose to comment and document the wrongdoing, which caused the report to be referred.  The decision made by his former commander to not impose administrative action does not disregard the authority of the subsequent commander to carry out such actions.  The evaluators were within their authority to comment on the underlying behavior, which caused the report to be referred.  The applicant provided a response in which he stated DUI was an extremely poor choice that could have resulted in a worse outcome and that he was very remorseful.  Consequently, the comment on the referral OPR is fair, accurate and in accordance with established guidance.  

The applicant filed an appeal through the ERAB; however, the board was not convinced there was an error or injustice. The complete advisory is at Exhibit D.

AFPC/DP2SP recommends denial for SSB based on the recommendation to deny removal of the referral OPR.  The complete evaluation is at Exhibit E.  

The BCMR Psychological Advisor recommends denial of the requests.  There is insufficient evidence he was not fully culpable of his DUI charge leading to an LOR and derogatory comment in his OPR.  

The applicant was under the influence of alcohol when he decided to operate a vehicle, which led him to receive a DUI, LOR and referral OPR.  These are negative consequences of his initial decision to drink.   It was under his control and free will, absence of any mind-altering substances.  There was no evidence in his medical records of any intellectual or neurological impairments that could affect his decision-making abilities and it presumably believed he is capable and responsible of making sound judgments that pertain to his safety and wellbeing.

He did not seek help when his stressors became too unmanageable but he began receiving mental health services after receiving a DUI.  He was never diagnosed with depression or mood disorders prior to his DUI.  The connotation behind his diagnoses was to indicate his anxiety and depressive symptoms were the result of his situational stressors such as occupation and then legal stressors complicated by his DUI.  

From 24 Feb 14 to 1 Aug 14, he received individual psychotherapy primarily to cope with depression, work stress and legal issues pertaining to his DUI.  He reported to have benefitted from treatment and the services were terminated due to his reassignment to Kirtland AFB, NM.  His diagnoses was adjustment disorder with depressed mood, anxiety disorder with mixed anxiety and depressed mood and occupational problem.    

He did not receive mental health services after his treatment was terminated in Aug 14.  He did receive mental health evaluations for deployment thereafter and was able to receive clearance to deploy, indicating he has no mental health conditions that may impact his ability to perform military duties. The complete advisory is at Exhibit F.   

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 20 Aug 18 for comment (Exhibit G), and the applicant replied on 28 Aug 18.   He disagrees with the AFPC/DP2SPE advisory.  The recommendation to deny removal of the referral OPR is solely by the book.  He asks the Board to consider the shades of gray.  Had he had more time and a few more mental health sessions before his official court date, he would have called in an expert mental health witness, which would have likely resulted in a lessened charge or even dismissal.  However, the speedy nature of his trial in which he was convicted of a first offense DUI prevented him from providing this information.   There was no intent on his part to drive while intoxicated.  He was not fully culpable for the incident.  

Overall, the strategic response from the Psychological Advisor is sound but it is mainly from an academic perspective.  By Jan 14, he knew he hated his assignment and the feeling had been building for many months.  In hindsight, he should have sought mental health services on 13 Nov 13 when he learned he would have to endure another 3 to 6 months due to being in a different assignment cycle.  The Psychological Advisor states there are many positive or negative ways for an individual to cope with depression and stress.  This is true.  He had recently injured his knee by using a treadmill during winter and his primary desired outlet of physical training was not available to him during this time.  He was deep into a depression spiral.  The Psychological Advisor also states that mental health conditions do not always cause or lead one to using substances but in his specific case for that specific night it did equate to using a substance, albeit not willingly.  There was no intent or desire to over consume.  

He was marginalized and avoided his chain of command and co-workers.  He sought to do his job to the best of his ability.  His contact with his co-workers was minimal and he did not have a wingman in the unit.  He would get into the office as early as 0500 and depart early at 1400 each day, 1300 when he was able to do PT to avoid his chain of command.  This was the situation he faced during this time.

His senior rater considered him as one of the top candidates last year but due to the referral OPR, any recommendation other than “DNP” would harm his credibility as a senior rater.  He made phones calls to AFPC on his behalf to recommend him for at least a “Promote.”  

There needs to be an opportunity for full and genuine redemption and an opportunity provided to recover from such an event.  Otherwise, he is continuing to be punished 4 years after the mental health related event.  The applicant’s complete response is at Exhibit H.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

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

3.   After thoroughly reviewing all Exhibits, it is the Board’s opinion the applicant is not the victim of an error or injustice.  The applicant contends he was not fully culpable of his DUI and that it was not a willful or poor decision on his part due to his diagnosis of chronic stress and moderate depression after his DUI arrest and therefore his LOR, and referral OPR should be removed and he should be granted SSB consideration for promotion to colonel.  However, we disagree.  It is our opinion the applicant displayed poor judgment when he chose to consume alcohol and drive while under the influence and was properly held accountable for his misconduct.  Moreover, we find no evidence the unfavorable personnel actions taken by his evaluators and commander were unjust or the referral OPR is inaccurate as written.  Furthermore, we note the applicant contends he was the victim of a toxic work environment and his chain of command engaged in unethical practices; however, other than his own uncorroborated assertions, we find no evidence this to be the case.  Therefore, we concur with the rationale and recommendation of AFPC/DP2SSM, AFPC/DP2SPE, AFPC/DP2SP and the BCMR Psychological Advisor and find that a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

4.  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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

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-2017-01562 in Executive Session on 9 Oct 18:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted not to correct the record.  The panel considered the following in Docket Number BC-2017-01562:

Exhibit A:	Application, DD Form 149, w/atchs, dated 10 Feb 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSM, dated 14 Nov 17.
Exhibit D: Advisory opinion, AFPC/DP2SPE, dated 22 Jan 18.
Exhibit E: Advisory opinion, AFPC/DP3SP, dated 13 Jul 18.
Exhibit F: Advisory opinion, BCMR Psychological Advisory, dated 16 Jul 18.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 20 Aug 18.
Exhibit E:	Applicant’s response, w/atchs, dated 28 Aug 18.

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