RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04910

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  Her Officer Performance Reports (OPRs) for the periods 17 April 2014 – 16 April 2015 and 17 April 2015 – 16 April 2016 be voided and removed from her record.  
 
2.  She be given Special Selection Board (SSB) consideration by the Calendar Year 2017D (CY17D) (P0617D) Colonel Line of the Air Force (LAF) Central Selection Board (CSB), and if selected be retired in the grade of O-6.   

APPLICANT’S CONTENTIONS

In a 4-page legal brief, the applicant through counsel contends the following: 

The aforementioned OPRs are unjust and in violation of AFI 36-2406, Officer and Enlisted Evaluation Systems, because the rater based his rating and stratification on the applicant’s duty assignment and the mission of her squadron rather than her overall performance.

Her OPRs, while not referrals, are unremarkable and unjust as they lacked stratifications and future command pushes.  

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

STATEMENT OF FACTS

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

On 28 May 1997, the applicant initially entered the Air Force.

On 13 June 2014, the applicant became a squadron commander.

According to documentation submitted by the applicant:

She was selected as the 2015 Air Combat Command Lance P. Sijan Leadership Senior Level Award winner, and her wing’s 2014 Tuskegee Airman Award nominee.

On 3 April 2015, an email trail between the applicant and her senior rater discussed an OPR “push line” of sending her to get a PhD, then back to the Air Force Academy as an instructor.  The senior rater’s concern/hunch that this type of push line might convey she was not cut out for command.  The applicant opined and senior rater agreed to leave out PhD and USAFA entirely, and go with canned push line: “…send SDE, OG/CC next.”

On 14 March 2016, the applicant received positive midterm feedback (AF Form 724) from her rater.  

On 16 June 2016, the applicant filed an informal Equal Opportunity (EO) complaint, alleging sexual discrimination against her rater.  The complaint was later converted to a formal complaint and appealed up to SAF/MRB.  Ultimately, the findings did not substantiate sexual discrimination.  However, her rater’s comments within the investigation revealed the applicant’s squadron was the smallest in the group, was drawing down, and her unit’s mission was not as busy as the other squadron’s mission.  

On 16 October 2017, the applicant was non-selected for promotion to O-6 by the CY17 promotion board.  

In December 2018, the applicant filed an appeal with the Evaluation Reports Appeal Board (ERAB) to void the OPRs contending her rater applied non-performance criteria to her evaluations that denied the Management Level Review (MLR) and promotion boards a reliable objective assessment of her performance.  

On 19 March 2019, the ERAB denied relief, citing the board works under the assumption that evaluation reports are accurate and objective, and they were not convinced the original report was unjust or wrong. 

On 19 July 2019, it was determined a Letter of Reprimand (LOR) imposed on the applicant would be filed in her Officer Selection Record (OSR).  

According to an AFIT/CL memorandum dated 18 September 2019, on 17 September 2019, as an exception to policy, it was determined the applicant’s LOR should be downgraded to a Letter of Counseling and remain in her Unfavorable Information File (UIF) in accordance with  AFI 36-2907, Unfavorable Information File (UIF).  Furthermore, as an exception to policy, it was directed that the applicant’s LOR be removed from her OSR per AFI 36-2608, Military Personnel Records System.

On 30 September 2019, per Special Order AC-010099, dated 19 September 2019, the applicant was relieved from active duty and retired effective 1 October 2019, in the grade of O-5.  She was credited with 22 years, 4 months, and 3 days of active service for retirement.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and D.

AIR FORCE EVALUATION

AFPC/DP3SP recommends denying the applicant’s request to void and remove the contested OPRs, indicating that based on analysis of the facts and documentation provided, the applicant has provided insufficient evidence to substantiate an error of injustice in regards to the contested OPRs.   

The applicant contends the contested OPRs, although not referrals, were unremarkable and unjust as they lacked stratifications and future command pushes.  In accordance with AFI 36-2406, stratification statements, when authorized, are not mandatory.  The omission of stratification does not constitute an error or injustice.  An evaluator may remove or change a stratification at any point during the drafting process of an evaluation.  Additionally, Developmental/Professional Military Education and assignment/job/command pushes are also optional statements.  

The applicant filed an ERAB application to void the subject OPRs.  The ERAB was not convinced of an error or injustice based on the evidence provided and denied the applicant’s request to void the OPRs.  Additionally, the applicant filed an EO complaint, alleging that sexual discrimination by her rater resulted in an unfavorable performance report for the period 17 April 2015-16 April 2016; her wing EO office found her complaint was unsubstantiated.  

The complete advisory opinion is at Exhibit C.

AFPC/DP2SP recommends denying the applicant’s request for SSB consideration by the CY17D Colonel LAF CSB.  The applicant was non-selected to the grade of O-6 by the CY17D In-the-Promotion Zone (IPZ) CSB.  She contends her OPRs for the periods ending 16 April 2015 and 16 April 2016 were unjust as her rater based his rating and stratifications on her duty assignments and mission of her squadron rather than her overall performance.  They are relying on the opinions of other Air Force experts, in this case, HQ AFPC/DP3SPE [sic], Promotions, Evaluations, and Recognitions Branch.  That office concluded the applicant has provided insufficient evidence to substantiate an error or injustice in regards to the contested OPRs and recommends the AFBCMR deny the applicant’s request to void the contested OPRs.  

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 12 August 2020 for comment (Exhibit E), and the applicant replied on 31 Aug 2020.  In her response, the applicant, via counsel, stated since the AFPC/DP2SP advisory adopts the advisory opinion of AFPC/DP3SP, this response only replies to the advisory opinion of AFPC/DP3SP.  The applicant contends the advisory opinion fails entirely to analyze any facts or evidence presented, that it appears to be a template response.  The subject OPRs were an injustice, where her stratification was based on her position, not her performance, violating AFI 36-2406, and should be removed from her records.  The response closes by stating the applicant should be retroactively promoted to colonel, awarded constructive time in that grade for 3 years, and be retired as a colonel.  Alternatively, she should be given reconsideration by an SSB after both subject OPRs are removed; and if promoted, retired as a colonel, with constructive credit for 3 years of service.  

The applicant’s complete response is at Exhibit F.

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 concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendations of AFPC/DP3SP and AFPC/DP2SP, and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  As noted in AFI 36-2406, stratification statements, when authorized, are not mandatory, and the omission of stratification does not constitute an error or injustice.  Under the presumption of regularity, it is the supervisor’s call on stratification push, and the applicant has not provided strong evidence to overcome the presumed validity of the OPRs in question.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2019-04910 in Executive Session on 2 September 2020 and 20 November 2020:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 8 November 2019.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP3SP, dated 26 July 2020
Exhibit D:	Advisory opinion, AFPC/DP2SP, received 10 August 2020
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 12 August 2020.
Exhibit F:	Applicant’s response, dated 31 August 2020.

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.