RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00679

XXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His referral Officer Performance Report (OPR), for the period 16 Jun 13 thru 7 Jul 14, be corrected to include the rebuttal documents or the OPR be declared void. 

APPLICANT’S CONTENTIONS

The documents that he submitted in accordance with Air Force Instruction (AFI) 36-2406, Officer and Enlisted Evaluation System, and in response to the referral OPR are not included in his official military record, thus denying him due process.  Furthermore, the attachments included results of a Unit Climate Assessment and a note from a brigadier general, which contradicts his rater’s assessment. These documents prove that his rater did not properly document his performance in accordance with AFI 36-2406, paragraph 1.12.4.1.1, which states “raters must ensure that information relied upon to document performance, especially derogatory information relating to unsatisfactory behavior is reliable and supported by preponderance of evidence.”  As such, the missing documents highlight the failure of due process and the requirements to support the evaluation based on the evidence.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 30 Jun 14, the applicant was notified of his commander’s intent to impose nonjudicial punishment (NJP) pursuant to Article 15 for failure to obey an order or regulation, in violation of Article 92, Uniform Code of Military Justice.  Specifically, between on or about 1 Jul 12 and 30 Apr 14, he failed to comply with requirements of AFI 36-2706, Equal Opportunity Program Military and Civilian, paragraph 1.1, by engaging in verbal and physical conduct such that he created a hostile working environment within the squadron; and on or about 26 Oct 12, unlawfully touched [a female] on her buttocks with his hand.    

On 7 Jul 14, the applicant waived his right to court-marital and  elected to attach a written presentation.   

On 7 Jul 14, the applicant’s commander issued him a commander directed referral OPR for the period of report 16 Jun 13 through 7 Jul 14.  The referred report was a result of the violations listed in the Article 15.  On that same day, the applicant responded to the referral OPR.  In his response, he listed three attachments, which include an FSS Year in Review Speech, Unit Climate Assessment Results, and a note from a brigadier general.  While the response is in the applicant’s military human resource record (MHRR), the attachments are not included.

On 11 Jul 14, the applicant’s commander finalized her decision regarding the NJP and found that the applicant was guilty of one or more of the offense alleged.  For these violations, the commander imposed the punishment of a reprimand and a forfeiture of $2,500 pay per month for two months.  

On 15 Jul 14, the applicant accepted the NJP and decided not to appeal.  In addition, he acknowledged final receipt of his referral OPR.    

The applicant filed an appeal with the Evaluation Reports Appeal Board (ERAB).  While the ERAB was not convinced of an error or injustice to void the contested OPR, the ERAB approved the applicant’s request to place his rebuttal documents as an attachment to the OPR in his official record.  

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

AIR FORCE EVALUATION

AFPC/DP3SP, recommends denying the application. The applicant received the referral OPR for creating an intimidating and hostile work environment for which he was relieved of command and accepted NJP.  The applicant filed an ERAB application, but the ERAB was not convinced of an error or injustice and denied the applicant’s request to void the OPR.  However, the ERAB did approve the applicant’s request to include his rebuttal documents as an attachment to the OPR in his permanent record.  While the applicant states, “the documents are mandated to be included but the AF has not added them to the official record,” he has not provided said documents and therefore the attachments have not been added to the applicant’s official record.  In addition, the applicant claims that he never received any feedback from his rater.  However, lack of formal feedback in itself is not a valid basis for voiding a report as day-to-day and/or informal feedback normally occurs.  Furthermore, feedback is a shared responsibility of both the rater and ratee.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 27 Jul 20 for comment (Exhibit D), and the applicant replied on 15 Sep 20.  In his response, the applicant contended that AFPC/DP3SP contradicts themselves by stating that he submitted a rebuttal to his OPR, but then asserts that he has not provided the documents to be included as part of his official record.  In this regard, the applicant alludes to the fact that his rebuttal documents should have been included with his OPR when it originally became a matter of record.  He also states, that if he had a copy of the rebuttal documents he would have included them with his submission; however, since he does not and the originals were not included, then the next viable course of action is to void the OPR in question.  The applicant’s complete response is at Exhibit E.

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 recommendation of AFPC/DP3SP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  While the Board questioned why the applicant's record did not include the rebuttal OPR attachments, they note that the applicant did not provide a copy of said documents and do not find sufficient evidence to warrant voiding the OPR.  As such, should the applicant provide the missing attachments, he can request they be uploaded to his military human resource record per the ERAB's 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-2020-00679 in Executive Session on 22 Oct 20:

, 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 7 Jan 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP3SP, dated 26 Jul 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 27 Jul 20.
Exhibit E:	Applicant’s response, dated 15 Sep 20.

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.