RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00975

XXX XXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Remove the 2017D Promotion Recommendation Form (PRF) from his records.

Void the comments in Section IV of the PRF and “Do Not Promote” (DNP) and change the overall recommendation to “Promote”.

A Special Selection Board (SSB) consider him for promotion.

He be promoted. 

APPLICANT’S CONTENTIONS

He received a “Do Not Promote” promotion recommendation.  In response, on 1 Dec 17, he filed a Grievance of Redress of under Article 138, Uniform Code of Military Justice (UCMJ).  The applicant alleged the commander/senior rater (SR) should not have included any flying downgrade comments on his PRF since the comments did not reflect the entire situation.  He also contends his commander included a Letter of Counseling (LOC) on the PRF that had not been filed in an unfavorable information file.  

On 21 Dec 17, he was notified that his concerns would be more properly addressed by the Evaluation Report Appeals Board (ERAB) and that he could submit a formal complaint to the General Court Martial Convening Authority (GCMCA).  

On 9 Jan 18, he filed a complaint of reprisal against his commander with the Office of the Inspector General (IG) alleging his commander reprised against him by including the LOC from a previous installation and alleging some of the comments included on his PRF were not specific.  

On 1 Feb 18, he filed an Article 138, UCMJ, complaint to the GCMCA, in response to his commander’s failure to respond to this original Article 138 complaint.  In this complaint, he alleged the SR referenced items on his PRF before they were a matter of record and failed to be specific; additionally, he referenced an LOC from a previous installation.  The applicant also complained the commander failed to grant relief for his Article 138 and directed his appeal to the ERAB.  On 28 Feb 18, the GCMCA responded and directed his complaints to the ERAB and the Air Force Board for Correction of Military Records.

On 16 May 18, the commander was relieved of command for loss of trust and confidence and his ability to lead.  On 4 Oct 18, the Air Force Times published an article referencing the Commander Directed Investigation (CDI) and noted the commander’s anger and intimidation of Airmen rose to the level of inflicting psychological abuse that degraded or insulted members of his command.  The applicant contends it is not unreasonable to assume his commander may have failed to be an objective, accurate or fair SR when evaluating his promotion potential. 

The applicant contends AFI 36-2406, section A2.6.1 provides a material error in the PRF itself, substantive changes to, or a material error may justify changes to the PRF.  Normally comments are required from the SR, unless unavailable.  Since the commander was relieved of command, he requests the Board allow the Management Level Reviewer (MLR) president to act in the SR capacity.

He contends his non-selection for promotion was a result of the unjust PRF and thus his record should be reviewed by a special selection board and he be duly promoted.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a currently serving captain (O-3).

Documentation submitted by the applicant reflects he received a “Do Not Promote” promotion recommendation for promotion Board P0417D.  

On 26 May 18, the applicant was notified his reprisal concerns, listed below as Issues 1-9, were forwarded to the Office of the Inspector General of the Secretary of the Air Force (SAF/IGQ) for evaluation.  

Issue 1:  Failure to provide consistent check rides support measures through unfair mission scheduling of aircrew.  Referred to the Operations Group commander for resolution, which resulted in a Commander Directed Investigation.  

Issue 2:  Check ride evaluator transcribed inconsistent information and omitted relevant information and included factual errors.  Referred to the Operations Group commander for resolution, which resulted in a Commander Directed Investigation.

Issue 3:  Check ride evaluator acted in an unprofessional and harassing manner during the applicant’s requalification check ride debrief.  Referred to the Operations Group commander for resolution, which resulted in a Commander Directed Investigation.

Issue 4:  Non-specific statement on of a Do Not Promote PRF.  The referenced comment on the PRF is specific and time-bound when compared to examples cited in AFI 36-2406. Dismissed.

Issue 5:  Improper use of LOC to support DNP PRF.  An Art 138 was filed addressing the same concern and included avenues for appropriate redress through the ERAB and GCMCA.  Dismissed.

Issue 6:  Included two pending Q-3 flight evaluation downgrades to support DNP PRF. An Art 138 grievance was filed addressing the same concern.  Dismissed.

Issue 7:  Failure of squadron commander to consistently apply fair treatment. An Art 138 grievance was filed addressing the same concern.  Dismissed.

Issue 8:  Improper influence from former squadron commander on the wing commander to mark DNP on PRF.  Decisions were made earlier than the applicant’s originally presented timeline and within the authority of the sitting squadron commander.  Dismissed.

Issue 9: Improper influence from current squadron commander on the wing commander to mark DNP on PRF.  DNP recommendation and decision was made well before current squadron commander was in place.  Dismissed.

On 20 Jul 18, the applicant was notified of the results of a Commander Directed Investigation in response to his reprisal concerns expressed in the IG complaint.  The specific allegations were on or about 19 Sep 17:

Issue 1:  Leadership failed to provide consistent check ride support measures.  Not substantiated.  

Issue 2: The check-ride evaluator failed to correctly document a check ride.  Not substantiated.  

Issue 3: The check-ride evaluator acted in an unprofessional manner towards the applicant.  Not substantiated.  

On 30 Jul 18, the applicant was notified his complaint of reprisal against his commander had been concluded.  

On or about 29 Sep 17, the wing commander marked the applicant as “Do Not Promote” for the P0417D major promotion board with influence from both incoming and outgoing commanders. Dismissed.  On 5 Nov 17, the commander removed and reassigned the applicant. Dismissed  On 5 Nov 17, the previous commander influenced the current commander to remove the applicant from his position. Dismissed  

The Major Command (MAJCOM) IG conducted a complaint analysis and concluded the responsible management officials did not reprise against the applicant or abuse their authority and recommended the allegation be dismissed.  SAF/IGQ concurred with the recommendation.  The Department of Defense Inspector General concurred with the findings, approved the report and dismissed the allegations. 

On 1 Jul 19, the applicant was notified that he was not selected for promotion to major by the CY18D Major (LAF) Central Selection Board.

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

APPLICABLE AUTHORITY

Air Force Instruction 36-2406, Officer and Enlisted Evaluation Systems states that comments from previous evaluations or ratings are prohibited, except in conjunction with Airman Comprehensive Assessment sessions and outlined in Chapter 8 for promotion recommendation forms.  (1.12.3.2).  Raters must ensure that information used to document performance, especially derogatory information relating to unsatisfactory behavior or misconduct is reliable and supported by a preponderance of the evidence. (1.12.4.1.1)  When it is determined that such conduct is appropriate for comment, refer to the underlying performance, behavior or misconduct itself and not merely to the fact that the conduct may have resulted in a punitive administrative action. (1.12.4.1.4)

AIR FORCE EVALUATION

AFPC/DP3SP recommends denying the application.  The applicant filed an appeal through the Evaluation Review Appeals Board.  The appeal was returned due to lack of documentation to support revising the PRF from the SR or the MLR.  

The applicant filed a complaint with the IG alleging the LOC he received from a previous base should not have been included in his PRF and that some of the comments lacked specificity.  The PRF cites instances of poor officership, to include multiple write-ups as a result of poor leadership, resource management and decision-making.  It also mentions the applicant quibbles with authority when mentored/debriefed.  AFI 36-2406, paras 12.3 notes that you do not comment on duty history or performance outside the current reporting period, except as permitted by paras 1.12.3.4 and 1.12.4.1.  However, since performance in past jobs is relevant in the preparation of PRF’s, raters may include on promotion recommendations.  The senior rater was authorized to consider the applicant’s LOC. 

The applicant contends the contested PRF should be voided and revised based on the SR being relieved of command.  Based on the redacted CDI provided by the applicant, the IO concluded the SR failed to establish and maintain a healthy command climate on or about 6 Jul 17 and on or about 1 Dec 17.  AFI 36-2406, para 1.7.2 states, in most cases, being removed from duties for cause has no effect on the rater’s ability to render fair and accurate evaluations on subordinates. There is insufficient documentation to substantiate the SR did not render a fair and accurate assessment of the applicant’s performance and that the PRF would have otherwise resulted in a “promote” recommendation if evaluated by another SR.  There is no evidence the SR did not assess the applicant’s promotion potential fair and objectively.  The removal of the SR does not appear to have any relationship to the assessment of the applicant’s promotion potential, as there was subsequent review by the MLR and the MLR president, 

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 28 Oct 20 for comment (Exhibit D), and on 27 Nov 20, the applicant responded.  In his response, he reiterates his previous contentions and further contends the advisory opinion is incorrect and inappropriate.  He disagrees that he has provided insufficient documentation.  He contends he received a DNP promotion recommendation and negative remarks about his performance after he objected to the check-ride on 5 Oct 17.  On 7 Nov 17, he received a DNP PRF in reprisal.  The DNP promotion recommendation occurred during the same time as the commander relieved of command.  These issues should be considered in determining whether the PRF is valid, accurate and appropriate.

He has not received a resolution for issues 1-3 and 5-7 and requests the Board address those issues as well as changing his PRF to “promote”.

The applicant’s 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.  Additionally the applicant alleges he has been the victim of a reprisal.  As noted above, the applicant filed an IG complaint; however, the allegations were not substantiated.  Nevertheless, based on the authority granted to this Board pursuant to Title 10 U.S.C. Section 1034, the Board reviewed the complete evidence of record to reach its own independent determination of whether reprisal occurred.  Based on its review, the Board does not conclude the applicant has been the victim of reprisal.  While the applicant’s commander was relieved of command for loss of confidence, we do not find that in and of itself is cause to remove the applicant’s DNP PRF as there were additional management level reviewers that also reviewed the PRF and concurred with the recommendation.  In the absence of evidence to the contrary, the Board does not find the applicant has been the victim of reprisal pursuant to Title 10, U.S.C. Section 1034. 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-2020-00975 in Executive Session on 11 Mar 21:

, 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 Mar 20, 29 Mar 20, 17 Jun 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 28 Oct 20.
Exhibit E:	Applicant’s response dated 27 Nov 20.
Exhibit F.  IG Report of Investigation dated Withdrawn.

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.