RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02282

XXXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The Letter of Reprimand (LOR), dated 18 Mar 19, be removed from his Officer Selection Record (OSR).  

APPLICANT’S CONTENTIONS

The aforementioned LOR was filed in his OSR not in accordance with (IAW) AFI 36-2608, Military Personnel Records System.  His additional rater, Wing Commander (WG/CC), circumvented required processes for filing the LOR in his OSR by placing the LOR in his OSR, rather than IAW AFI 36-2608, having the senior rater review the LOR, and any response provided by the officer, and making a final decision not subject to further review.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is currently serving as a lieutenant colonel.  

On 18 Mar 19, the applicant’s rater, Medical Group Commander (MDG/CC) issued the challenged LOR for reprisal “against four non-commissioned officers for making protected communications to the Inspector General (IG) office.”  Additionally, the LOR stated the applicant “restricted members under his command from making protected communications.” 

On 5 Apr 19, the applicant submitted a rebuttal to the LOR, refuting the assertions of restriction and reprisal, and contending the verdict rendered by the Major Command IG “speaks to systemic bias.”

On 18 Apr 19, the MDG/CC notified the applicant the LOR was going to be maintained, and the LOR was being referred to the WG/CC for consideration to be placed in the applicant’s OSR.  

On 21 May 19, according to documentation submitted by the applicant, the WG/CC notified AFPC/DPSIR, [he] determined the LOR will be uploaded into the Automated Records Management System (ARMS) to be filed in his OSR and Officer Command Selection Record Group.  

On 4 Jun 20, according to documentation submitted by the applicant, his Area Defense Counsel (ADC) submitted a memorandum to the WG/CC requesting the LOR be removed from the applicant’s OSR because it was improperly filed in the OSR in violation of AFI 36-2608.

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

APPLICABLE AUTHORITY

DoDI 1320.14, DoD Commissioned Officer Promotion Program Procedures, dated 16 Dec 20, para 3.2.c.(5), Communication with Promotion Boards: "Adverse information will be presented to promotion selection, special selection, and federal recognition boards that consider officers for promotion to the grades of regular major (or lieutenant commander in the Navy) through colonel (or captain in the Navy), reserve colonel (or captain in the Navy), and general or flag officer grades. (a) Adverse information that is part of the officer’s official military personnel record will be provided to the board." (Exhibit B) 

DAFPM2021-36-03, Department of the Air Force Policy Memorandum (DAFPM) on Adverse Information for Total Force Officer Selection Boards, published 26 Feb 21 (effective for all promotion boards meeting on or after 1 Mar 21): Figure A5.1: FGO Adverse Information Disposition- Adverse Information issued between 1 Jan 12 – 26 Feb 21, must be added to OSR if not already included.  (Exhibit B).  

AIR FORCE EVALUATION

AFPC/JA, recommends partially granting the application.  The applicant’s rater issued the challenged LOR for reprisal “against four non-commissioned officers for making protected communications to the IG office, and for restricting members under his command from making protected communications.”  After considering the applicant’s response to the LOR, the MDG/CC determined the LOR would be maintained, and recommended the WG/CC file the LOR in the applicant’s OSR.  On 21 May 19, the WG/CC made the determination to file the LOR in the applicant’s OSR.  At that time, the WG/CC was the applicant’s additional rater, and the 8 AF/CC was the applicant’s senior rater.  

According to AFI 36-2608, para 8.3.1., “An officer who receives a LOR on or after 1 February 1996 is notified by the immediate commander by memorandum that the officer’s senior rater decides whether to file the LOR in the OSR.” Paragraph 8.3.2., states, “The senior rater reviews the memorandum and any comments the officer submits and renders a final decision. The senior raters’ decision is not subject to further review.”  At the time of the matter in question, the 8 AF/CC should have made the final OSR decision as opposed to the WG/CC.  Based on the foregoing, the applicant has established a material error warranting partial relief.  Two options for relief are:  

	1. Remove the LOR from the OSR for any promotion boards applicant has met since 21 May 19 (date LOR filed in OSR) and provide the applicant Special Selection Board(s) (SSBs); or 

	2. Provide the LOR and requisite documents to 8 AF/CC to make the decision whether to file the LOR in applicant’s OSR.  Due to the passage of time and fact that the current 8 AF/CC is not the commander who was in the seat when the LOR was issued, recommend the first option. 

Due to the FY20 NDAA changes to 10 USC, Section 615, requiring all LORs issued to field grade officers since 1 Jan 12 to be filed in officers’ OSRs, the LOR will be re-filed in applicant’s OSR for any promotion boards meeting on or after 1 Mar 21; thus, any relief granted must be limited to promotion boards held prior to 1 Mar 21.

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 20 Feb 21 for comment (Exhibit D), and the applicant replied on 22 Mar 21.  In his response, the applicant concurs with AFPC/JA’s option 1: the removal of the OSR for the two promotion boards he met during the period of time the incorrectly created OSR existed.  However, he does not concur with their recommendation to re-file the underlying LOR in an OSR following the SSBs based on FY20 NDAA changes to 10 USC, Section 615.  He contends since his OSR was initiated improperly by the WG/CC, rather than the appropriate authority, 8AF/CC, therefore, it does not meet the factual predicate required under 10 USC, Section 615(a)(6)(A), and the LOR arguably should not be filed in a new OSR.  

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 the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/JA to remove the LOR from the OSR for any promotion boards the applicant has met since 21 May 19 (date LOR filed in OSR) and provide him Special Selection Board consideration.  However, for the remainder of the applicant’s request, that the LOR should not be filed in a new OSR, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the applicant’s request.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

	a.   The Letter of Reprimand (LOR), dated 18 March 2019, be removed from his Officer Selection Record (OSR) for any promotion boards that met between 21 May 2019 and 1 March 2021.  

	b.  It is further directed that the corrected record be considered for promotion to the grade of Colonel by a Special Selection Board for the CY19 (PO619C) Central Colonel Section Board and any subsequent boards in which the above correction was not a matter of record.

	If AFPC discovers any adverse factors during or subsequent to supplemental consideration that are separate and apart, and unrelated to the issues involved in this application, that would have rendered the applicant ineligible for this promotion, such information will be documented and presented to the Board for a final determination on the individual's qualifications for the promotion.

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant 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.

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-2020-02282 in Executive Session on 6 Apr 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 11 Aug 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/JA, dated 17 Feb 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 20 Feb 21.
Exhibit E:	Applicant’s response, dated 14 Mar 21, signed/received 22 Mar 21.  

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.