RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03542

XXXX X. XXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His Letter of Admonishment (LOA) dated 9 Nov 17 be removed from his military records.

APPLICANT’S CONTENTIONS

The LOA was issued without substantiated findings.  According to Department of the Air Force Policy Memorandum (DAFPM) 2021-36-03 published 26 Feb 21, chain of command no longer has the ability to remove this information, and requires Air Force Board for Correction of Military Records (AFBCMR) recommendation.  Attachment 1, Section II, para a.(1) defines adverse action as "substantiated adverse finding(s) or conclusion(s) from an officially documented investigation or inquiry".  Included in his submission is a letter from his Major Command (MAJCOM) commander that states, the LOA was issued without any substantiated findings of an investigation.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a currently serving Air Force colonel (O-6).

On 9 Nov 17, an LOA, indicates that his commander admonished him for events that occurred on 1 Nov 17 when a vehicle rollover accident occurred that involved members of a Missile Maintenance Squadron.  The rollover accident took place following the members of the Missile Maintenance Squadron working an extended work schedule.  The investigation revealed that he authorized members of the Missile Maintenance Squadron to work a 16-hour shift outside a normal 12-hour duty schedule.  On that same day, the applicant acknowledged receipt of the LOA.

On 17 Nov 17, according to a response to the LOA, the applicant provided his rationale for his actions.  Additionally on 4 Dec 17, the applicant’s commander notified the applicant of his decision to retain the LOA. 

On 1 Oct 21, according to a memorandum provided by the applicant, his MAJCOM commander rescinded the LOA in accordance with AFI 36-2907, Adverse Administrative Actions, para 2.4.6.4.

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

APPLICABLE AUTHORITY

On 26 Feb 21, the Secretary of the Air Force ordered a policy change via a Department of the Air Force Policy Memorandum (DAFPM) 2021-36-03 on Adverse Information for Total Force Officer Selection Boards to comply with Section 502 of the National Defense Authorization Act (NDAA) for Fiscal Year 2020, signed on 20 Dec 19, as codified in title 10 United States Code, section 615(a)(3). 

The new law, DoD policy, and subsequent Air Force policy require all adverse information to be filed in the officer’s master personnel records group and Officer’s Selection Record for consideration by both regular and reserve promotion selection, special selection, federal recognition, and selective continuation boards to the grade of O-4 and above, to include promotion processes to the grade of O-3 that involve adverse information that received significant media attention or is of interest to the Senate Armed Services Committee.  These changes came into effect for all promotion boards convening on or after 1 Mar 20 and include historic adverse information previously issued on or after 1 Jan 12 and Article 15s and approved court martial findings dated prior to 1 Jan 12.  It further removed the authority for Wing commanders, delta commanders, or issuing authorities to direct removal of derogatory data from the OSR as previously permissible in AFI 36-2907, Adverse Administrative Actions, paragraph 3.4.3.1, and AFI 36-2608, Military Personnel Records, paragraphs 7.10 through 7.12 (and their subparagraphs), 8.3.8, and 8.3.15 (and its subparagraphs).  Adverse information that requires mandatory filing in the Officer Selection Record (OSR) and the Master Personnel Records Group (MPerRGp) includes, but is not limited to:  

1. Any substantiated adverse findings or conclusions from an officially documented investigation or inquiry, regardless of whether command action was taken as a result.
2. Approved court-martial findings of guilt (Court-martial Orders).
3. Non-judicial punishment pursuant to Article 15, Uniform Code of Military Justice.
4. Letters of Reprimand.
5. Letters of Admonishment.
6. Notices of Relief of Command (for cause).
7. Letters of Counseling related to a substantiated adverse finding or conclusion from an officially documented investigation or inquiry. 

LOCs unrelated to a substantiated finding or conclusion from an officially documented investigation or inquiry will not be considered adverse information. This preserves commanders’ ability to administratively document and rehabilitate minor instances of substandard behavior or misconduct without making it a part of the permanent record (also referred to as “standalone” LOCs).

Moreover, the DAFPM states that “waivers to this policy are not permitted” and all adverse information as defined by the policy will be permanently placed in the MPerRGp.  Except for the set aside of a court-martial or nonjudicial punishment action, removal of adverse information from the MPerRGp may only be directed pursuant to an Air Force Board for Correction of Military Records (AFBCMR) recommendation.  

As such the AFBCMR is now the sole removal authority for adverse actions.  This is not a different type of review for the AFBCMR.  Rather, it falls under the Board’s existing review authority for corrections resulting from error or injustice. 

Note on Supplemental Selection Boards (SSB):  In accordance with title 10, USC sections 628(a)(2), 628(b)(2), 14502(a)(2), and 14502(b)(3), special selection boards considering promotion boards prior to the implementation of this policy will consider the record as it would have appeared to the original board. Historic adverse information will not be presented to the promotion board via the OSR for officers meeting an SSB considering an original board prior to the implementation of this policy.

AIR FORCE EVALUATION

AF/A1PPP recommends denying the application.  After a careful review of the application, AF/A1PPP finds the applicant has not provided justification that the LOA was administered in error and the current commander does not have the authority to rescind the document as outlined by AFI 36-2907, para 2.4.6.4.  Therefore, the LOA should remain in the applicants OSR for ten years following the conclusion of the action in accordance with DAFPM 2021-36-03.

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 9 Mar 22 for comment       (Exhibit D), but has received no response.

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 AF/A1PPP and finds a preponderance of the evidence does not substantiate the applicant’s contentions. Furthermore, the applicant has not submitted any new evidence or information that casts doubt on the legal sufficiency of the LOA.  Additionally, DAFPM 2021-36-03 directs historic adverse information that was issued prior to the date of the implementation of the policy to be filed in the Master Personnel Records Group (MPerRG).  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-2021-03542 in Executive Session on 17 May 22:

, 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 29 Oct 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AF/A1PPP, dated 9 Mar 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 9 Mar 22.

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.