RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03814

XXXXXXXXXXXXX	COUNSEL: NONE
	 
 	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.	His letter of reprimand (LOR) dated 7 Apr 20 be removed from his record.  

2.  His referral officer performance report (OPR) for the reporting period ending 23 May 20 be removed from his record.  

APPLICANT’S CONTENTIONS

He received the LOR and referral OPR while assigned to a highly selective data masked special operations Army unit.  As a mission commander in charge of deployed teams, he was tasked with making decisions that often fell outside the scope of normal deployments.  A tragic suicide of a unit member resulted in an investigation that highlighted a security oversight.  A separate investigation led to him receiving an LOR for failure to report a potential security incident.  Due to the high profile of the unit, there was increased scrutiny to address any perceptions of poor conduct.  He was caught in the crosshairs and an admitted mistake on his part resulted in a career ending LOR.  While he admits he should have reported the potential security violation, he does not believe the level of punishment was justified.  There was no information compromised and he did not think the incident met the threshold for reporting.  He did report another potential security incident that occurred on the same deployment.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force major (O-4).  

On 7 Apr 20, the applicant received a LOR.  An investigation revealed in Jul 19 that a camera was discovered in the operating space while the applicant was the mission commander.  The discovery was reported to the applicant by members of his team; however, he elected to keep the information to himself, despite recommendations to report it as a security incident.  At no point did he contact anyone in his chain of command or a security expert for guidance.  By not reporting, he assumed risk to the mission that was beyond his authority.  He put the mission he was charged to command in jeopardy.  In a response to the LOR dated 8 Apr 20, he stated he should have immediately reported the discovery of the camera.  He was wrong and wanted to put the incident behind him.  The LOR is not contained in the applicant’s automated records management system (ARMS).  

The applicant received a referral OPR for the reporting period ending 23 May 20 for failure to report a security incident in Jul 19 and receipt of LOR.  

On 25 Aug 21, the applicant requested the evaluation report appeals board (ERAB) remove the referral OPR.  On 9 Sep 21, the ERAB returned the applicant’s request without action.  The Board found the applicant insufficiently corroborated that either a material error or injustice occurred to warrant removal of the OPR.

On 21 Oct 22, the applicant was honorably discharged in the rank of major.  He was credited with 13 years, 4 months and 25 days of active duty service.  

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

APPLICABLE AUTHORITY/GUIDANCE

AFI 36-2907, Unfavorable Information File (UIF) Program, paragraph 4.4.  LORs.  A reprimand is more severe than a counseling or admonition and indicates a stronger degree of official censure.  LORs are mandatory for file in the UIF for officer personnel.  

DAFPM 2021-36-03, Adverse Information for Total Force Officer Selection Boards, dated 14 Jan 21and Section 502 of the National Defense Authorization Act (NDAA) for Fiscal Year 2020, signed on 20 Dec 19, as codified in 10 U.S.C. § 615(a)(3) requires all adverse information to be filed in an officer’s master personnel records group and officer selection record (OSR) for consideration by promotion boards.  The new policy removed the authority for WG/CCs or issuing authorities to direct removal of derogatory data from the OSR effective 1 Mar 20, as previously permissible in AFI 36-2907, Adverse Administrative Actions, and AFI 36-2608, Military Personnel Records.  Adverse information requiring mandatory filing in the OSR and master personnel records group includes but is not limited to LORs and any substantiated adverse finding or conclusion from an investigation or inquiry.  Only the AFBCMR may remove the adverse information from the officer’s record.  

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denial for removal of the LOR.  The LOR is not in the applicant’s military record; however, it was provided within the supporting documents of the case.  Upon review, the applicant had three duty days to respond to the LOR and provided a response on 8 Apr 20.  The LOR meets the requirements of adverse information in accordance with the NDAA, 10 U.S.C. § 615(a)(3).

The applicant’s commander issued the LOR based on the preponderance of evidence per AFI 36-2907.  DP2SSM is unable to provide input on the applicant’s contention the adverse information was inaccurate and can only address if the LOR met the AFI requirements.  Further, the LOR is not maintained in the applicant’s record and was either never filed or already removed.  

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 11 Oct 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 AFPC/DP2SSM and finds a preponderance of the evidence does not substantiate the applicant’s contentions. The applicant’s LOR dated 7 Apr 20 constitutes as adverse information as a result of an investigation in accordance with the FY20 NDAA and 10 U.S.C. § 615(a)(3); however, it is not filed within the applicant’s records. The applicant does not dispute he failed to report the security incident although it was his responsibility to have done so and stated in his response to the LOR on 8 Apr 20 that he should have reported it immediately and was wrong not do so.  While the applicant admits to his failure to report the security incident, he contends the career ending LOR and referral OPR were unjust.  However, the Board disagrees.  In this respect, the Board notes the applicant’s failure to perform his required duties, resulted in him assuming unnecessary risk to a mission he was charged to command.  With respect to the 23 May 20 referral OPR, which was based on the LOR dated 7 Apr 20, the Board agrees with the ERAB that the applicant insufficiently corroborated that a material error or injustice occurred. 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-2021-03814 in Executive Session on 8 Nov 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 5 Dec 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSM, dated 17 Aug 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 11 Oct 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.