RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-01363

xxxxxxxxxxx	COUNSEL:  XXXXXXXXX
	
	HEARING REQUESTED:  YES 

APPLICANT’S REQUEST

1.   Removal of three Letters of Reprimand (LOR) and two Promotion Recommendation Forms (PRF) from his official military record.

2.   Consideration by a Special Selection Board (SSB) for promotion to lieutenant colonel (O-5).

3.   Returned to active duty as a pharmacist with all back pay based upon his separation date of 31 May 20.

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, contends the applicant was discharged from the Air Force due to his two-time non-selection for promotion.  The two-time non-selection for promotion was precipitated by three LORs and two PRFs that were issued to the applicant starting in 2015.  

The LORs and PRFs were issued to the applicant for improper reasons, and should be removed from his official military record.  They should not have been considered by the promotion boards that considered, but did not select, the applicant for promotion.  Had these documents been removed from his Unfavorable Information File (UIF), as regulation dictates, the applicant would have been selected for promotion and he would not have been discharged for becoming a two-time non-select.

All three LORs were filed in the applicant’s Officer Selection Record (OSR).  Although the applicant essentially acknowledged that he had erred in small ways in each of his LOR responses, he and his spouse believe there are additional mitigating circumstances surrounding the LORs and that the LORs were issued for improper reasons.

The applicant and his spouse were experiencing a strained marriage at the time of his assignment, which was exacerbated by understaffing in his pharmacy and the untenable housing situation they were forced to endure.  Additionally, the applicant was suffering from an intestinal infection that caused uncomfortable and embarrassing health issues, which he chose to keep personal rather than fully disclose.  He was not officially diagnosed until a later date.

Further, the applicant’s spouse detailed the struggles they endured with respect to securing housing.  After being selected as a “key spouse” and attending training with the base commander’s spouse, the applicant’s spouse became tearful and explained their housing struggles.  The next day, the applicant’s spouse was relieved as a “key spouse” and she asserts she was no longer in favor with command.  The fact that the command chose to issue these LORs for extremely minor infractions is immediately suspect.  The timeline and the command’s disproportionate response support the conclusion that the adverse action taken against the applicant was in retaliation for his spouse’s comments.

Even if the Board concludes the contested LORs and PRFs were properly issued to the applicant, the promotion boards that considered, but did not select the applicant for promotion should not have considered those adverse entries as they should have been removed from his records in accordance with Air Force Instruction (AFI) 36-2907, Adverse Administrative Actions.  The LORs were issued in 2015 and the applicant was considered for promotion more than two years after the last LOR was issued; therefore, the adverse UIF material and LORs should have been removed from his record prior to his consideration for promotion.

In this case, the applicant has demonstrated his non-selection for promotion resulted because of both an error and an injustice.  The promotion board improperly considered the contested LORs and UIF entries, in error, as they should have been removed from the applicant’s records.  It would be an injustice to allow his non-selection for promotion to stand when the LORs were issued for extraordinarily minor infractions due to unwarranted animus his commander had toward him.  Finally, had the adverse material been removed, the applicant would have been selected for promotion and would not have been discharged from the service. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force major (O-4).

On 13 May 15, the applicant was issued an LOR, and on 18 May 15, he submitted a rebuttal response.

On 2 Jun 15, the applicant was issued a referral Officer Performance Report for the period 1 Aug 14 – 28 May 15, and on 4 Jun 15, he submitted a rebuttal response.

On 19 Aug 15, the applicant was issued an LOR, and he submitted an undated rebuttal response.

On 8 Oct 15, the applicant was issued an LOR, and on 14 Oct 15, he submitted a rebuttal response.

On 28 Oct 15, the applicant was notified by the wing commander that the three LORs would be filed in his OSR.

On 8 Jun 16, the applicant was issued a referral Officer Performance Report for the period 29 May 15 – 28 May 16, and on 13 Jun 16, he submitted a rebuttal response.

On 2 Jan 19, the applicant was notified he was considered, but not selected, for promotion by the Calendar Year 2018A (P0518C) Lieutenant Colonel Biomedical Sciences Corps Central Selection Board (CSB).

On 13 Dec 19, according to documentation provided by the applicant, he was notified of his involuntary separation on 31 May 20, as a result of his second promotion non-selection.

On 31 May 20, the applicant was furnished an honorable discharge, with Narrative Reason:  Non-Selection, Permanent Promotion, and was credited with 16 years, 8 months, 9 days active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C- E.

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denying the applicant’s request to remove three LORs, dated 13 May 15, 19 Aug 15, and 8 Oct 15, from his military record.  Based upon the documentation provided by the applicant and analysis of the facts, there is no evidence of error or injustice.  In accordance with AFI 36-2907, Adverse Administrative Actions, dated 26 Nov 14, commanders, supervisors, and other persons in authority can issue administrative counseling, admonitions, and reprimands.  These actions are intended to improve, correct, and instruct subordinates who depart from standards of performance, conduct, bearing, and integrity, on or off duty, and whose actions degrade the individual and unit's mission. 

While no specific standard of proof applies to administrative action proceedings, commanders should utilize the “preponderance of the evidence” standard when evaluating the evidence and every element of the offenses committed.  A preponderance of the evidence means simply the greater weight of credible evidence.  Whether such proof is available should be considered before initiating the administrative action.  If such proof is lacking, administrative action is susceptible to being found to be legally unsupportable and, as a result, could be set aside.  There is no requirement to prove any allegation beyond a reasonable doubt.

The complete advisory opinion is at Exhibit C.

AFPC/DP3SP recommends denying the applicant’s request to remove two PRFs from his military record.  Based on the analysis of the facts and documentation provided, the applicant has provided insufficient evidence to substantiate there was an error or injustice as the PRFs were accomplished according to regulatory/instruction guidance and it appears the board appropriately reviewed the OSR.

On 28 Oct 15, the Senior Rater determined to file the three LORs into the applicant’s OSR.  In accordance with AFI 36-2608, Military Personnel Records Systems, LORs filed in the OSR remain until the officer is afforded one In-the-Promotion Zone (IPZ) or Above-the-Promotion Zone (APZ) consideration unless a request is submitted and approved under the early removal as an exception to policy.  The officer may appeal to his or her senior rater for removal after one IPZ or APZ consideration.  Airmen cannot request early removal; only the wing commander or issuing authority may request early removal as an exception to policy.

While the applicant’s request attempts to link the LORs to the expiration of the UIF, this is inaccurate as once LORs are filed in the OSR, a formal request from the Senior Rater must be initiated (officers may request through their Senior Rater) to have the LORs removed.

Subsequently, the applicant received two PRFs for a recommendation of “Do Not Promote.”  The PRF is used by the Senior Rater (typically the Wing Commander) to provide a recommendation to the CSB of an officer’s future potential to serve in the higher grade. This recommendation is based on the Senior Rater’s personal knowledge and the Record of Performance (i.e., Evaluations).

The Senior Rater is solely responsible for evaluating each officer's Officer Command Selection Record Group and Duty Qualification and History Brief and for awarding PRF recommendations (Definitely Promote if allocations are available, Promote or Do Not Promote) among officers or submitting officers to compete for aggregation or carry-over "DP" recommendations at the Management Level Review (i.e., MAJCOM).

The complete advisory opinion is at Exhibit D.

AFPC/DP2SP recommends denying the applicant’s request for an SSB for promotion consideration to lieutenant colonel.  The applicant was non-selected to the grade of O-5 by the P0518C IPZ and the P0519C APZ CSB.  Further, the applicant was not selected for Selective Continuation after the P0519C CSB resulting in his second non-selection for promotion and his involuntary separation in accordance with the law, and AFI 36-3207, Separating Commissioned Officers.  The governing directive is AFI 36-2501, Officer Promotions and Selective Continuation, dated 16 Jul 04.

This evaluation of the applicant’s request concerning his LORs and PRFs requires this advisor to rely on the opinions of other Air Force experts.  In this case, AFPC/DP2SSM and AFPC/DP3SP, both concluded the applicant has provided insufficient evidence to substantiate a claim of error or injustice in regards to the contested LORs and PRFs and recommend the Board deny the applicant’s request to remove the LORs and PRFs.  After a careful review of this application, if the applicant’s request to void the LORs and PRFs is denied, this advisor recommends the Board also deny the applicant’s request for SSB consideration.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant’s counsel on 10 Nov 21 for comment (Exhibit F), and counsel replied on 17 Nov 21.  In his response, counsel contends he provided the Board with extensive evidence and argument in his original filing, all of which support his application for relief.  The advisory opinions are nothing more than conclusory opinions and do not contain discussion of analysis of a single fact raised by the applicant.  Moreover, they ignore the evidence submitted by the applicant.  Given the advisory opinions’ failure to address any of the substantive facts or legal issues raised in this case, the opinions and recommendations provided are entirely useless to the Board and should be disregarded.  Additionally, Department of Defense Instruction (DoDI) 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active-Status List, Section 1.2., provides that it is policy to, “Support through policies and procedures the consideration for continuation of commissioned officers in the grade of O-4 who have failed selection for promotion to the next higher grade for the second time and who are between 2 and 6 years away from qualifying for retirement pursuant to Section 3911, 6323, or 8911 of  Title 10 U.S.C., on the date they are required to be discharged.  For officers who are within 4 years of qualifying for retirement, continuation will normally be supported unless skill requirements or quality indicators dictate otherwise.”  The applicant had 16 years, 5 months, 21 days service, which means he was 3 years, 3 months, 26 days short of retirement.  This places him within four years of qualifying for retirement.  He is concerned the Continuation Selection Board did not have this information when it considered the applicant’s record, which would have contributed to the error.  

In a statement provided by the applicant, he details his 26 years of combined Navy, Navy Reserve, and Air Force service.  Regarding his assignment and performance during the period which he received the LORs, the applicant contends it was the most difficult time in his life.  Due to the critical housing situation, he had to transition between accommodations, taking nine months to find a place to live.  The situation overwhelmed him and all his relationships suffered.  The applicant further contends he was also dealing with an undiagnosed torn rotator cuff and bicep tendons, had strained his back from the multiple moves, and developed an intestinal infection from chronic non-steroidal anti-inflammatory drug use. Despite all this, he always maintained impeccable job performance and provided very safe medical care.

Additionally, the applicant’s overall military career is favorably characterized in the 26 years of service, including well-documented history of successful working relationships with numerous and highly diverse military leaders, as reported on his performance reports and award citations.  His combined 26 years of service yields over 16 years towards an active duty retirement.  Finally, counsel reiterates the guidance from DoDI 1320.08 regarding the selective continuation process, and provided multiple excerpts from his OPRs from 2009 through 2019, in support of his request.

Counsel’s complete response is at Exhibit G.

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, to include counsel’s rebuttal response, the Board concludes the applicant is not the victim of an error or injustice.  Counsel challenges the accuracy of events chronicled in the applicant’s LORs; however, the applicant’s commander was within her rights to issue the LORs and they were appropriately filed in the applicant’s record for consideration by CSBs.  Counsel has not offered any objective or credible evidence to rebut the version of events offered by the applicant’s commander.  In addition, he contends the fact that the command chose to issue the LORs for extremely minor infractions is immediately suspect and was likely issued in retaliation for his spouse’s comments. However, while the applicant may believe this is the case, there is nothing in the evidence provided that would support this contention or lead the Board to believe that the LORs or PRFs in question were prepared with any motivation on the part of the evaluator other than to report their assessment of the applicant’s performance.  

Counsel argues the applicant’s LORs should be determined to be invalid because procedures were not followed for their removal.  However, according to AFPC/DP3SP, LORs filed in the OSR remain until the officer is afforded one IPZ or APZ consideration unless a request is submitted and approved under the early removal as an exception to policy.  Additionally, PRFs are used by the Senior Rater to provide a recommendation to the CSB of an officer’s future potential to serve in the higher grade.  The Board is not persuaded by the evidence provided, that the actions taken against the applicant were improper, contrary to the provisions of the governing regulations, or that he was denied rights to which he was entitled.  

Counsel further argues the applicant should have been selected for continuation because he was within four year of qualifying for retirement. Officer promotion and selective continuation boards are conducted in accordance with DoDI 1320.08 and AFI 36-2501 and members are briefed on eligibility criteria, Secretary of the Air Force (SecAF) policy, the relevant portions of the SecAF Memorandum of Instructions, and applicable paragraphs in DoDI 1320.08.  While DoDI 1320.08, states officers in the grade of O-4 approaching retirement will normally be selected for continuation, it also states there is no entitlement to continuation. The continuation board is a competitive process and while the applicant may believe he should have been selected because he was within four years of qualifying for retirement, the continuation board determined he was not fully qualified.  Therefore, absent a showing by the applicant that the decision not to continue him to retirement eligibility was otherwise arbitrary, capricious, or an injustice, the Board finds no further action is required in response to these allegations. Given there is no basis to recommend removal of the LORs and PRFs, the remaining requests for relief are rendered moot.  In view of the foregoing, the Board concurs with the rationale and recommendations of AFPC/DP2SSM, AFPC/DP3SP, and AFPC/DP2SP, and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Accordingly, 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-2021-01363 in Executive Session on 2 Dec 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 14 Jan 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSM, dated 8 Jun 21.
Exhibit D:	Advisory Opinion, AFPC/DP3SP, dated 26 Oct 21.
Exhibit E:	Advisory Opinion, AFPC/DP2SP, dated 9 Nov 21.
Exhibit F:	Notification of Advisory, SAF/MRBC to Counsel, dated 10 Nov 21.
Exhibit G:	Applicant’s Response, w/atchs, dated 17 Nov 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.