RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00731
	         INDEX NUMBER:  131.09  107.00  145.02
	XXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

___________________________________________________________________

APPLICANT REQUESTS THAT:

The Enlisted Performance Report (EPR) rendered on him for the period closing 15 Apr 96 be voided and removed from his records.

The April 1999 award date for the Defense Meritorious Service Medal (DMSM), First Oak Leaf Cluster, he was awarded for the period March 1992 through June 1996 be changed to a date making it eligible for consideration, if necessary, beginning with Promotion Cycle 97E8.

He be promoted to the grade of senior master sergeant (SMSgt) with a date of rank (DOR) and effective date of at least March 1999.

If the Board declines to promote him directly to SMSgt, in the alternative, he receive supplemental promotion consideration beginning with Cycle 97E8 with the EPR closing 15 Apr 96 removed from his record and inclusion of the DMSM he was awarded in Apr 99.

He receive back special duty assignment pay (SDAP) for the period  10 Feb 97 through 13 May 99.

He be issued an appropriate end of tour award to recognize his service during the period July 1996 to May 1999.

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APPLICANT CONTENDS THAT:

Applicant provides a twenty-five-page submission with attachments.  Applicant discusses the circumstances of his case and states that he was reprised against for fulfilling his duty as a noncommissioned officer to report fraud, waste, and abuse.  Applicant provides in-depth discussion on the consequences of the reprisal action taken against him.  He also discusses why he should receive the relief he has requested.

The contested EPR should be removed from his records because the Defense Threat Reduction Agency (DTRA) Inspector General (IG) concluded that it was an adverse EPR issued in reprisal to protected communications.  The voiding of the EPR does not fill the gap left in its place.  As the concluding EPR of a four-year special duty tour that ended with the award of the DMSM, it would seem that it should have been a “firewall” EPR with a senior rater indorsement.  The EPR that should be in his records would have had a very positive impact on his promotion opportunities and subsequent EPRs.  His 1996 performance report will be replaced with a piece of paper saying, “removed by order of the secretary of the Air Force.”  How can that piece of paper, in the interest of justice, reflect what would have been in its place.  The applicant also believes that the EPRs he received subsequent to the 1996 adverse report were affected by it.  He believes it is much easier to mark a block down when a prior reference concurs with it.  He does not believe that the voiding and removal of the 1996 EPR can have any “positive effect.”

The DMSM (1OLC) he received was the result of corrective action taken after the DTRA IG recommended he receive an appropriate end of tour award.  However, the corrective action failed to address the timeliness of the award.  The original decoration would have been issued in 1996.  The untimeliness of the award may have been one factor in his not receiving and end of tour award in 1999.  The decoration also was not added to his total score for promotion consideration until Promotion Cycle 01E8.

He should be promoted directly to SMSgt because the supplemental selection board process would conflict with the interest of justice in his case.  He indicates that this a more complex issue than it would have been if his case had been resolved “within 90 days of the receipt of the allegation of reprisal.”  Too much time passed with the adverse EPR in his record, placing a cloud of being a “whistleblower” over him.  Even a back promotion could not fully restore his career.  If he had been promoted to SMSgt in 1999, he would have been assigned to positions of higher responsibility in 2000 and beyond, thus affecting performance reports that would later be used by the chief master sergeant (CMSgt) evaluation boards.  He does not believe the supplemental promotion process can provide him fair consideration because opportunities were lost and history cannot be rewritten.

He has spent almost three years attempting to “exhaust administrative remedies” to resolve the issue of back SDAP.  All efforts to resolve this issue have failed.  He was advised by his servicing military personnel flight (MPF) to apply to the AFBCMR for resolution.

He was denied an end of tour award for the assignment immediately following the verification of reprisal and cancellation of his special duty assignment.  Two factors seem to have collided.  First, he received the DMSM for his assignment ending in 1996 as corrective action in 1999.  Second, his 1996 DOD IG complaint was viewed by some at his new assignment as “too much excess baggage” to allow any award.

The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant is presently serving on active duty in the grade of master sergeant.  He has an established date of separation of     12 Oct 02.  A resume of his last ten EPRs follows:

	Closeout Date				Overall Rating

	  29 Oct 93					5
	  31 May 94					5
	  15 Apr 95					5
	 *15 Apr 96					5
	  15 Apr 97					5
	  15 Apr 98					5
	  15 Dec 98					5
	  15 Dec 99					5
	  15 Dec 00					5
	  15 Jun 01					5

*   Contested Report.

According to records provided by the applicant and the DOD Inspector General, on 23 April 1996, the applicant filed a complaint with the DoD IG alleging reprisal for a Fraud Waste and Abuse complaint he had made against members of his chain of command earlier.  The applicant alleged that the following actions were taken against him:

	  1.  Cancellation of his projected assignment to the On Site Inspection Agency (OSIA) Magna Operations Division, a Special Duty Assignment.

	  2.  Banning him from further assignment to any OSIA unit.

	  3.  Manipulation of his personnel records to indicate “member no longer qualified to remain within OSIA.”

	  4.  Recommending that he receive no decoration for four years and three months of service at the special duty unit he was assigned to.

	  5.  Denial of a 96-hour pass for reenlistment that his commander had previously stated he would receive.

	  6.  Writing his EPR that closed out 15 Apr 96 to reflect as poorly on him as possible.

The applicant’s case was referred to the OSIA IG, now called the Defense Threat Reduction Agency (DTRA), for investigation.  The DTRA IG concluded that the applicant was reprised against based on the following adverse personnel actions:

	  1.  Denial of an end of tour award.

	  2.  An adverse EPR for the period 16 Apr 95 through 15 Apr 96.

	  3.  Cancellation of his assignment to the On Site Inspection Agency (OSIA) Magna Operations Division.

The DTRA IG made the following recommendations affecting the applicant based on their findings:

1.  The applicant’s EPR closing out 15 Apr 96 be removed from the applicant's permanent military record.

	  2.  The applicant’s assignment to the DTRA Magna Division be restored.

	  3.  DTRA issue the applicant an appropriate end of tour award recognizing the applicant’s service for the period from 1993 to 1996.

The DTRA IG also noted that the time expended to complete their Report of Investigation was unacceptably too long.

Although the DTRA IG recommended that the applicant’s special duty assignment be restored, he served three years in an intervening assignment.  On 4 Apr 00, the applicant filed a complaint through the Defense Hotline alleging reprisal for his actions in the previously substantiated IG case.  The applicant alleged the following:

	  1.  He was denied an end of tour award for the period from July 1996 through April 1999.

	  2.  Adverse EPRs during the period from July 1996 through April 1999.

On 21 Apr 00, the applicant provided justification for his complaint being filed more than 60 days after he became aware of the reprisal action.  This was required because his complaint was filed more than 60 days after the closeout dates of the EPRs.  On 24 May 00 the applicant was advised by the DOD IG that his complaint regarding his EPRs was not considered timely and that there was no clear evidence to support reprisal regarding his not receiving an end of tour award.  On 19 Sep 00, the applicant responded to DOD IG indicating his disagreement with their findings and requested a reexamination of his complaint.  After receiving no response to his 19 Sep 00 letter, the applicant again, on 5 Apr 2001 wrote DOD IG requesting a response to his 19 Sep 00 letter.  On 10 Apr 01, DOD IG responded to applicant and indicated that after thoroughly reviewing the applicant’s reprisal complaint and supporting documents, they again determined there was not sufficient evidence of reprisal to warrant an investigation.

___________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPE recommends that applicant’s EPR closing 15 Apr 96 be voided and removed from his records.  The applicant has provided substantiated evidence that his EPR closing 15 Apr 96 was used as a tool for reprisal (IG, DTRA Memorandum, dated 4 Feb 99).

The complete evaluation is at Exhibit C.

AFPC/DPPPR addressed the decoration issues.  They recommend disapproval of the applicant’s request to change the effective date of his DMSM for the period Mar 92 through Jun 96 and also of his request for award of an end of tour medal for his assignment for the period Jul 96 through Apr 99.

Applicant’s claim that reprisal actions in the form of EPRs rendered and decorations not awarded were taken by his supervisors and commanders was verified.  The applicant’s DMSM could not be considered by the 97E8 promotion board because it was not in his records.  However, Air Force guidance requires a recommendation for a decoration to be submitted within two years of the act, accomplishment, or service, performed, and awarded within three years.

A recommendation package for a third DMSM was written on the applicant, but the appropriate officials in his chain would not endorse the recommendation.

The applicant was recommended for and awarded the DMSM for the period Mar 92 through Jun 96 within the time limits specified by AFI 36-2803.  An end of tour award is not automatic.  It was the prerogative of his chain of command not to endorse the package recommending him for a third DMSM.

The complete evaluation is at Exhibit D.

AFPC/DPPPWB recommends the applicant’s request for direct promotion to SMSgt be denied.  If the Board removes the contested EPR, they recommend that the Board direct supplemental consideration beginning with the 97E8 cycle.  They do not support supplemental consideration based on a change to his existing DMSM award date or based on the award of a new decoration.

The contested EPR closing 15 Apr 96 has been used in the applicant’s promotion consideration to SMSgt beginning with the 97E8 cycle.  The DMSM has been used in the promotion consideration beginning with the 00E8 cycle.  The applicant was ineligible for the 99E8 cycle because he declined to test, which is an automatic ineligible for promotion condition.

Although the applicant states this decoration was not considered until the 01E8 cycle, it was in fact, considered for the 00E8 cycle.

The complete evaluation, with attachments, is at Exhibit E.

AFPC/DPSFM recommends that the applicant be paid ADAP at the rate of $110 per month for the period of 10 Feb 97 through 13 May 99.  If the applicant’s assignment had not been cancelled as an act of reprisal for a protected communication, the applicant’s SDAP would have continued uninterrupted.  The applicant did not serve in a position or perform duties that authorized him SDAP in the subsequent assignment to the one cancelled due to reprisal.  Nonetheless, it was substantiated that the assignment was cancelled as an act of reprisal.

The complete evaluation is at Exhibit F.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force advisory opinions.

He applicant acknowledges the recommendation to void his 15 Apr 96 EPR.  He notes, however, that the action is six years too late for “full and effective relief.”

The applicant indicates that he remains a master sergeant today because the IG did not expeditiously investigate the allegations he made.  If his request for a direct promotion is not granted, he requests that the Board provide an explanation in its “Record of Proceedings” as to exactly how the supplemental promotion process will “provide full and effective relief” in his case.

In regards to DPPPR’s recommended disapproval of his request to change the effective date of his DMSM and disapproval of an end of tour award for the period Jul 96 through Apr 99, applicant explains why he made this request.  The applicant indicates that Air Force guidance does not address the timeliness of military awards and decorations presented as corrective action in reprisal cases.  Although AFPC/DPPPR indicates that they may not usurp the chain of command’s decision as to his end-of tour award, the Board has the authority to do so.  He ask the Board to carefully review the evidence he has presented.  He does not believe the Board will concur that a reprisal case pending adjudication should be considered “too much excess baggage" and used as a reason for denial of an end -of-tour award.

Applicant indicates that AFPC/DPPPWB does not address whether or not the supplemental process would be in the interest of justice or provide fair consideration in competition with his peers, but simply states there are no provisions for an automatic promotion as he requests.  He believes the provision for a direct promotion is contained in AFI 36-2603.  DOD Directive 7050.6 defines “Corrective Action” as any action deemed necessary to make the complainant whole.

The applicant points out that the delay in the investigation that destroyed his career saved the career of the colonel guilty of reprisal by allowing him time to retire before any action was taken.  He requests expedited consideration of his case.  His scheduled retirement date is 1 Oct 02.  In view of the fact that he is currently limited in assignment possibilities due to his high year of tenure (Sep 03) as a master sergeant, he has elected to retire.  He believes it would be in the best interest of the Air Force if he were notified of the Board’s decision prior to his retirement.

Applicant’s complete response is at Exhibit H.

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The Defense Threat Reduction Agency Inspector General substantiated that the applicant was the victim of reprisal and made specific recommendations to provide him relief.  The DTRA IG also noted that the time expended to complete the Report of Investigation was unacceptably too long and effectively precluded the Director, DTRA (or the Director, On-site Inspection Agency prior to 1 Oct 98) from exercising greater latitude of corrective and disciplinary action that may have been warranted in this case.  As such, we believe that, with the exception of direct promotion to the grade of senior master sergeant, the relief requested by the applicant is warranted.

	  a. In regard to the DMSM, First Oak Leaf Cluster, the applicant was eventually awarded, we disagree with the position of the Air Force that this award should not be considered for the earlier promotion cycles starting with cycle 97E8.  This award was issued as part of the remedy for the reprisal the applicant suffered.  It falls short, however, because it deprives the applicant of the same benefits he would have enjoyed had the decoration been awarded under normal conditions.  Although the decoration may have met the time requirements specified in AFI 36-2803, there is substantial doubt as to whether it would have been so delayed under normal circumstances.  We believe any doubt should be resolved in the applicant’s favor.  Since the contested award is a Department of Defense (DOD) award, the Board lacks the authority to change the issue date; however, given the closeout period of the award, we believe that the award should be considered for promotion starting with cycle 97E8.  

	  b. We concur with the opinions and recommendation of AFPC/DPSFM on the issue of Special Duty Assignment Pay (SDAP) and agree that the applicant should be paid SDAP for the period 10 Feb 97 through 13 May 99.  

	  c.  Regarding the lack of an end of tour award for the period from Jul 96 through May 99, the letter of support provided by the applicant’s former Operations Superintendent and the letters of commendation received by the applicant during the period in question raises doubt as to whether the applicant should have received a decoration during this period.  Again, we believe that the applicant should receive the benefit of the doubt and receive some measure of recognition.  As previously stated, the Board lacks the authority to award a DOD medal, but believes that an appropriate level Air Force award should be granted.  In that regard, we believe that an Air Force Meritorious Service Medal would be appropriate.

4.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting his promotion to senior master sergeant through the correction of records process.  While we note that the processing of his complaints through the appropriate channels were lengthy, we believe that our above recommended corrections provides him with thorough and fitting relief.  Promotion to the grade of senior master sergeant is very competitive and many factors are carefully assessed in scoring an individual record.  We believe that a duly constituted selection board is in the most advantageous position to make this determination and its prerogative to do so should only be usurped under extraordinary circumstances.  In addition, we believe the applicant, with the above recommended corrections to his record, can receive fair and equitable promotion consideration via the supplemental promotion process.  In the absence of clear-cut evidence that the applicant’s corrected record would have scored sufficiently high to warrant his selection for promotion to the grade of senior master sergeant, we do not recommend favorable action on his request for a direct promotion.

____________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

	  a. The Enlisted Performance Report for the period 16 April 1995 through 15 April 1996 be declared void and removed from his records.

	  b. He was authorized Special Duty Assignment Pay during the period 10 February 1997 to 13 May 1999.

	  c. He was awarded the Air Force Meritorious Service Medal for the period 30 July 1996 through 12 May 1999 for meritorious service while assigned to the 566th Operations Support Squadron, Buckley Air National Guard Base, Colorado.

It is further recommended that he be provided supplemental consideration for promotion to the grade of senior master sergeant (E-9) beginning with cycle 97E7 with inclusion of the Defense Meritorious Service Medal (DMSM), First Oak Leaf Cluster (1OLC), awarded for the period March 1992 to June 1996.

If selected for promotion to senior master sergeant by supplemental consideration, he be provided any additional supplemental consideration required as a result of that selection.

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 the promotion, such information will be documented and presented to the Board for a final determination on the individual’s qualifications for the promotion.

If supplemental promotion consideration results in the selection for promotion to the higher grade, immediately after such promotion the records shall be corrected to show that he was promoted to the higher grade on the date of rank established by the supplemental promotion and that he is entitled to all pay, allowances, and benefits of such grade as of that date.

____________________________________________________________________

The following members of the Board considered Docket Number 02-00731 in Executive Session on 13 September 2002, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 21 Feb 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPPE, dated 29 Mar 02.
     Exhibit D.  Memorandum, AFPC/DPPPR, dated 22 Apr 02
                 w/atchs.
     Exhibit E.  Memorandum, AFPC/DPPPWB, dated 24 Apr 02
                 w/atch.
     Exhibit F.  Memorandum, AFPC/DPSFM, dated 3 Jun 02.
     Exhibit G.  Letter, SAF/MIBR, dated 14 Jun 02.
     Exhibit H.  Letter, Applicant, dated 14 Jul 02.

                                   

AFBCMR 02-00731

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXXXXX, XXX-XX-XXXX, be corrected to show that:

		  a. The Enlisted Performance Report rendered for the period 16 April 1995 through 15 April 1996 be, and hereby is, declared void and removed from his records.

		  b. He was authorized Special Duty Assignment Pay during the period 10 February 1997 to 13 May 1999.

		  c. He was awarded the Meritorious Service Medal for the period 30 July 1996 through 12 May 1999 for meritorious service while assigned to the 566th Operations Support Squadron, Buckley Air National Guard Base,  Colorado.

		  d. He was promoted to the grade of senior master Sergeant   (E-8) effective, and with date of rank (DOR) of, 1 September 1998.

		  e. He was retired effective 1 October 2002 in the grade of senior master Sergeant   (E-8) rather than master sergeant (E-7).

		

AFBCMR 02-00731

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
				CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  XXXXXXXXXXXX, XXX-XX-XXXX

	It has been substantiated that the applicant was the victim of reprisal for protected communications under the military whistleblower program.  As such, the Board has recommended broad relief for the applicant with which I agree.  However, I believe given the circumstances of the applicant’s case, that in order to make him whole, the additional relief of direct promotion to senior master sergeant is warranted. Therefore, I direct that the applicant be made whole by promoting him to the grade of senior master sergeant effective, and with date of rank (DOR) of, 1 September 1998.