ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-02340 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be reinstated in the Air Force Reserve. 2. His two deferrals for promotion to the grade of major be removed from his records. 3. His Letter of Reprimand (LOR) be removed from his records. 4. His referral Officer Performance Report (OPR) rendered for the period 28 Oct 04 thru 27 Oct 05 be removed from his records. 5. He be restored to flying status. 6. He receive service credit from Sep 06 until the date of his reinstatement. 7. He be retroactively promoted to the grade of major. ________________________________________________________________ STATEMENT OF FACTS: On 4 Dec 07, the Board considered and denied the applicant’s request that his reassignment to inactive status be changed to indicate reassignment to the Inactive Status List Reserve Section (ISLRS), and that his two deferrals for promotion to the grade of major be removed from his record. For an accounting of the facts surrounding his previous request and the rationale of the Board’s earlier decision, see the Record of Proceedings at Exhibit H (with Exhibits A thru G). On 17 May 12, the applicant’s counsel submitted a request for reconsideration. Counsel noted the Board’s decision in the matter of another officer demonstrated a bias and history on the part of the 93rd Fighter Squadron Commander (93 FS/CC), of wrongfully persecuting officers in his command. Counsel states that this is particularly relevant in the applicant’s case where one of the primary motivations behind the 93 FS/CC’s improper treatment of the applicant was retribution for his having “aligned himself” with the wrong person. The applicant states that although not reported in his previous application due to the difficulty of trying to prove it, his current request for relief is due to the injustices caused by the abuse of authority by his former commanders. The applicant states that he had been working towards collecting evidence to finally bring to light the whole truth and circumstances behind his dismissal from the 482nd Fighter Wing (FW) at the hands of the 93 FS/CC. He petitioned the chain of command for due process in an attempt to get the Air Force to investigate or even consider his case. There is a clear documented trail of these pleas for help with the 93 FS/CC’s abuse of authority that dates back to Jul 03, all of which were ignored. The applicant states that the true and vindictive nature of the 93 FS/CC and his willingness to abuse his authority to serve his personal agenda and biases were finally confirmed by the Air Force Office of Special Investigations (AFOSI). Captain H’s---- -- second BCMR application was granted once the AFOSI discovered extensive and irrefutable evidence to what the Commander, AFOSI labeled as “clear and disturbing evidence of criminal misconduct on behalf of Captain H------‘s commander.” The applicant contends that this is the same commander who abused his authority with him, and whom he had been attempting for years to get the Air Force to at least investigate his actions. At every attempt, the Air Force Reserve Center (AFRC) refused to take any action despite clear evidence it was presented with and continued to cover for the 93 FS/CC. These findings by AFOSI were finally, and fortunately, used to exonerate and reinstate Captain H------. The applicant states that he was contacted by the Air Force Inspector General (AF/IG) who is investigating now Brigadier General P------ for general officer misconduct. While he is not privy to the findings, he was informed by the AF/IG investigating officer (IO) that he may have also been a victim of General P------‘s abuse of authority. He agreed with that assessment; provided a statement and added his name as a complainant in the ongoing case. By letter dated 5 Jun 12, the applicant further explained his request for reconsideration. On 11 Feb 13, the applicant was notified that the SAF/IG did not substantiate his allegations of reprisal under the provisions of Title 10, USC 1034. SAF/IG stated that the IG investigation found no evidence to support the allegations against two former commanders of the 93rd FS. Specifically, the investigation determined that the adverse actions, which included a LOC, referral OPR, and LOR, were not arbitrary and capricious nor were they the result of a PC. A preponderance of the evidence showed that a pattern of performance and behavior existed which supported the actions taken by the commanders. In addition, SAF/IG reviewed the ROI and approved the findings. Additionally, the Department of Defense IG (DoD/IG) conducted a thorough review of the report and found that it adequately addressed his allegations, and concurred with its findings. The applicant’s complete submission, with attachments, is at Exhibit I ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant alleges he has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC § 1034). Based on this, he is seeking a myriad of relief as indicated in the attached DD Form 149, Application for Correction of Military Records, with a 17-page brief and other evidence. We note that the SAF/IG investigated the allegations against two former commanders of the 93rd Fighter Squadron. However, they found no evidence to substantiate the applicant’s claims. The applicant asserts that his former commander initiated several adverse actions against him based on his bias against “guard babies” and him having “aligned himself” with the wrong person as retribution for writing an affidavit in support of a former co-worker’s rebuttal to a Letter of Reprimand (LOR) issued by his former commander. SAF/IG determined that the adverse actions, which included two Letters of Counseling (LOC), referral Officer Performance Report (OPR), and an LOR, were not arbitrary or capricious nor were they the result of a protected communication. The applicant also asserts that the chain of command was illegally and unjustly targeting certain members of the command. In essence, he believes his appeal is similar to AFBCMR 2007-03405 and that relief should be considered using the same rationale to grant his request. However, we disagree. In this regard, every case before this Board is considered on its own merit since the circumstances of each case are seldom identical. In view of this, although we strive for consistency, we are not bound by precedent and evaluate the merits of each individual case to determine whether the applicant has been the victim of an error or injustice. After a careful review of AFBCMR 2007-03405, it was noted that the applicant in that case was the victim of substantiated reprisal. However, in the applicant’s case the evidence reveals that a pattern of performance and behavior existed which supported the actions taken by the commanders, rather than an act of reprisal. Additionally, we note that the applicant filed several IG complaints; however, SAF/IG and DoD/IG reviewed the allegations, to include alleged reprisal, and each time, the findings were unsubstantiated. Nevertheless, based on our own independent review, we did not find the former commander’s actions were arbitrary or capricious or that their actions were motivated in retaliation to making a protected communication. Other than his own assertions, the applicant has provided no evidence, to include an affidavit from a former commander, that would convince us that he has been the victim of an error or injustice. Therefore, it is our determination the applicant has failed to sustain his burden of having suffered either an error or injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 2. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2007-02340 in Executive Session on 21 May 13, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit H. Record of Proceedings, dated 5 Feb 08, w/atchs. Exhibit I. Letter, Counsel, dated 17 May 12, w/atchs. Exhibit J. Letter, Applicant, dated 5 Jun 12. Exhibit K. Letter, SAF/IGS, dated 11 Feb 13.