RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-02503
								INDEX CODE: 110.03, 111.02
		COUNSEL: 

								HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.  She be appointed a military attorney under the provisions of Title 10 United States Code (USC) 1034, Military Whistleblower Protection Act (MWPA), to work in conjunction with her counsel and representatives.

2.  She be granted the right under the MWPA, to depose and serve interrogatories upon adversarial parties to fully prosecute her claims before the Board.

3.  The AF Form 910, Enlisted Performance Report (EPR) closing-out on 24 Feb 01, be voided and removed from her records.

4.  The AF Form 910, Enlisted Performance Report (EPR) closing-out on 24 Feb 03, be voided and removed from her records.

5.  The AF Form 910, Enlisted Performance Report (EPR) closing-out on 24 Feb 05, be voided and removed from her records.

6.  She be progressively advanced to the grades of technical sergeant (E-6), master sergeant (E-7), and senior master sergeant (E-8) as determined by the Board with all retroactive pay and benefits.

7.  She be reimbursed in the amount of $2,800.00 for denial of off base housing or an amount the Board deems appropriate to cover the period of Feb 07 through 2 Sep 07.

8.  Her records be corrected to show that she was placed on medical hold on 14 Jan 06, rather than 23 Apr 06, and receive all pay and benefits covering the period 14 Jan 06 through 23 Apr 06, at the rank of senior master sergeant (E-8).

9.  The Board recommend that all Dobbins AFB, officials who violated DoD Directive 7050.6, Military Whistleblower Protection, dated 23 Jun 00, Section 4.4, be held accountable under the Uniform Code of Military Justice (UCMJ) to establish a 10 USC 1034 precedent.

10. The Board issue an advisory opinion to determine if a service member, protected under 10 USC 1034, who is subjected to reprisal in violation of Article 92, is legally considered a crime victim, in the interest of justice and to ensure all Feres Doctrine Mandates (FDM) benefits under the Department of Veterans Affairs (DVA) are properly issued in her behalf.

11. She be permanently medically retired with a 100 percent disability rating rather than temporarily medically retired.

12. She be granted any and all other relief the Board and the Secretary of the Air Force deem appropriate in the interest of justice and in her best interest.

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

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STATEMENT OF FACTS:

On or about 3 Mar 01, the applicant filed a whistleblower reprisal complaint.  She alleged that her rater gave her an unfavorable EPR for the rating period closing-out on 24 Feb 01 in reprisal for filing an Inspector General (IG) complaint, contending she was not provided adequate training.  

Her EPR profile follows:

	PERIOD ENDING	EVALUATION

	 24 Feb 99		4
	*24 Feb 01		2(Referral)
	*24 Feb 03		4
	*24 Feb 05		4

* Contested Reports.

The Secretary of the Air Force IG (SAF/IG) investigated her allegations and concluded that her rater gave her an unfavorable EPR in reprisal.  The Department of Defense IG (DOD/IG) reviewed the SAF/IG report of investigation, as required under 10 USC 1034, but did not agree with the SAF/IG findings regarding the EPR.  The DOD/IG concluded the preponderance of evidence established the applicant’s lowered performance ratings reflected a decline in her job performance and substandard conduct.

On 26 Jun 07, the Informal Physical Evaluation Board (IPEB) found the applicant’s mental health condition prevented her from reasonably performing duties commensurate with her office, grade, rank, and rating.  The IPEB found her unfit and recommended she be discharged with severance pay and a compensable disability rating of 10 percent.  The applicant did not agree with the findings of the IPEB and requested a formal hearing.

On 20 Sep 07, the Formal Physical Evaluation Board (FPEB), found her unfit due to generalized anxiety disorder, social and industrial (S&I) definite, major depressive disorder, single episode, severe S&I definite, panic disorder without agoraphobia S&I definite, and recommended that she be placed on the Temporary Disability Retired List (TDRL) with a 100 percent compensable disability rating with reevaluation in 12 months.  She agreed with the findings and recommendations of the FPEB and on 24 Oct 07, was placed on the TDRL in the retired grade of staff sergeant with a compensable percentage for physical disability of 100 percent.

She completed a total of 5 years, 1 month and 15 days of active duty service.   She completed 16 years and 1 day service for basic pay.

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AIR FORCE EVALUATION:

ARPC/JA recommends relief, and states, in part; the applicant suffered a downgraded EPR due to lack of training and lack of response from her supervisors or chain of command.  They were aware that she raised the issue and admitted that her training was deficient, yet did not take the necessary steps to correct the situation.  

She approached an Inspector General (IG) official during the next EPR rating after 1999, and raised the issue of her lack of training.  Her next EPR contained substantially lower ratings than her first EPR.  There were no judicial or nonjudicial proceedings against the applicant, but neither was any counseling noted.  The lack of unit documentation is troubling as any deficiencies should have been identified by then.  In light of what she raised to her commander, the lack of documentation and the lack of any apparent remedial action, the concerns are heightened as to the lack of unit response.  Should the Board grant relief as to her downgraded EPRs, the normal substitutions in personnel records would suffice.

ARPC/JA will not speculate as to which grade the applicant would have been promoted had there been adequate training and no downgrade after her protected communications.  They do not recommend any disciplinary actions be taken against squadron personnel, including the chain of command. There is no credible evidence that anyone intentionally targeted her for retaliation.  Rather, this appears to be more a case of bureaucratic inertia than deliberate actions.

The ARPC/JA evaluation is at Exhibit C.

AFRC/A1B recommends denial of the applicant’s request in total.  A1B states, in part, the rationale for their decision is based on the DoD/IG decision, dated 1 Sep 04, and the findings therein, which invalidates the applicant’s allegations.  Her allegations were not substantiated, and therefore, there is no resultant basis to support her request.

The AFRC/A1B evaluation, with attachment, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The ARPC/JA recommended the Board grant appropriate relief as she suffered an injustice.  ARPC/JA further states the preponderance of evidence substantiates the applicant’s claim against her chain of command of failure to train, and retaliation based upon protected communications.

The applicant’s concerns in not being properly trained and her efforts to seek training, resulted in a calculated plan to transfer her into an overage position without her knowledge or consent and not in compliance with Air Force regulations.  The organization’s efforts to force her out of the squadron to an overage position in the long run was detrimental to the best interests of the Air Force mission and to her mental and physical health and well-being to say the least.  A continuous series of placement in overage positions unquestionably hampered her rights to advancement to the pay grades of E-6, E-7 and E-8.  Her squadron acknowledged her training problems and admitted the unit had not done a good job of training her.  The actual wording used was “we were derelict”, which is again a violation of the UCMJ.  More damaging than the squadron commander’s admission, was the fact that her records indicated no consistent on-the-job training records or reasons for the omissions.  The ARPC/JA findings support her requests for advancement to E-6, E-7, and E-8, with retroactive pay in the interest of justice.

Additionally, the unit showed neither formal written counseling, nor memorandums-for-record to substantiate any claims of inadequate duty performance, and there is no feedback documentation to show her duty performance was inadequate.

Clearly, the findings of AFRC/JA and that of the DoD/IG are completely opposite.  The facts and evidence in the 10 USC 1034 record have never changed. However, it took over seven years for an Air Force legal entity to acknowledge what the DoD/IG refused to recognize.  The delay in acknowledging that an error or injustice occurred, gave rise to Dobbins Air Force Base officials being afforded carte blanche to continue the injustice against the applicant.  It was the DoD/IG’s failure to act under the MWPA that ultimately injured the Air Force and contributed to Dobbins AFB official’s ability to chill and neutralize her career advancement opportunities.  Applying the benefit of the doubt standard, she should be at the pay grade of E-8 and afforded all pay and entitlements for each rank in accordance with the advancement cycles.

The FPEB found her 100 percent disabled not 30 percent, and recommended she be temporarily retired.  The violations in this case scream for Article 92 relief against all respondents the Board finds responsible.  She hopes the Secretary of the Air Force will involve himself as this case can set the tone for intra-Air Force and potentially intra-military justice reform under the IG Act, without having to petition for judicial review.  In all, with the AFPC/JA findings and the FPEB action in this case it would seem beneficial to the Air Force to send a message to all its members that willful and intentional violations of law in reprising against any airmen will not be tolerated.

She was deprived of the right to advancement to E-6, E-7, and E-8 due to the unprofessional leadership of her former commander and his predecessor, who subsequently became the Dobbins AFB IG, and wrongly involved himself in the IG process from the onset of her “failure to train” grievance.  

She disagrees with the JA finding that states, “There is no direct line established for her protected communication to her downgraded EPR.  The EPR was due Feb 01 but was not accomplished until months later.  She filed her grievance in Mar 2001, and believes this is why she was forced out the squadron in Apr 01.  The EPR was accomplished by individuals after their being made aware they were named in the IG grievance.  

In regard to the JA statement that, “There is no need for disciplinary action.”  She disagrees, and believes no person is exempt from compliance with Federal law.  Violations of law merit disciplinary actions in the interest of justice and in maintaining good order and discipline.  

Finally, ARPC/JA did not comment as to whether a reprisal is a crime for purposes of Article 92 relief in this case.  Thus, she will defer this legal question and decision to the AFBCMR.

The findings and conclusions of the AFRC/JA advisory are completely inconsistent with the totality of the evidence in the records and should be dismissed in its entirety as frivolous.  The entire advisory is both unethical from a legal standpoint and defies reality as it advances before the Board, knowingly false and misleading information.

The evidence of record clearly establishes that she was not being properly trained and that her chain-of-command was derelict in training her.  

The actions of the DoD/IG to unsubstantiate the AFRC/IG findings of reprisal are pending federal judicial review under the provisions of the Federal Tort Claims Act (FTCA).  

Thus, the Board is urged to give no substantive weight to the AFRC/A1B legal advisory as it proclaims it is solely based upon the findings and conclusions of the DoD/IG.  The conflict of interest that gave rise from the onset of her failure to train grievance has delayed the processing of this 10 USC 1034 request.  In this regard, the base IG at that time was her former commander when the training problems gave rise.

Contrary to the DoD/IG finding that her performance of duty was substandard, the DoD/IG and SAF/IG records actually show that during her entire assignment to the squadron, she was highly involved with her unit and the Wing in general.

The applicant’s complete response, with attachments is at Exhibit F.

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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 an injustice to warrant correcting the applicant’s records to show that she was continued on active duty during the period 14 Jan 06 through 23 Apr 06.  Evidence has been presented that she was involuntarily removed from orders on 14 Jan 06.  However, based on established AFRC guidance, she should not have been involuntarily released from the original orders until her LOD medical condition was resolved.  Therefore, we recommend that her records be corrected to the extent indicated below.

4.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant favorable consideration of the remainder of her requests.  After thoroughly conducting our independent review of the evidence of record and noting the contentions and documentary evidence presented by the applicant’s counsel, we are not persuaded the applicant has been the victim of reprisal.  Further, based on a totality of the evidence presented, we are not persuaded the applicant has met her burden of establishing the existence of an error or an injustice in her records.  In this respect, we note the following:

	a.	The SAF/IG investigated the applicant’s allegations under the MWPA and concluded the rater rendered an unfavorable EPR in reprisal for her filing IG complaints that she was not provided adequate training.  As required by 10 USC 1034, the DoD/IG reviewed the SAF/IG report but did not agree with the substantiated finding with regard to the EPR, closing 24 Feb 01.  The DoD/IG concluded the preponderance of evidence established that her lowered performance ratings on the report reflected substandard conduct and a decline in her job performance and that the report was an accurate evaluation of her performance during the contested period.  With respect to her allegations of inadequate training, although the DoD/IG agreed with the SAF/IG finding that her training was delayed due to manning shortages and an inexperienced supervisor, they also found that her chain-of-command made an effort to rectify the problem by providing her with an appropriate level of training.  At the request of the applicant’s counsel, the DoD/IG reexamined the documentation contained in her case file and concluded that new evidence had not been provided to warrant overturning their conclusion that she had not been the victim of reprisal.  The findings of the DoD/IG appear to be supported by the evidence of record and the applicant has failed to provide sufficient evidence to warrant overturning their decision.

	b.	There has been no showing the DoD/IG investigation was improperly conducted.  Given the presumption of regularity in the operation of governmental affairs and in the absence of corroborative documentary evidence establishing impropriety, it is presumed that officers of the government, like other public officials, discharge their duties correctly, lawfully, and in good faith.  The applicant has not provided sufficient evidence to overcome this presumption.

	c.	We are not persuaded the contested EPRs are inaccurate assessments of her performance during the contested periods.  While it appears a personality conflict may have existed between the applicant and her rater, this in and of itself, does not warrant removal of a report, absent a showing the rater was incapable of rendering a fair and unbiased evaluation of her performance during the contested period.  In our opinion, while the relationship between the applicant and her evaluators may have been strained, they were responsible for assessing her performance and in the absence of evidence to the contrary, are presumed to have rendered their evaluations, honestly and to the best of their ability, based on their observations of her performance as it actually occurred and not on speculation of what the performance might have been had certain conditions, even essential ones, been met.  This Board has often been called upon to void reports reflecting diminished performance on the basis of external factors, e.g., illness, family crisis, etc., but has often determined that even if one concedes that factors impacted the performance, the actual performance was accurately documented.  We have thoroughly reviewed the documentation provided with this application and the evidence of record, and find no persuasive evidence showing she was rated unfairly or the evaluators were biased and prejudiced against her.  The ARPC/JA opines that based on what is missing from the applicant’s record, i.e., Memorandums for Record documenting deficiencies, formal training recommendations, or feedback sessions, one can infer that some form of retaliation occurred.  JA further states that although there is no direct line established between her protected communications and the downgraded EPR (one of several prerequisites for a finding of reprisal), there are no other apparent explanations for the lower performance ratings.  While we agree there may be no readily apparent reasons for the lower performance rating, we do not come to the inescapable conclusion there are no other possible reasons.  We note that her protected communication dealt with her lack of receiving adequate training, training which we assume was essential in order for her to perform at the highest level.  As such, we must assume she was therefore incapable of performing at the highest level.  In our view, the arguments made on behalf of the applicant address the reasons why her performance was affected but does not sufficiently show the contested reports are inaccurate assessments of her performance.  We further note that while feedback is certainly desired and to be expected, Air Force policy holds that failure to conduct a feedback session is not a valid basis to invalidate a performance report.  In this applicant’s case, although we agree that she should have been provided written performance expectations employing the appropriate feedback form in accordance with established policy, the witness statements are replete with corroborative testimony that she was given sufficient verbal feedback, routinely displayed a negative attitude to the extent that her work and the morale of the unit suffered because she was spending her time complaining rather than working, developed an adversarial attitude, harbored ill-feelings and publicly expressed a personal vendetta against her supervisor, lacked initiative, and her technical skills were not up to standard, all of which impacted upon the overall evaluation of her performance.  We also note that while the reports closing 24 Feb 03 and 24 Feb 05 contain administrative errors, we do not feel these errors detract from the overall evaluations of her performance which indicate that she is ready for promotion.

	d.	We recognize that promotion is not a reward for past service but rather advancement based on past performance and future potential.  In the applicant’s case, she has in essence, requested promotion as recompense for the perceived alleged injustices perpetrated against her.  However, her contention that she would have otherwise been progressively promoted is based solely on speculation, rather than the evidence of record.

	e.	Although the applicant requests reimbursement for the expenses incurred for off-base housing during the period from 17 Feb 07 through 2 Sep 07, she has not provided evidence that substantiates that a determination was made that on-base quarters were not available or that she was authorized to reside off base during this period.

	f.	In regard to the applicant’s request that she be permanently disability retired with a 100 percent compensable rating, the Board notes that on 13 Nov 07, she was placed on the TDRL with a compensable rating of 100 percent, with reevaluation in 12 months.  As of this date, she remains on the TDRL at a 100 percent compensable disability rating and is awaiting reevaluation.  Since she is currently undergoing evaluation within the DES - the proper forum for determining her fitness for duty and whether or not she should be permanently retired with a 100 percent compensable disability rating, retained on the TDRL, or returned to duty; and there is no indication that her medical condition has stabilized; her request for disability retirement is premature at this time.  If, however, she still believes her records are in error or unjust after her TDRL reevaluation and a final disposition of her case within the DES is reached, she may request reconsideration of this portion of her application at that time.

	g.	While the Board has a statutory mandate to correct any military record when it considers it necessary to correct an error or to remove an injustice, it does not issue advisory opinions.  As such, this portion of the application is not within our purview or authority.  Furthermore, although we can request further investigation of the allegations of reprisal, we find no basis to do so here, as her complaint has been thoroughly investigated by both SAF/IG and DoD/IG, is well documented, and there has been no showing of any impropriety in the process.

4.  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 issues involved.  Therefore, the request for a hearing is not favorably considered.  In view of this, and given our above findings that she has not provided sufficient evidence to establish that she has been the victim of reprisal, there exists no basis to favorably consider the remainder of her requests under the MWPA.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that she was not released from active duty on 13 January 2006, but was continued on active duty through 23 April 2006.

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The following members of the Board considered Docket Number BC-2007-02503 in Executive Session on 15 and 23 Jan 09, 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 30 Aug 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memo, ARPC/JA, dated 5 Oct 07.
    Exhibit D.  Memo, AFRC/A1B, dated 9 May 08.
    Exhibit E.  Letter, SAF/MRBR, dated 6 Jun 08.
    Exhibit F.  Letter, Applicant’s Counsel, dated 6 Jun 08,
                w/atchs.