RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER: BC-2008-00760 XXXXXXX	COUNSEL:	NONE
HEARING DESIRED:	NO

THE APPLICANT REQUESTS THAT:
1.	Her Reentry (RE) code of 2X (first-term, second term or career airman considered but not selected for reenlistment under the Selective Reenlistment Program (SRP)) be changed and that she be reinstated back on active duty, without a break in service, with all back pay and allowances.

2.	That she be given an opportunity to test for promotion to Technical Sergeant (TSgt/E-6).

3.	In the alternative, to enlist in the Air Force Reserve (USAFR) or the Air National Guard (ANG).

THE APPLICANT CONTENDS THAT:
She should not have been discharged. She had personal and professional differences with her supervisor, resulting in her release from her supervision. She received a referral enlisted performance report (EPR), with a rating of a “4,” closing on
10 Jul 05, which was subsequently removed by the Evaluation Reports and Appeals Board (ERAB) in May 06. Under the new supervisor, she  received a “5” rating on her EPR closing
9 Dec 05. However, she was placed back under her previous supervisor and received a rating of a “3” on that EPR, closing in May 06, which was subsequently removed by the ERAB. She filed an Article 138 claim, in May 06 against her commander. Her last EPR, closing in Feb 07, recommended “promote now;” however, she was never afforded this opportunity.

She believes her supervisor reprised against her by downgrading her mid-term feedback report based on information her supervisor overheard while she was engaged in “protected communication” with the acting first sergeant.

In support of her appeal, the applicant provides a personal statement; copies of her performance reports, and additional evidence submitted during the incidents in question.

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

STATEMENT OF FACTS:
While serving in the grade of staff sergeant (SSgt/E-5), the applicant received an Article 15 for willfully disobeying a lawful order not to enter the civil engineering dormitory, on or about 7 Sep 02. Her punishment consisted of a suspended reduction to senior airman (SrA/E-4) and suspended forfeiture of pay for $876.00 until 6 Apr 03.

On 6 Dec 06, the applicant’s supervisor recommended her for reenlistment; however, her commander disagreed with the recommendation and nonselected her for reenlistment. The commander cited numerous infractions as the reason for denial. On 20 Feb 07, the applicant’s appeal was denied by the appeal authority and she acknowledged the appeal denial on 2 Mar 07.

The applicant’s last 10 performance report profile follow: PERIOD ENDING	OVERALL RATING
10 Nov 99	5
10 Nov 00	5
14 Dec 01	5
14 Dec 02	4 (Referral Comments)
14 Dec 03	5
14 Dec 04	5
10 Jul 05	LOE (Removed by ERAB)
09 Dec 05	5
12 May 06	LOE (Removed by ERAB)
27 Feb 07	5
The applicant was honorably discharged under the provisions of AFI 36-3208, on 27 Mar 07, with a reason for separation of reduction in force, and an RE code of 2X.  She was credited with
11 years, 8 months, and 22 days of active duty service.
In Jan 08, an Inspector General (IG) investigation was conducted based on allegations by the applicant that her supervisor reprised against her by downgrading her mid-term performance feedback based on information she overheard while the applicant had “protected communication” with the acting first sergeant. The allegations submitted to the IG follows:

1)	The applicant’s supervisor downgraded her EPR, which closed out on 10 Jul 05, in reprisal for her protected communication with the acting first sergeant. (Substantiated)

2)	She	was	administered	a	Letter	of	Reprimand	(LOR),	on
5 Jul	05,	by	her	supervisor		in	reprisal	for	protective communication to her commander.	(Unsubstantiated)

3)	She was administered an LOR, on 8 Mar 06, by her supervisor in reprisal for protective communications with her commander and the wing deputy director. (Unsubstantiated)

4)	Her commander administered an LOR, on 19 Apr 06, in reprisal for her protective communication with the wing deputy director and the wing IG. (Unsubstantiated)

5)	She	was	administered	an	LOR	by	her	commander,	in	
reprisal	for	her	filing	an	Article	138	grievance.	
(Unsubstantiated)
In conclusion, the IG substantiated Allegation 1 that based on the preponderance of evidence the applicant’s supervisor reprised against  her by using information obtained from a protective communication to downgrade a performance report. The mid-term feedback downgrade was based on this information which led to the “4” rating on the EPR.

In the other four allegations, they did not substantiate the applicant was reprised against by the issuance of the 5 Jul 05 and the 8 Mar 06 LORs from her supervisor and/or based on protective communication with her commander; she was not reprised against by her commander, based on protective communication with wing deputy director or her filing of an Article 138 grievance, nor did they find an abuse of authority by her supervisor or commander. (See IG Report at Exhibit C)

As a result, the applicant’s EPRs closing on 10 Jul 05 and
12	May 06 were removed from her record.
The application was administratively closed due to the pending IG report and reopened 15 Oct 09.

THE AIR FORCE EVALUATION:
AFPC/DPSOS recommends the applicant’s Separation Program Designator (SPD) of “KCC” and narrative reason for separation of “Reduction in Force” be changed to “Completion of Required Active Service” and a corresponding SPD code of “LBK.” In addition, they noted this change would entitle the applicant to

one-half separation pay. Further, this does not infer that the discharge was unjust or improper, rather the separation code entered on the DD Form 214, was incorrect.

They found the discharge was consistent with the procedural and substantive requirements of the discharge instruction, with the above noted exceptions. They noted a change to the separation code and narrative reason for separation would not result in a more favorable reenlistment condition.

The complete AFPC/DPSOS evaluation, with attachments, is at Exhibit D.

AFPC/DPSOE provides no recommendation. Based on the applicant’s DOR to SSgt, she was considered and nonselected for promotion to technical sergeant (TSgt) three times (cycles 0436 – 06E6) before her separation in Mar 07. The applicant contends that she was not given an opportunity to be considered for promotion prior to separation; however, her final EPR for the period
13	May 06 – 27 Feb 07 would not have been used in the promotion process for cycle 07E6, because the close out date was after the Promotion Eligibility Cutoff Date (PECD) of 31 Dec 06. The applicant became  ineligible for promotion consideration for cycle 07E6 when she was denied reenlistment on 20 Dec 06.

The complete AFPC/DPSOE evaluation is at Exhibit E.
AFPC/DPAA5 provides no recommendation. They noted should the applicant be reinstated on active duty, they will provide an assignment once she has been classified into an Air Force Specialty Code (AFSC). Her assignment preference will be a consideration; however, her assignment will be based on Air Force needs.

The complete AFPC/DPAAT evaluation is at Exhibit F.
AFPC/DPSOA recommends denial, stating, in part, they found no evidence of an error or injustice in the applicant’s record or that submitted by the applicant. They note commanders have selective reenlistment selection or nonselection authority; will make selection or nonselection decisions that are consistent with other qualitative decisions, such as promotions, based on substantial evidence. Commanders will consider the EPR ratings, unfavorable information from any substantiated source, the airman’s willingness to comply with Air Force standards and the airman’s ability or lack to meet required training and duty performance standards.

The applicant has based her request on the fact that personal and professional differences between her and the supervisor is the reason behind the denial of reenlistment.  However, another

supervisor recommended her for reenlistment and the commander did not agree and she was nonselected for reenlistment.

The complete AFPC/DPSOA evaluation, with attachment, is at Exhibit G.

AFPC/DPSIDEP did not make a recommendation. However, they noted the applicant had two EPRs removed covering the periods of
15 Dec 04 through 10 Jul 05 and 10 Dec 05 through 12 May 06. Because of the length of time since the reports were removed, they cannot confirm or deny that the reports were removed due to the substantiated allegation regarding the EPRs mentioned in the application.

The complete AFPC/DPSIDEP evaluation, with attachments, is at Exhibit H.

AFPC/JA recommends denial. The applicant utilized various means to seek redress for alleged errors or injustice; to include the Inspector General (IG). This resulted in the removal of two of the applicant’s EPRs.

On the AF Form 418, the applicant’s commander cited numerous adverse administrative actions showing disobedient, insubordinate and unprofessional conduct by the applicant; including an Article 15, four letters of reprimand (LOR), an Unfavorable Information File (UIF), and placement on the Control Roster. The commander’s  decision was consistent with the governing Air Force instructions and was supported by substantial evidence. The nonselection for reenlistment was properly processed; to include the applicant’s opportunity to appeal the commander’s decision. There was no error in the nonselection for reenlistment.

Even though there is no error in the applicant’s case, there remains the potential issue of injustice. However, there is no injustice in this case because the applicant’s nonselection for reenlistment was an appropriate exercise of authority by the commander and appellate authority; supported by a documented failure by the applicant to conform her behavior to Air Force standards.

The complete AFPC/JA evaluation is at Exhibit I.

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

The applicant reiterated her original contentions and amended her request to a change to her RE code to avail an opportunity to enlist in the USAFR or ANG.

She believes that her career of over 11 years ended based on issues resulting from 93 days of supervisor misconduct against her.  She requests the Board, when considering her case, to ask;
1) when did the trail of administrative paperwork begin; 2) why didn’t anyone in her chain of command mentor her or the supervisor; 3) why did the one commander reenergize a personnel issue resolved by his predecessor; 4) why did the ERAB remove two reports written by the same supervisor; 5) why did the General direct her removal as supervisor; 6) why did the IG substantiate that there was an injustice done on her downgraded EPR and midterm feedback; and finally, 7) is it possible that the supervisor’s misconduct initiated the detrimental effect on the chain of events that ultimately resulted in her nonrecommendation for reenlistment? Had she not been placed back into the office and under her previous supervisor, she would still be in the Air Force today.

She provides a chronological summary of the events prior to and subsequent the contested period and submitted additional documents to support her appeal.

The applicant complete response, with attachments, is  at Exhibit K.

THE BOARD CONCLUDES THAT:
1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The application was timely filed.
3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice in regard to the applicant’s claim of reprisal and opportunity for promotion to TSgt. We note the applicant has alleged whistleblower retaliation in violation of Title 10 USC 1034 from her superiors. However, based upon our own independent review of the available evidence, the applicant has not established the LORs by her supervisor and commander were acts of reprisal. Additionally, while we note the IG Report substantiated the applicant was reprised against in the downgrade of her EPRs closing 10 Jul 05 and 12 May 06; nonetheless, as a result of the IG investigation, the ERAB removed those reports and the applicant was given an opportunity for promotion consideration without the 10 Jul 05 report. Although the 12 May 06 report was also removed, the applicant was not considered for promotion during cycle 07E6 because she became ineligible for promotion as a result of being denied reenlistment under the SRP.
1.	

In her request, the applicant did not ask the Board to address the findings of the IG report. However, in our view, we find the IG report was adequate, not technically flawed, and addressed the applicant’s allegations.

4.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice in regard to the applicant’s RE code. We took notice of the applicant's complete submission in judging the merits of the case; however, we find no evidence of an error or injustice that occurred during her consideration under the SRP. The applicant contends, among other things, that she should not have been discharged and that her commander’s actions were not in accordance with the governing Air Force Instructions; however, in this respect, we note the comments by AFPC/JA that there was no error in the processing of the applicant’s consideration for reenlistment. Therefore, we are not persuaded that a change to the applicant’s RE code is warranted. In view of the above and in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought.

Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant a change to the applicant’s narrative reason for separation and the corresponding SPD code. Based on the review of the applicant’s record, DPSOS indicates there was an error on the DD Form 214; however, they note that this error does not infer that the applicant’s separation was unjust or improper; rather the separation code entered on her DD Form 214 was incorrect. DPSOS  has adequately addressed the applicant’s issues and we are in agreement with its opinion and recommendation. Therefore, we conclude the narrative reason for separation and the corresponding SPD be changed as recommended. In view of the above, we recommend the applicant’s record be corrected to the extent indicated below.

THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on
27 March 2007, she was discharged under the provisions of AFI 36-3208, Table 9-1, Rule 10, “Completion of Required Active Service” with Separation Program Designator (SPD) Code of LBK, and authorization to one-half separation pay.

The following members of the Board considered AFBCMR Docket Number BC-2008-00760 in Executive Session on 26 January 2011, 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 08, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	SAF IG Report, dated 20 Oct 08, (withdrawn).
Exhibit D.	Letter, AFPC/DPSOS, dated 16 May 08, w/atchs. Exhibit E.	Letter, AFPC/DPSOE, dated 1 Dec 09.
Exhibit F.	Letter, AFPC/DPAA5, dated 9 Dec 09.
Exhibit G.	Letter, AFPC/DPSOA, dated 2 Apr 10, w/atch. Exhibit H.	Letter, AFPC/DPSIDEP, dated 9 Apr 10,
w/atchs.
Exhibit I.	Letter, AFPC/JA, dated 12 May 10. Exhibit J.	Letter, SAF/MRBR, dated 4 Jun 10. Exhibit K.	Letter, Applicant, 13 Jun 10, w/atchs.