RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02987 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her AF Form 911, Enlisted Performance Report (EPR) (MSgt thru CMSgt), rendered for the period 19 Feb 11 thru 7 Jul 11, be declared void and removed from her records. _________________________________________________________________ APPLICANT CONTENDS THAT: In a four-page statement the applicant presents the following major contentions: 1. She was notified the 693rd Intelligence, Surveillance and Reconnaissance Group Commander (693 ISRG/CC) had directed she be removed from her current position as the Mission Support Flight Superintendent and be placed under the direct supervision of the 693 ISRG/CC because the position required someone that was focused on the mission and people during a time of war. 2. During the contested EPR reporting period she was not sure who her actual supervisor and rater were. She was undergoing a medical evaluation board (MEB) for inflammatory bowel disease, status-post ilealplasty chronic abdominal pain, and status post lysis of adhesions major depressive disorder-moderate 3. Her rater had an insufficient number of days supervision to render a report because of her frequent absences from the unit (98 days) during the rating period, due to hospitalization, leave (convalescent, emergency and ordinary), as well as normal weekend and holiday passes. Some of the absences were for more than 30 consecutive days in length. 4. She never received any performance feedback or counseling from her rating chain during the reporting period due to the vagueness of who her actual supervisor was. 5. The EPR was the result of her rating chain reprising against her for filing an Article 138, Uniform Code of Military Justice (UCMJ) action and an Inspector General (IG) complaint against her additional rater and another service member. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving on active duty in the grade of senior master sergeant (SMSgt). On 26 Apr 11, the applicant filed a complaint with the 86th Airlift Wing Inspector General (86 AW/IG) alleging the 693 ISRG/CC removed her from her position as the 693 ISRG Superintendent, as a reprisal for her conversation with the 480 ISR Wing/Command Chief (480 ISRW/CCC) on 29 Mar 11. In accordance with (IAW) 90-301, Inspector General Complaints, the 480 ISRW/IG reviewed the complaint and determined the allegations of reprisal should be dismissed; there was no evidence of abuse of authority, and that further inquiry or investigation under Title 10 United States Code (USC), 1034 was not warranted. The case was formally referred to the AF ISR Agency IG’s office who, in turn, reviewed the case and transferred it to the Secretary of the Air Force (SAF) IG (SAF/IG). The SAF/IG, in turn, reviewed the case and referred it to the Department of Defense (DoD)/IG office. On 4 Jul 11, the applicant submitted a DoD Hotline complaint via email. In this complaint, the applicant alleges that since the submission of the IG complaint in Apr 11, she believes an unauthorized disclosure of that complaint was made to her commander and that adverse personnel actions were taken against her. On 13 Jul 11, the DoD/IG office completed their review of the applicant’s reprisal case and determined that there was no evidence of reprisal/abuse of authority. The DoD/IG stated that an investigation into the allegations of reprisal is not warranted under 10 USC 1034, and the case was closed. On 29 Jul 11, the applicant was notified of the DoD/IG’s decision. On 19 Jan 12, the DoD/IG completed their review of the applicant’s complaint dated 4 Jul 11, and determined that there was no evidence of reprisal by her former commander. The DoD/IG stated that an investigation into the allegations of reprisal were not warranted under 10 USC 1034 and the case was closed. On 19 Mar 12, the applicant was notified of the DoD/IG’s decision. On 14 Sep 12, the AF ISR Agency/IGQ reviewed the applicant’s complaint dated 3 Jan 12 and determined the allegation did not meet the definition of reprisal under 10 USC 1034. In considering the abuse of authority/abuse of power and unfair treatment by the commander, AF ISR/IGQ concluded the commander’s actions were appropriate considering the applicant’s performance and conduct. Further, AF ISR/IGQ noted the allegations of unfair treatment, reprisal/abuse of authority have been reviewed in previous IG complaints, on multiple occasions and at all levels to include SAF/IG and DoD/IG, and each time, the findings have been found not substantiated The applicant filed an appeal through the Evaluation Report Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports. The ERAB considered the applicant’s appeal and was not convinced the report was unjust or inaccurate and denied her request for relief. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibit B and C. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial of the applicant’s request to remove the contested EPR. DPSID states that Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record. Additionally, it is considered to represent the rating chain’s best judgment at the time it is rendered. To effectively challenge an evaluation, it is necessary to hear from all the members of the rating chain, not only for support, but also for clarification/explanation. The applicant has failed to provide any information/support from either the rater or additional rater on the contested evaluation. DPSID determined the report was accomplished in direct accordance with applicable regulations. DPSID contends that once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record. Based upon the lack of corroborating evidence provided by the applicant and the administrative sufficiency pertaining to the IG complaint findings, there is no compelling evidence to show that the report is unjust or inaccurate as written. The complete DPSID evaluation is at Exhibit C. AFPC/DPSOE defers to the recommendation of DPSID regarding the removal of the report and its validity. DPSOE states should the Board void the report as requested; they could direct the applicant be provided supplemental consideration for cycle 11E9. The next senior noncommissioned officer (SNCO) supplemental board is scheduled to convene in Jun 13. Should the applicant become a select, she would incur a three-year active duty service commitment (ADSC) from the date of pin-on. Since the applicant has been approved for retirement effective 1 Feb 13, she would need to petition the Board to waive the ADSC or be returned to active duty. The complete DPSOE evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 23 Oct 12, for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. _________________________________________________________________ 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 an error or injustice to warrant the removal of the contested EPR from her records. We took careful notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of DPSID and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. We do not find her assertions, in and by themselves, sufficiently persuasive in this matter. Additionally, we are not persuaded that the contested report is not a true and accurate assessment of her demonstrated potential during the specified time period or that the comments contained in the report are in error or contrary to the provisions of the governing instruction. Therefore, in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. The applicant alleges she has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC § 1034). We note, the applicant filed several IG complaints; however, SAF/IG, DoD/IG, and AF ISR Agency all reviewed the allegations, and each time, the findings were unsubstantiated, to include alleged reprisal. Nevertheless, in accordance with 10 USC § 1034, we reviewed the evidence of record to reach our own independent determination of whether reprisal occurred. The applicant has not established that she ever made a protected communication and the EPR was rendered in retaliation to making a protected communication. Other than her own assertions, she has provided no evidence that would convince us the EPR was not an accurate description of her performance during the reporting period. Therefore, it is our determination the applicant has not been the victim of reprisal based on the evidence of record in this case. 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. _________________________________________________________________ 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-2012-02987 in Executive Session on 26 Feb 13, under the provisions of AFI 36-2603: Panel Chair Member Member Although was the Panel Chair, in view of his untimely death, has signed as Acting Panel Chair. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 2 Jul 12, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 4 Sep 12. Exhibit D. Letter, AFPC/DPSOE, dated 15 Sep 12. Exhibit E. Letter, SAF/MRBR, dated 23 Oct 12.