RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03153 . COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His military record be corrected as follows: 1. His Letter of Admonishment (LOA), dated 10 March 2010, be removed. 2. His Letter of Reprimand (LOR), dated 23 March 2010 be removed. 3. Any documents pertaining to a proposed revocation of a security clearance or access to classified material be removed. 4. His Unfavorable Information File (UIF) be removed. 5. Adverse documents in his Officer Selection Record (OSR) from August 2003 through 15 October 2010 be removed. 6. His Officer Performance Report (OPR) for the period of 4 August 2009 through 3 August 2010 be voided and replaced with a new OPR indicating “Meets Standards.” 7. His Inactive Duty Training (IDT) points withheld for time spent working with the Area Defense Counsel (ADC) be reinstated. 8. He be awarded the First Oak Leaf Cluster (1OLC) for the Meritorious Service Medal (MSM) for the period of 4 August 2006 through 3 August 2009. 9. Any documentation concerning adverse action taken, or proposed, by the U.S. Air Force Academy (USAFA) be removed. 10. He be reinstated as an active member of the Air Force Reserve, effective 15 October 2010, with award of IDT points consistent with the average IDT points he earned between 1 March 2008 and 31 March 2010. ________________________________________________________________ APPLICANT CONTENDS THAT: In a 25-page brief the applicant, through counsel, makes the following contentions: 1. He enjoyed a very successful military career until two years prior to his forced premature retirement in October 2010. In 2008 his USAFA Admission Liaison Officer (ALO) program supervisors began questioning his military duty point submissions. They initiated two formal investigations, one based upon an Inspector General (IG) complaint and the other through a Command Directed Investigation (CDI). a. In October 2008, an IG complaint was filed which accused him of having submitted a fraudulent AF IMT 40A, Record of Individual Inactive Duty Training. The complaint alleged that he filed inaccurate and false claims for IDT points. The complaint originated with Major A, the Liaison Officer Director (LOD) who supervised the ALOs. Major A was passed over by the same board that selected him for promotion to Lieutenant Colonel in July 2008 but remained his designated supervisor despite the rank inversion this structure created. The IG determined that the complaint against him was not substantiated. b. In June 2009, a CDI was ordered by the USAFA Superintendent, due to a troubling command climate. In the course of the CDI the issue of the fraudulent AF IMT 40A was again brought up. The investigating officer commented that the submission was reviewed multiple times by unit personnel, unit supervision and independent sources. All sources except for his immediate supervisor found little to no cause to unambiguously believe that he had falsified his AF IMT 40A. The investigating officer stated that the preponderance of available evidence reflected there was no intent to defraud the government when he submitted his AF IMT 40A. The investigation was completed and no disciplinary actions were taken. 2. Although twice exonerated, his supervisors continued to investigate fraudulent military duty submissions. Except for a few submissions relating to time spent with his military counsel, none of his duty point submissions were disapproved. 3. Simultaneously, USAFA officials were actively engaged with his civilian employer, American Airlines (AA), in a collaborative attempt to justify termination of his AA employment for alleged abuse of military leave. Although AA cited 43 instances of inappropriate conduct, an arbitrator found no abuse of military leave and only one contractual transgression and ordered his reinstatement with restoration of benefits, seniority, and back pay for all but 20 days. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: 1. According to copies of documents extracted from the Automated Records Management System (ARMS) the applicant is a former commissioned officer of the Air Force Reserves. He was progressively promoted to the grade of Lieutenant Colonel, (O- 5), with an effective date of rank and pay grade of 25 July 2008. Effective 15 October 2010, the applicant was, voluntarily, assigned to the Retired Reserve section awaiting pay at age 60 (23 June 2021). 2. Regarding removal of his OPR for the period of 3 August 2009 through 2 August 2010; the applicant did not file an appeal through the Evaluation Report Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports, due to the fact that he is in retired status and is not authorized to file an appeal through the ERAB. a. The following is a resume of his last five OPR ratings commencing with the report closing on 2 August 2006. PERIOD ENDING OVERALL EVALUATION 2 Aug 2006 Meets Standards (MS) 2 Aug 2007 MS 2 Aug 2008 MS 2 Aug 2009 MS 2 Aug 2010* Does Not Meet Standards * contested report. 3. On 30 December 2009, the applicant filed an IG complaint via AF IMT 102, Inspector General Personal and Fraud, Waste and Abuse Complaint Registration (Exhibit C), with the Department of Defense IG (DoD/IG) and presented six allegations against his squadron of assignment. DoD/IG forwarded the complaint to the Secretary of the Air Force IG (SAF/IG), who in turn, forwarded the complaint to the USAFA/IG. By letter dated 10 February 2010, the USAFA/IG provided the applicant the following analysis of the allegations and subsequent findings: a. USAFA/RR denied his AF IMT 40A points for time spent in defense, in violation of military policy and fair access to defense services. Finding: Not Substantiated. Rationale: AFI 36-2017, Admissions Liaison Officer Program, dated 27 Feb 95, Table Al.l., Activities Authorized for Point Credit, lists 19 items that are authorized activities for ALOs to receive points. Trips to ADC or IG are not listed as an authorized activity under this table. Furthermore, neither AFI 36-2017 nor AFMAN 36-8001 (22 Jan 04) Reserve Personnel Participation and Training Procedures, mandate that a reservist must be awarded points for visits to their ADC or IG. b. USAFA/RR made pen and ink changes to his September and October 2009 40As and filed them without his signature in violation of Air Force Records Management and established legal principles. Finding: Not Substantiated. Rationale: Their understanding is that the applicant initially signed his 40A for this timeframe and then withdrew his signature through his ADC after the pen and ink changes. Certifying officials and LODs are obligated to validate trips claimed by an ALO. The items which were lined out on the 40A were not identified as being authorized to award points under the guidance of Table Al.l., of AFI 36-2017. Furthermore, the burden falls on the ALO to provide justification to command of the trips claimed. c. USAFA/RR LODs chose to take arbitrary action (or inaction) based on personal bias and unfounded allegations in violation of the standards of good order and discipline and appropriate supervisory roles. Finding: Not Substantiated. Rationale: After reviewing the information submitted, they could not discern any preponderance of evidence that would indicate arbitrary action or personal bias. The leadership consistently questions other ALOs regarding Form 40As when issues of concern come to their attention. This practice is not remarkable to the validation process. d. The USAFA/RR chain of command structure is fatally flawed and inappropriately denied his Article 138 complaint in violation of Article 138, UCMJ and AFI 51-904, Complaints Of Wrongs Under Article 138, Uniform Code Of Military Justice (UCMJ). Finding: Not Substantiated. Rationale: The USAFA- level chain of command is just like any other MAJCOM. USAFA has a squadron section commander who is on "G-series" orders. The squadron section commander is placed on "G-series" orders so that they can administer UCMJ actions on behalf of the Directors and other commanders, who are not on "G-series" orders, where appropriate. Regarding the Article 138 issue, this matter has already been addressed. The applicant provided a 29 October 2007, e-mail from HQ USAF/JAA which supported that USAFA/CC took proper actions considering the Article 138. e. USAFA/RR is disseminating personal information on multiple Air Force personnel and prospective cadets in violation of the Privacy Act. Finding: Not Substantiated. Rationale: The applicant has already filed a complaint on this issue with the USAFA Privacy Act Manager, the proper channel for this complaint. f. USAFA/RR requested his civilian employer flight schedule and contact information without a legal basis in violation of the Privacy Act and without appropriate military authority. Finding: Not Substantiated. Rationale: Command attempted to obtain information about the applicant for official purposes. This does not violate the Privacy Act because they did not release any personal information. USAFA/IG advised the applicant that if he had any questions regarding the matter he could contact the USAFA Chief of Complaints. 4. On 15 January 2010, the applicant provided a copy of his IG complaint to the offices of his State Representative and Senator. On 29 March 2010, SAF/LL requested assistance in answering the congressional inquiries. A copy of the 10 February 2010, closure letter to the applicant was sent to SAF/LL in response to the congressional inquiries. 5. On 30 August 2010, the applicant contacted AFRC/IG alleging reprisal for making a protected communication (PC) to USAFA/IG and claimed the following actions were taken against him as a result of the PC: 1) he received a Letter of Admonishment (LOA) and Letter of Reprimand (LOR), 2) USAFA/RR provided information to his civilian employer, 3) creation of an Unfavorable Information File (UIF) and placement of LOR into his Officer Selection Record (OSR), 4) referral Officer Performance Record (OPR), 5) suspension of security clearance and creation of a Security Information File (SIF), 6) suspended pay and points status, and 7) his request for transfer to another unit was not approved. AFRC/IG transferred the applicant’s complaint to SAF/IGQ who then transferred the complaint to USAFA/IG on 8 September 2010. 6. USAFA/IG reviewed the allegations and, based upon a thorough analysis of the documentation, determined an investigation into the allegations of reprisal under Title 10 U.S.C. §1034 was not warranted. Each allegation was assessed for abuse of authority and found to be not substantiated. The preponderance of the evidence established that the personnel actions against the applicant would have been taken even if the protected communications had not been made. The evidence supported that the actions taken by the applicant’s leadership were reasonable and that any other supervisor/commander would have taken similar actions based on the applicant’s history of failing, and sometimes outright refusal, to comply with requests for additional details to validate his Form 40As from his supervisor and the ALO Program Director. USAFA/JA established the actions taken by USAFA leadership were appropriate consequences for the applicant’s refusal to provide requested information to his supervisors and for using his ALO duties to manage his civilian employment. ________________________________________________________________ AIR FORCE EVALUATIONS: USAFA/RR recommends denial. USAFA/RR states on multiple occasions the applicant willfully disobeyed direct orders and policies, which brought his judgment and ability to adhere to the standards expected of a United States Air Force officer into question. Furthermore, the applicant’s actions were detrimental to the good order and discipline of the Admissions Liaison Officer program. The complete USAFA/RR evaluation is at Exhibit D. RMG/CC recommends denial. RMG/CC states that the items in which the applicant is seeking relief are either not applicable to the Readiness Management Group (not in the applicant’s military file) and/or are unit connected and therefore must be addressed by USAFA, the applicant’s unit of assignment. Upon review of obtainable documentation related to the matter, they estimate that the measures and actions carried out by the applicant’s active duty chain of command were thoroughly vetted, legal and binding. The complete RMG/CC evaluation is at Exhibit E. AFRC/JA recommends denial. AFRC/JA states the applicant argues that he was treated unjustly when he was given an LOA and LOR. USAFA/RR argues that the adverse actions taken before the applicant’s voluntary retirement were justifiable. HQ AFRC does not have access to the referenced CDI nor any of the purported IG investigations. USAFA has the required background information and supporting documentation to opine on this application. While AFRC retained shared administrative control (ADCON), USAFA exercised primary ADCON in these actions. However, judging by a preponderance of the evidence available, they believe the applicant has not proven any error or injustice. The complete AFRC/JA evaluation is at Exhibit F. AFRC/A1K recommends denial. A1K states their position supports that of the AFRC/JA and RMG/CC without further input. The complete AFRC/A1K evaluation is at Exhibit G. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a five-page response the applicant and counsel state that the applicant’s dispute is primarily with the U.S. Air Force Academy not with the Air Force Reserve Command (AFRC). They counter the advisory opinions point-by-point and indicate that they consider the AFRC comments to be conclusory in nature with no supporting documentation and as such, the advisory opinions should be given little weight. They concluded that there is nothing that justifies the actions of the USAFA officials in this case and further state that the USAFA attack upon the applicant through his civilian employment was vindictive, malicious, and completely beyond the scope of their supervisory authority. USAFA actions must be set aside and the applicant should be allowed to resume his military career. The applicant’s complete response, with attachments, is at Exhibit I. ________________________________________________________________ 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 regarding the applicant’s request for award of the First Oak Leaf Cluster (1st OLC) for the Meritorious Service Medal (MSM) with inclusive dates of 4 August 2006 through 3 August 2009. We took careful notice of the applicant's complete submission in judging the merits of the case; however, the applicant has not provided any documentary evidence to substantiate his claim that he was recommended or that he meets the criteria for the MSM. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this portion of the application. 4. Notwithstanding our determination above, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice with respect to the remainder of the applicant’s requests. The applicant alleges that he has been a victim of reprisal for making a protected communication (PC) and has not been afforded full protection under the Whistleblower Protection Act (Title 10 U.S.C. § 1034). Based on this, he is requesting corrective actions as noted in his appeal to the Board. After carefully considering the totality of the evidence before us, we are persuaded that relief is warranted. In this respect, we believe the evidence provided makes it clear that a serious personality conflict existed between the applicant and certain members of his chain of command as validated by Inspector General (IG) complaints filed by his supervisory chain and the applicant himself, as well as the Commander Directed Investigation (CDI) ordered by the USAFA Superintendent due to a troubling command climate. We note the IG complaint, filed by the applicant’s supervisory chain in December 2008 alleged he submitted a fraudulent AF IMT 40A, Record of Individual Inactive Duty Training, which contained inaccurate and false claims for IDT points; however, the IG determined the complaint was not substantiated. In spite of the documented failure to substantiate the allegation, the issue of the fraudulent AF IMT 40A was once again raised in the June 2009 CDI. Of note is the investigating officer’s comment that the submission was reviewed multiple times by unit personnel, unit supervision and independent sources and all sources except for the applicant’s immediate supervisor found little to no cause to unambiguously believe that he had falsified his AF IMT 40A, further providing evidence of the tenuous relationship between the applicant and his immediate supervisor. The investigation was completed with the preponderance of available evidence reflecting there was no intent to defraud the government on the part of the applicant. Also noted is the USAFA/IG determination that an investigation into the complaint alleging reprisal under Title 10 U.S.C. § 1034, was not warranted. Nonetheless, we are persuaded that a preponderance of the evidence submitted supports the applicant was improperly disadvantaged by his supervisory chain given the level of administrative and disciplinary actions taken against him to include; removal from his position as Deputy, Admissions Liaison Officer (ALO); suspended access to the ALO website, corroborations with his civilian employer resulting in his termination from civilian employment; initiation of a UIF; processing for involuntary separation with resultant suspension of access to classified information and prohibited participation in activities for pay or retirement points; and denial of the opportunity to transfer to another assignment. We believe the applicant has provided significant and sufficient evidence that we call into question the basis for the numerous administrative actions taken against him after he made the December 2009 protected communication in the form of an IG complaint. The not substantiated finding of the supervisory chain’s December 2008 IG complaint and the CDI evidence reflecting there was no intent to defraud the government on the part of the applicant, establish there was no basis for the adverse actions taken against the applicant. In view of the above, we are persuaded that the adverse actions taken against the applicant as a result of the alleged submission of a fraudulent AF IMT 40A, are factually baseless and should be removed from his records. 5. With regard to the applicant’s request to remove his referral report; we note that concurrently the issuance of the LOA, LOR, UIF and subsequent referral report relied on the allegations that he took advantage of his military position to the detriment of his civilian employer, submitted a fraudulent AF IMT 40A, Record of Individual Inactive Duty Training, which contained inaccurate and false claims for IDT points and refused to provide requested information of his physical whereabouts on non-duty days. We note the first assertion was invalidated by an independent arbitrator with an outcome of the applicant being reinstated to full duty with his civilian employer with a concurrent promotion, in addition, as noted above, the IG complaint and CDI allegations of fraudulent claims for IDT points were found to be not substantiated. Based on the fact that there was no validated evidence of misconduct on the part of the applicant, we are persuaded that the contested report is not an accurate assessment of the applicant’s performance during the period in question and the aforementioned personality conflicts may have hindered the rating chain’s abilities to objectively assess the applicant's performance. In view of the foregoing, we recommend the contested report be declared void, removed from his military record, and replaced with a new report indicating “meets standards.” 6. The Board notes the RMG/CC states the LOA, LOR, and UIF are not in the applicant’s military record. Notwithstanding, we recommend any documents with reference to these administrative actions be removed from his military record. Additionally, we recommend any adverse documents associated with his OSR, the intent to withdraw his security clearance, or any other adverse action taken or proposed by the USAFA be removed from his military record. 7. The applicant requests that his inactive duty training points withheld for time spent working with his area defense counsel (ADC) for the period of February through October 2009 be reinstated. The OPRs’ recommendations of denial are duly noted, however, we have been advised there is nothing in law or policy to prohibit a commander from authorizing the use of IDT points for such consultation. Moreover, we note that Air Force Legal Operations Agency (AFLOA) policy authorizes ADC services for reservists whether or not they are on active duty. We see no clear rationale for the supervisory chain’s decision to withhold these points; therefore, we recommend his record be corrected to show that he was awarded the additional inactive duty training points for training for the period of February through October 2009. 8. We further note that reinstatement as an active member of the Air Force Reserve is among the applicant’s requests. The OPRs recommendations are noted; however, after reviewing all of the evidence provided, we are persuaded that at the time of his “voluntary” retirement the applicant’s circumstances in the loss of his civilian employment and prevention from transferring to another assignment left little choice but to request an early retirement in lieu of his involuntary separation from service. We believe continuance as an active member of the Air Force Reserve is fitting relief given the circumstances. Therefore, based on the above, we believe the corrections cited below will provide the applicant proper and just relief and as such recommend his records be corrected as indicated. 9. The applicant alleges he has been the victim of reprisal. As noted, the applicant’s allegation of reprisal was investigated by the USAFA/IG and found to be not substantiated. We note the applicant’s contention that after he filed an IG complaint alleging reprisal for making a protected communication (PC) to USAFA/IG, numerous administrative actions were taken against him as mentioned above. As such, based on the authority granted to this board pursuant to Title 10 U.S.C. § 1034, we reviewed the complete evidence of record to determine whether we conclude the applicant has been the victim of reprisal. Based upon our own independent review, we have determined the applicant has established he was subjected to reprisal in violation of Title 10 U.S.C. § 1034. The evidence provided supports the allegation of adverse personnel actions taken against the applicant. The applicant was twice subjected to two formal investigations, one based upon an Inspector General complaint and the other through a Command Directed Investigation. Although twice exonerated, his supervisory chain continued to investigate fraudulent military duty submissions. Shortly thereafter he made the protected communication, as documented in his 30 December 2009, IG complaint presenting six allegations against his squadron of assignment. The allegations were found to be not substantiated, however, disciplinary and administrative actions occurred after the PC and continued until the applicant applied for a voluntary retirement in lieu of further actions. In view of the totality of the circumstances in this case, we believe our recommendations for correction constitute full and fitting relief. 10. 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 RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. The Letter of Admonishment (LOA), dated 10 March 2010, be declared void and removed from his records. b. The Letter of Reprimand (LOR), dated 23 March 2010, be declared void and removed from his records. c. The documents pertaining to a proposed revocation of a security clearance and access to classified material be declared void and removed from his records. d. The Unfavorable Information File (UIF) be declared void and removed from his records. e. The adverse action documents in his Officer Selection Record (OSR) from August 2003 through 15 October 2010, be declared void and removed from his records. f. His Officer Performance Report (OPR) for the period of 4 August 2009 through 3 August 2010, be declared void and replaced with a new OPR indicating “Meets Standards.” g. He was awarded an additional 36 non-paid Inactive Duty Training (IDT) points for retention/retirement year 04 August 2008 through 03 August 2009. h. Any documentation concerning adverse action taken, or proposed, by the U.S. Air Force Academy (USAFA), be declared void and removed from his record. i. On 15 October 2010, he was not released from active Reserve status but, on that date, he was continued in active Reserve status and was ordered Permanent Change of Station (PCS) to his home of selection. j. He was awarded 119 paid IDT points for retention/retirement year 4 August 2010 to 3 August 2011, for a satisfactory year of service. k. He was awarded 119 paid IDT points for retention/retirement year 4 August 2011 to 3 August 2012, for a satisfactory year of service. l. He was awarded 119 paid IDT points for retention/retirement year 4 August 2012 to 3 August 2013, for a satisfactory year of service. m. He be reassigned to an Air Force Reserve Category E participation program position within 120 days of this directive. n. His corrected record be considered for promotion to the grade of colonel (0-6) by a Special Selection Board (SSB) for the Calendar Year (CY) 2012 (V0612A) Colonel Central Selection Board. o. It is further directed that any nonselections for promotion to the grade of colonel prior to receiving at least four Officer Performance Reports with at least 250 days supervision, in the grade of lieutenant colonel, be, and hereby are, set aside. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 25 April 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR Docket Number BC-2012-03153: Exhibit A. DD Form 149, dated 27 June 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Report of Investigation - WITHDRAWN. Exhibit D. Letter, USAFA/RR, dated 30 November 2012. Exhibit E. Letter, RMG/CC, dated 30 November 2012. Exhibit F. Letter, AFRC/JA, dated 10 December 2012 Exhibit G. Letter, AFRC/A1K, dated 17 December 2012. Exhibit H. Letter, SAF/MRBR, dated 7 February 2013. Exhibit I. Letter, Counsel, dated 23 January 2013, w/atchs.