RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05071 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The Article 15 she received on 21 Mar 11 be set aside and she be restored to the grade of technical sergeant (E-6) and she receive supplemental promotion consideration for the grade of master sergeant (E-7). 2. Her Enlisted Performance Report (EPR), rendered for the period of 10 Feb 11 through 30 Jun 11, be declared void and removed from her military personnel record or two lines be removed from the EPR and replaced with two different lines from her current rater. 3. The Letter of Counseling (LOC), dated 7 Sep 10; LOC, dated 18 Feb 11; Letter of Reprimand (LOR), dated 28 Mar 11; LOC, dated 28 Mar 11; and LOC, dated 15 Jun 11 be removed from her official military personnel records. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. The alleged false official statement for which she received her Article 15 was not made with the intent to deceive; it was made from her recollection of the events 24 days after the incident in question. 2. The Article 15 was too harsh as it did not represent progressive discipline; the 18 Feb 11 Letter of Reprimand (LOR) she received that preceded it was declared void and removed from her records as the Inspector General’s (IG) Office found that it constituted reprisal. 3. The 7 Sep 10, 18 Feb 11, and 28 Mar 11 LOCs and 28 Mar 11 LOR were all influenced by the perpetrator of the substantiated reprisal and should therefore also be declared void and removed from her record. 4. The 15 Jun 11 LOC for inattention to detail in the performance of her duties was a result of the additional scrutiny she was subjected to in the wake of the reprisal and numerous other adverse actions against her. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 12 Apr 94. On 7 Sep 10, the applicant received an LOC for making a false official statement to her Flight Commander about who reported the applicant for having an unprofessional relationship. On 18 Feb 11, the applicant received an LOC for dereliction of duty by failing to provide fitness slides on time. On 24 Feb 11, she submitted a rebuttal wherein she contended the LOC was as an act of reprisal and her supervisor is guilty of unfair application of his own standards and those of the USAF. On 18 Feb 11, the applicant received an LOR for being late for work on 16 Feb 11. On 24 Feb 11, the applicant submitted a rebuttal to the LOR wherein she contended she was on time for work because she remembered walking in the microbiology door just as reveille began. The 18 Feb 11 LOR was later determined to be an act of reprisal by the IG and removed from the applicant’s records. On 8 Mar 11, the applicant’s commander notified her of her intent to impose non-judicial punishment (NJP) under Article 15, for making a false official statement, in violation of Article 107, Uniform Code of Military Justice (UCMJ). The reason for the action was her rebuttal response to the 18 Feb 11 LOR indicated that on 31 Jan 11, she claimed that she was late for duty because she was delayed by a member asking a question about Medical Readiness, in which this statement was false. Her punishment consisted of reduction to the grade of Staff Sergeant and a reprimand. On 14 Mar 11, the applicant acknowledged receipt of the Article 15 punishment and, on 18 Mar 11, elected to appeal the punishment and submit statements on her behalf. On 21 Mar 11, the applicant’s commander denied her appeal and, on 23 Mar 11, the appellate authority denied the appeal. On 24 Mar 11, the Article 15 was reviewed and determined to be legally sufficient. On 28 Mar 11, the applicant received an LOR from her commander for failure to obey a lawful order given to her by her supervisor to provide training dates, update rank, and sign off pending tasks in the Air Force Training Record (AFTR). On 30 Mar 11, she submitted a response to the LOR wherein she acknowledged her delinquency in responding after the stated deadline. On 28 Mar 11, the applicant received an LOC from her commander for engaging in conduct with a commissioned officer that created the improper appearance of an unprofessional relationship. On 30 Mar 11, she submitted a response to the LOC wherein she contended that the football game in which she attended with the commissioned officer was a group event that included both military and civilian personnel and family members. She also contended that on the days she received a ride to work from the commissioned officer, she did not have her vehicle so she asked him for a ride to work. On 4 Apr 11, the applicant filed an AF Form 102, Inspector General Personal and Fraud, Waste, and Abuse Complaint Registration, alleging reprisal within her department. On 15 Jun 11, the applicant received an LOC for inattention to detail in the performance of her duties. On 15 Jun 11, she submitted a response wherein she acknowledged her inattention to detail; however, she indicated that other technicians were making similar errors, but not being subjected to adverse administrative actions. On 22 Jul 11, the contested EPR was referred to the applicant for comments related to her failing to maintain standards, reduction in rank due to making a false official statement, and demonstrated lack of integrity. On 29 Jul 11, the applicant submitted a rebuttal to the referral EPR. The following is a resume of the applicant’s EPR ratings: RATING PERIOD PROMOTION RECOMMENDATION 30 Jul 12 3 * 30 Jun 11 (SSgt) 3 (referral) 9 Feb 11 4 29 Jun 10 5 29 Jun 09 5 18 Jan 09 5 18 Jan 08 (TSgt) 5 18 Jan 07 4 18 Jan 06 5 18 Jan 05 4 18 Jan 04 5 18 Jan 03 5 18 Jan 02 4 18 Jan 01 (SSgt) 5 * Contested Report On 21 Mar 12, DOD/IG notified SAF/IGQ that they agree that applicant for making a protected communication. On 3 Apr 12, AFGSC/IG provided the applicant with a final response to her complaint filed with the 90 MW/IG. The final amended findings for the allegations are as follows: Allegation 1. That on or about 18 Feb 11, MSgt B--- reprised against the applicant in violation of 10 USC 1034 when he issued her an LOR in retaliation for making a protected communication. FINDING: SUBSTANTIATED Allegation 2. That on or about 18 Feb 11, TSgt G--- reprised against the applicant when he influenced MSgt B--- to issue her an LOR because he believed the applicant made a protected communication. FINDING: NOT SUBSTANTIATED Allegation 3. That on or about 2 Mar 11, MSgt B--- reprised against the applicant when he influenced Lt Col P--- to issue her an Article 15 because he believed that she made a protected communication. FINDING (As amended by AFGSC/IG): NOT SUBSTANTIATED The applicant’s commander removed the 18 Feb 11 LOR from the applicant’s military personnel records as a result of the substantiated finding of reprisal in the AFGSC/IG Report. 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 Exhibits C, D, and E. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to set aside the contested Article 15, indicating she has not shown a clear error or injustice. The applicant fails to make a compelling argument the Board should overturn the commander’s original NJP decision on the basis of injustice. Except for her contention that her alleged false official statement was not intentional and the LOR she received was removed due to her substantiated reprisal claim, the applicant offers no evidence in her submission that she did not, in fact, make a false official statement with which she was charged. She simply offers the proposition that the statement was not intentional and she believes the Article 15 is not warranted due to the substantiated reprisal claim. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSIM recommends denial of the applicant’s request to remove the NJP from her military records, indicating the applicant has not indicated a clear error or injustice. The commander followed the appropriate procedures and guidance in administering the NJP. The applicant exercised her right to appeal the commander’s decision; however, her appeal was denied and punishment was imposed. A complete copy of the AFPC/DPSIM evaluation is at Exhibit D. AFPC/DPSID recommends denial of the applicant’s request to remove and/or amend the contested EPR from her military record, indicating the lack of corroborating evidence provided by the applicant and the presumed legal sufficiency of the Article 15 action does not warrant any corrective action. She has not provided compelling evidence to show that the report was unjust or inaccurate as written. The applicant contends that the administrative actions administered to her during this reporting period were issued with underlying malicious intent due to interpersonal relationships, unfair application of standards, and substantiated acts of reprisal and argues that these actions are undermined by the partial substantiated claim by the IG Office. However, it is noted that the party in which was a subject in the applicant’s complaint, was not a signatory/ evaluator of this contested evaluation report. Furthermore, even though two lower level IG offices substantiated the applicant’s claim that the subject influenced her commander (the additional rater and commander of the contested report) to issue the applicant an Article 15 in reprisal, said finding was not substantiated by the highest level IG office and the finding in this regard was amended to reflect that it was not substantiated. Additionally, there is no evidence that suggests the rater of this report may have also been negatively influenced into giving an unfair or impartial rating during the assessment of the report. The applicant’s rating chain appropriately chose to document the incidents on the contested report, which caused the report to be a referral. In addition, the applicant requests to remove or amend two disparaging lines from the contested report and have two new lines inserted by her current rater. In accordance with AFI 36- 2401, paragraph A1.5.22, “If you are requesting a report be reaccomplished, you must furnish a substitute report in your appeal case. The substitute report must be signed by the evaluators who signed the original report.” However, inconsistency in ratings does not make it erroneous or unjust. A report evaluates performance, conduct, and potential in that position for a specific period. Finally, AFLOA/JAJM has rendered an opinion that the Article 15 was legally sufficient and based on that, the contested report was appropriate to the circumstances and there is no basis to support its removal. A complete copy of the AFPC/DPSID evaluation is at Exhibit E. AFPC/DPSOE indicates that in view of the fact AFLOA/JAJM found no error or injustice requiring correction or set aside of the Article 15 and AFPC/DPSID determined the EPR is accurate as written; they defer to both their recommendations and find that supplemental promotion consideration should not be awarded. A complete copy of the AFPC/DPSOE evaluation is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She argues that her IG investigation is separated into three allegations, each requiring its own individual analysis: Allegation 1 being the reprisal of the LOR being issued by MSgt B---; Allegation 2 being the reprisal of the Article 15 being issued by the commander; and Allegation 3 being the reprisal of MSgt B---influencing the commander to issue the Article 15. She reiterates that she was treated differently from her other co- workers by MSgt B--- and that he was “piling on the paperwork” through administrative actions along with diminishing her character to the commander that eventually led to her receiving an Article 15. She feels like MSgt B---, by virtue of his position as the superintendent, was a participant during the decision making process of the Article 15. She stresses that the 90 MW/IG and AFGSC/IG substantiated portions of her complaint and, in the end, a Command Directed Investigation (CDI) was initiated. MSgt B--- was reduced to TSgt and forced to retire. TSgt G--- was reduced to SSgt and denied re-enlistment. The final IG Investigation report substantiated the reprisal complaints. A complete copy of the applicant’s response is at Exhibit H. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant contends that the inspector general’s finding that she was reprised against when issued a LOR on 18 Feb 11 from her supervisor is proof of a hostile environment and should form the basis of a determination that the remaining contested actions are unfair/unjust; however, we are not convinced the existing record should be disturbed. In this respect, we note that the IG fully investigated the applicant’s several contentions in this regard and found that even though the noted LOR was an act of reprisal and was removed from her records, the remaining administrative and punitive actions were found to be appropriate to the circumstances. Based on our own independent review, we find no basis to conclude that these other contested actions constitute and error or injustice under 10 USC 1552, or reprisal in violation of 10 USC 1034. In this respect, we note that while the applicant contends these other actions resulted from the reprisal motive, she has not presented any additional evidence that was not reasonably available and considered by the IG that would serve to impugn their methods or findings. Therefore, absent direct evidence that the contested actions represented an abuse of discretionary authority or disproportionate to the circumstances, or the applicant was denied rights to which she was entitled, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2012-05071 in Executive Session on 30 Jul 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 22 Oct 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 21 Nov 12. Exhibit D. Letter, AFPC/DPSIM, dated 12 Jan 13. Exhibit E. Letter, AFPC/DPSID, dated 10 Feb 13. Exhibit F. Letter, AFPC/DPSOE, dated 6 Mar 13. Exhibit G. Letter, SAF/MRBR, dated 25 Mar 13. Exhibit H. Letter, Applicant, dated 22 Apr 13, w/atchs. Panel Chair 7