RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04268 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: He receives the following relief based on being the victim of reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, dated 23 Jul 07, and Title 10 U.S.C. § 1034: 1. His demotion to the grade of Staff Sergeant (SSgt, E-5) be reversed and removed from his records. 2. His Enlisted Performance Report (EPR) for the period ending 12 Aug 09 be void and removed from his record. 3. His referral EPR for the period ending 29 Jun 10 be void and removed from his record. 4. He be promoted to the grade of Master Sergeant (MSgt, E-7) in the Calendar Year (CY) 2010 promotion cycle. 5. He receives back pay and allowances. APPLICANT CONTENDS THAT: In a 23-page statement, the applicant’s counsel presents the following major contentions: In 2008 he was subject to retribution from his leadership. The retribution began after he raised concerns about inappropriate remarks made by a squadron commander and a senior enlisted individual. There was also safety concerns regarding an aircraft that was experiencing flight control and electrical problems. His leadership withheld his selection as the Squadron Flight Engineer of the Year and issued an unjustified “3” EPR which was later changed to a “5” by his commander. His unit withheld a request for reassignment because he filed an Inspector General (IG) complaint. He was improperly referred for a command directed Mental Health (MH) evaluation and issued a Letter of Reprimand (LOR) for stating he was going to make an IG complaint or an Article 138 complaint. He was demoted to the grade of SSgt for making protected communications which was improper and unjust. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 6 Dec 95, the applicant entered the Regular Air Force. According to an AF Form 910, Enlisted Performance Report (AB thru TSgt), for the period ending 12 Aug 09 his supervisor gave him an overall rating of “3.” However, his commander non- concurred and the EPR was upgraded to a “5.” On 1 Jun 09, he filed an IG complaint with the 18th Wing Inspector General (18th WG/IG), Kadena AB, JA alleging his commander reprised against him for an Equal Opportunity (EO) complaint he filed in Nov 08 by selecting another person as the Flight Engineer Professional of the Year (POY). The applicant alleged his commander attempted to influence personnel to vote for a particular presidential candidate, berated an aircraft commander for not flying an aircraft with a missing tool and placed a crew in jeopardy by having them fly without de-icing systems. In an e-mail dated 8 Jun 09, the applicant wrote to the Secretary of the Air Force Inspector General (SAF/IGE) advising of reprisal by his former commander and that he planned to submit an IG complaint to the Department of Defense (DOD) IG due to the unique situation and the people involved at the 18th WG/IG level (friendship). In the e-mail, he requested whistleblower protection stating that on 13 Apr 09, he was not selected for POY and was reprised and discriminated against for being outspoken and going against the grain of his leadership’s philosophy and operational expectations with regards to morale and safety issues. In a letter dated 8 Jun 09, the 18th WG/IG informed the applicant his reprisal allegation complaint was dismissed IAW AFI 90-301, Inspector General Complaints Resolution, paragraph 5.4. There was protected communication, however, there was no unfavorable or favorable personnel action taken. Both the Pacific Air Forces (PACAF/IGQ) and SAF/IGQ stated the POY award would not be considered withholding a favorable personnel action. The issue of the voting e-mail was dismissed. The Staff Judge Advocate (SJA) reviewed the e-mail and determined it read neutral and did not constitute an attempt to influence or interfere with the outcome of an election. The other two issues dealing with flight safety were determined command issues and were referred to the 18th Operations Group Commander (18th OG/CC). In a memorandum dated 15 Jun 09, the 18th OG/CC informed the applicant the allegations of flight safety during the two sorties were investigated and determined to be unfounded. He noted there may have been instances of unclear communication; however, based on the facts presented he did not believe safety of flight was ever in jeopardy. In an e-mail dated 26 Jun 09, SAF/IGQ informed the applicant that his concerns were already addressed and a thorough review of the complaint yielded no compelling evidence to disagree with the conclusions of the 18th WG/IG. The applicant was advised that absent new and relevant evidence, they had no recourse except to file any future correspondence without action or response. On 14 Sep 09, the applicant filed an IG complaint alleging his unit leadership took reprisal action against him for filing an IG complaint in Jun 09. According to AF Form 1768, Staff Summary Sheet, dated 15 Oct 09, the applicant requested his commander’s recommendation for reassignment to the 99th Airlift Squadron (Presidential Support), Joint Base Andrews NAF, MD. On 9 Dec 09, his commander non-recommended him for reassignment stating “Member not medically qualified.” On 4 Jan 10, he received a LOR for willfully disobeying a commissioned officer by failing to disclose a medical condition in his application for reassignment and extortion by making a statement in front of a witness that he would be submitting an Article 138 complaint against his commander for holding up his assignment application. In his response, he states he did not intend to be disrespectful and understood he could improve his tone. He also stated that he had no intent to extort, threaten or injure anyone and believed an Article 138 complaint was appropriate. In a letter dated 18 Feb 10, the IG DOD Military Reprisal Investigations (MRI) concurred with the declination to investigate the reprisal allegation In Accordance With (IAW) 10 U.S.C. § 1034. In a letter dated 23 Feb 10, PACAF/IGQ informed the applicant that the 18th WG/IG thoroughly investigated his allegation that his superintendent rated him an overall rating of “3” on his Aug 09 EPR in reprisal for making a protected communication on 26 May 09 to the 18th WG/IG in violation 10 U.S.C. § 1034. The 18th WG/IG concluded the responsible management official did not reprise against the applicant or abuse their authority. Further, based on the evidence they concluded there was insufficient justification to conduct an investigation under AFI 90-301 and 10 U.S.C. § 1034. As a result, they recommended the allegations be dismissed. The applicant was advised his case was thoroughly reviewed by the Complaints Resolution Directorate, SAF/IG and final approval determined by the Special Inquiries Directorate, DOD IG/MRI IAW 10 U.S.C. § 1034. On 19 Mar 10, the applicant acknowledged receipt of the proposed demotion action to the grade of SSgt dated 15 Mar 10. He indicated he had consulted legal counsel, would submit written statements in his own behalf and requested a personal hearing. In a letter dated 24 Mar 10, the applicant’s Area Defense Counsel (ADC) requested the pending demotion action to the grade of SSgt not be processed stating the unit had not used the “progressive” approach to discipline. An overview of his entire military record was provided to the demotion authority. In a letter from the 961st Airborne Air Control Squadron Commander (961st AACS/CC) dated 1 Apr 10, the applicant was notified that the demotion authority approved the recommendation that he be demoted to the grade of SSgt. Per Special Order AA- 02 dated 19 Apr 10, the applicant was demoted to the grade of SSgt with a Date of Rank (DOR) and effective date of 31 Mar 10. According to another letter from the 961st AACS/CC dated 13 May 10, he was referred for a MH evaluation. The reasons for the referral was his refusal to fly on an aircraft although it was deemed airworthy, attempting to prove retaliation for not winning an annual award, an emotional outburst on an E- 3 aircraft in which he left his duty position with the engines running, reporting to the 18th WG, 5th Air Force and PACAF safety offices that he thought there was a Top Secret Memorandum For Record (MFR) program to record everything he was saying and that the program could injure him or destroy his career. He also reported to his physician that he was under significant stress. According to his EPR ending 29 Jun 10, he received a referral EPR with an overall rating of “3.” The specific reasons for the referral EPR include his administrative demotion to the grade of SSgt for failure to meet NCO responsibilities and a Letter of Admonishment (LOA) for disrespecting commanding officers during an Article 138 redress. In an e-mail dated 30 Jun 10, the applicant submitted allegations of reprisal to the IG DOD Hotline. He alleged that he received a referral EPR for making protected communication and was demoted to the grade of SSgt in reprisal for submitting an AF Form 457, USAF Safety Hazard Report. In letters to Members of Congress he wrote that he was referred for a mental health evaluation, removed as a Noncommissioned Officer in Charge (NCOIC) and received an unfavorable EPR. In a letter dated 22 Nov 10, the PACAF/IGQ notified the applicant the IG DOD/MRI requested they review the following allegations in violation of 10 U.S.C. § 1034: a. On or about 25 Jan 10, his commander removed him from his position as NCOIC in reprisal for making a protected communication (AF Form 457). b. On or about 15 Mar 10, his commander initiated administrative demotion in reprisal for making a protected communication. c. On 31 Mar 10, he was administratively demoted by his group commander in reprisal for making a protected communication. d. On 13 May 10, his commander referred him for a MH evaluation in reprisal for making a protected communication. e. On 30 Jun 10, he was issued a referral EPR for making a protected communication. f. On 16 Jul 10, his commander upheld the referral EPR in reprisal for making a protected communication. The 18th WG/IG conducted a complaint analysis into the allegations and after a thorough examination of all the facts, concluded the responsible management officials did not reprise against the applicant, or abuse their authority. Further, based on the evidence they concluded there was insufficient justification to conduct an investigation under AFI 90-301 and 10 U.S.C. § 1034. As a result, they recommended the allegations be dismissed. Further, the case was thoroughly reviewed by SAF/IG and IG DOD/MRI IAW 10 U.S.C. § 1034. In an e-mail to the IG DOD dated 1 Dec 10, the applicant requested further review from an IG at any level based on new documentation. He submitted two binders to the IG DOD who delegated the situation back to the 18th WG/IG and never interviewed him face to face. He was bounced around multiple IG’s and requested a local IG reopen his case. Per Special Order ACD-02090 dated 16 May 13, the applicant was placed on the Temporary Disability Retired List (TDRL) in the grade of Technical Sergeant (TSgt, E-6), highest grade satisfactorily held, effective 27 Sep 13 with a 60 percent compensable disability rating. He was credited with 17 years, 9 months and 22 days of active duty service. AIR FORCE EVALUATION: AFPC/DPSOE recommends denial of the applicant’s requests to reverse the demotion action and to promote him to the grade of MSgt for Promotion Cycle 10E7. DPSOE recommends the request for set aside of the demotion be time barred. Due to the passage of time, DPSOE is unable to verify the applicant’s contentions concerning the specifics regarding the demotion action as official documentation (demotion package) is no longer available. DPSOE further recommends the request for promotion to the grade of MSgt be denied as he was ineligible for consideration and/or was never selected prior to his placement on the TDRL in the grade of TSgt. The complete DPSOE evaluation is at Exhibit C. AFPC/DPSID recommends denial of applicant’s requests to remove the contested EPRs ending 12 Aug 09 and 29 Jun 10. The applicant did not file an appeal through the Evaluation Report Appeals Board (ERAB) IAW AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports, due to the applicant’s retirement from active duty. The applicant has not provided substantiating documentation or evidence to prove his assertions that the contested evaluations were rendered unfairly or unjustly, and has merely offered his view of events in the light that is most beneficial to him. 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 members of the rating chain, not only for support but also for clarification. The applicant has failed to provide any information from rating officials on the contested reports. It is determined that the report was accomplished IAW all applicable Air Force policies and procedures. 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. The burden of proof is on the applicant. The applicant has not substantiated that the contested report was not rendered accurately and in good faith by all evaluators based on knowledge available at the time. The complete DPSID evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The advisories which state the application was filed late is incorrect as the application was filed just as he was retiring. As active duty time is excused, the application is timely filed. DPSOE attempts to blame the applicant that his demotion paperwork is no longer in his records. The demotion action should have been retained three years; however, it is clear that the demotion package was lost less than three years of when it was finalized. Therefore, the applicant’s time of filing had no impact on the availability of the demotion package. The loss of the demotion package is indicative of the improper processing and impropriety of the demotion from the beginning. He had an outstanding record prior to making protected complaints. He rightly complained about improper racial comments about the President by senior members of his squadron and about the safety of an aircraft that was impounded a week later. After these complaints, his supervisory chain issued him negative paperwork for issues that occurred long ago. These actions did not warrant even counseling at the time they occurred, but somehow they became serious enough after the complaints. The only purpose for the demotion action was to punish the applicant for making protected statements. DPSID acknowledges the applicant made protected statements and also acknowledged he received adverse actions but then states there is no connection. They also state that his supervisors and raters were within regulatory guidance in taking their actions. The facts are clear the applicant made protected statements, his duty performance did not change in anyway, but how he was treated by his supervisory chain did change for the worse. The negative comments on his performance reports and adverse actions constitute reprisal and are improper. The only reason he was ineligible for promotion was the improper reprisal and retaliation taken against him. He tested for promotion to the grade of MSgt and easily should have made the cut off for promotion. If his commander had not improperly demoted him, he would have been promoted in due course. The Secretary of the Air Force obviously believed the demotion was improper as he was retired in the grade of TSgt. Because of the reprisal actions by his chain of command, the applicant developed Post-traumatic Stress Disorder (PTSD). He has now been medically retired. The only way to make him whole is to overturn the demotion action, remove the adverse EPRs and promote him as appropriate. The applicant’s complete submission is at Exhibit F. 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 reversing his demotion to the grade of SSgt, promoting him to the grade of MSgt with back pay or removing the contested EPRs from his record. We note the applicant alleges that he has been the victim of reprisal and discrimination and has not been afforded full protection under the Whistleblower Protection Act (10 U.S.C. § 1034). However, the evidence reflects the applicant’s IG complaints and allegations of reprisal were thoroughly investigated by the 18th WG, PACAF and DOD IG/MRI offices and it was concluded there was no evidence of reprisal. Moreover, based upon our own independent review of the available evidence, the applicant has not established that the administrative actions taken by his superiors were an act of reprisal or arbitrary and capricious. While counsel’s arguments are duly noted, he has not provided substantial evidence which, in our opinion, successfully refutes the assessment of the case by the Air Force Offices of Primary Responsibility (OPR). Therefore, aside from DPSOE’s recommendation to time bar the applicant’s requests, we agree with the opinions and recommendations of the Air Force OPR’s and adopt the rationale expressed as the basis for our conclusion that the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting any of the relief sought in this application. 5. 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. 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-2013-04268 in Executive Session on 20 Nov 2014 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-04268 was considered: Exhibit A. DD Form 149, dated 21 Aug 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOE, dated 15 Nov 13. Exhibit D. Memorandum, AFPC/DPSID, dated 8 Aug 14. Exhibit E. Letter, SAF/MRBR, dated 12 Sep 14. Exhibit F. Letter, Applicant’s Counsel, dated 7 Oct 14.