ADDENDUM TO 
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-01223

   						COUNSEL:  

						HEARING DESIRED:  YES

APPLICANT REQUESTS:

The letter of reprimand (LOR) he received on 16 Jul 10 be declared void and removed from his record. 

RESUME OF CASE: 

On 18 Apr 13, the Board considered and granted relief to a Colonel (Col C) who contended she was the victim of reprisal due to the actions of the applicant of this case.  Col C contended the Secretary of the Air Force Inspector General (SAF/IG) substantiated her allegation the applicant in this case reprised against her by not selecting her for the position of Director, Reserve Active Guard/Reserve (AGR) Management Office (REAMO), in violation of the provision of Title 10, United States Code (USC) § 1034, Military Whistleblower Protection Act.  Based upon the SAF/IG’s affirmative finding of reprisal, the Board determined Col C was not fairly considered for the REAMO position due to the personal prejudices of the responsible management official (RMO) against her; and, while the Board could not definitively conclude Col C would have been selected for the position but for the reprisal, due to the fact she had subsequently retired, the Board corrected her record to reflect she served on active duty for the additional three years she would have served had she been selected for the REAMO position.  

On 2 Mar 15, the Board considered the applicant’s original request to set aside the finding of reprisal against him from the Secretary of the Air Force Inspector General (SAF/IG) Report of Investigation (ROI), and to set aside the applicants’ LOR issued incident to the ROI.  The Board voted unanimously to set aside the applicant’s LOR, however, they recommended denial of the request to set aside the finding of reprisal against him from the SAF/IG ROI.  The applicant contended the Investigating Officer (IO) from the SAF/IG failed to interview a critical witness, the commander (the now retired Lt Gen B) responsible for hiring the individual for the Active Guard Reserve (AGR) vacancy in this matter, as part of the investigation into the alleged reprisal, despite his request for them to do so.  Further, the IO made erroneous “findings of fact,” which were relied upon to substantiate the applicant committed reprisal; the IO wrongfully used the fact he did not conduct an interview when hiring for the AGR vacancy in question, when he had conducted interviews for three positions during his tenure as Numbered Air Force (NAF) commander, as evidence of inconsistency to support a finding of reprisal; and, the IO’s analysis of answers to the four “acid test” questions used to determine if there was an abuse of authority resulting in reprisal actions was fatally flawed, resulting in an erroneous conclusion substantiating reprisal.  The Board voted unanimously to void and remove the applicant’s LOR from his record.  The Board members were not convinced the applicant reprised against the complainant (Col C) by not selecting her for the vacant AGR position; and concluded element four of the acid test was not satisfied, in that Col C would not have been selected for the AGR vacancy position even if she had not made the protected communication.  The Board concurred with the applicant the IO’s failure to interview the CC (Gen B) responsible for hiring the individual for the AGR vacancy was unjustifiable, and noted Gen B himself indicated he would not have placed the complainant in that position because she was not the right officer for the job.  Further, the Board found the IO was predisposed to a preconceived outcome to the investigation, and failed to pursue any exculpatory information which would have confirmed the facts as related by the applicant.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) with Exhibits A thru F at Exhibit G.

On 23 Oct 15, the Principal Deputy Assistant Secretary of the Air Force (Manpower and Reserve Affairs) (SAF/MR), acting within the authority delegated to SAF/MR by the Secretary of the Air Force, determined the evidence the applicant submitted was insufficient to invalidate and remove the LOR issued in response to the SAF/IG finding, and overturned the Board’s decision.  The SAF/MR believed the SAF/IG was in the best position to investigate the matter and, therefore, arrived at an accurate finding of fact in the case; the SAF/IG remedied any possible deficiencies in the original report when they conducted additional reviews in May and Sep 12 and determined the applicant’s arguments lacked merit; noted the Department of Defense IG (DoD/IG) independently reviewed and concurred with the original report; and, felt the AFBCMR panel had substituted its judgment for that of the IO, who had the benefit of collecting and evaluating evidence while the facts were fresh. 

A complete copy of the SAF/MR memorandum is at Exhibit H.

On 20 Nov 15, the applicant, through counsel, notified the SAF/MR that although the ROP in the case indicates the applicant and/or his counsel were provided all the evidence made available to the Board members for their deliberation, neither the applicant nor his counsel received a copy of the SAF/GC legal opinion concerning the Board’s ability to correct IG and other investigative records or a copy of the IG’s response to the applicant’s appeal, thus, they were not given the opportunity to respond, and the SAF/MR relied upon documents which went unchallenged.  Counsel believes once all documents relevant to the SAF/MR decision are fairly considered and evaluated, including the responses to the “previously unreviewed documents,” the SAF/MR can fairly reassess the Board’s recommendation.  

A complete copy of the applicant’s counsel’s letter is at Exhibit I.

On 19 May 16, the AFBCMR notified the applicant’s counsel the applicant’s case would be given de novo reconsideration by the Board.  (Exhibit J) 

On 7 Jun 16, applicant’s counsel, submitted a rebuttal in which he takes multiple exceptions to SAF/MR’s decision to overturn the Board’s initial decision:

	a.  The SAF/GC opinion states that “the Board may correct adverse information in a member’s records that result from an IG investigation.”  The Board did not seek a correction of the record that would result in a violation of the law nor the correction or expungement of an investigative record.  The Board simply recommended the applicant’s LOR be declared void and removed from his record.  

	b.  The Board found the failure to interview the key witness in the case, the commander responsible for hiring the individual for the AGR vacancy as was requested by the applicant, is “inexplicable and unjustified, and even standing alone would warrant corrective action.”  This was a responsible position for the Board to take.

	c.  In SAF/IG’s 10 Oct 12 response to the applicant’s appeal, the SAF/IG made it clear he considered the affidavit from the AFRC/CC (Gen B), who had not been interviewed, to be irrelevant evidence to a consideration of the case, making the appeal subject to the same charge leveled by the applicant in his initial application for relief.  

	d.  Counsel wonders why the AFBCMR would direct a new panel to conduct a “de novo reconsideration of [the] application?”  A properly constituted panel of members carefully considered all the evidence of a complex case and came to a well-reasoned judgment in favor of the applicant.  Certainly the appearance is one of seeking a new panel for a different result. 

	e.  Addressing the SAF/MR memo explicitly, counsel contends:

	1.  First. SAF/MR stated the “SAF/IG was in the best position to investigate the matter, and therefore, arrived at an accurate finding of fact in the case.”  It is clear that beginning with the investigator and through IG appeals, the IG deprived himself of the unquestionably relevant evidence in the form of an affidavit sworn by the applicant’s commander.  Without consideration of that evidence, as the Board found, no accurate finding of fact can be arrived at with reasonable confidence.

	2.  Second. SAF/MR stated it is the “applicant’s central argument…that investigators were predisposed to a particular outcome.”  There was only one IO of which we are aware, and as to him it was the Board which found, after a thorough examination of all the relevant evidence, that the “IO was predisposed to a preconceived outcome to the investigation.  The IO failed to pursue any exculpatory information which would have confirmed the facts as related by the applicant.” 

	3.  Third. SAF/MR stated “SAF/IG remedied any possible deficiencies in the original report.”  Counsel does not see a single remedy.  What Counsel sees is a relook at the initial investigation and a refusal to consider the affidavit of the applicant’s CC (Gen B) as relevant evidence.  
	
	4.  Fourth. SAF/MR stated the DoD/IG “independently reviewed the original report.”  However, the original report did not contain the applicant’s commander’s affidavit, an interview of him by the IO, nor even a reference to the fact the applicant had specifically requested the interview of his commander as part of the investigation.  It is unclear if the DoD/IG even saw the affidavit and considered it “relevant evidence.”  

	5.  Fifth. SAF/MR stated “absent a showing…that the applicant was deprived of rights to which he was entitled, it should be presumed that all of the investigation’s conclusions are correct.”  Exactly what rights does one being investigated have?  One would expect that among them would be the right to have critical, relevant witnesses considered.  

	6.  Sixth. SAF/MR stated “the AFBCMR panel [substituted] its judgment for that of the investigators, who had the benefit of collecting and evaluating evidence while the facts were fresh.”  The IO utterly failed in its duty to collect and evaluate all relevant evidence while the facts were fresh.  The Board did not substitute its judgment for that of the IO because he did not have all the facts to make an informed judgment. 

	f.  This case should be resolved promptly by SAF/MR without further panel consideration. 

A complete copy of the applicant’s counsel’s letter is at Exhibit K.

AIR FORCE EVALUATION:

SAF/IG recommends denial indicating there is no evidence of an error or an injustice.  In Feb 10, SAF/IG substantiated the allegation that the applicant, while serving as the Deputy of the Chief of Air Force Reserve, reprised against “Col C” when he did not select her for the REAMO position in violation of Title 10, USC § 1034.  In Jun 10, the DoD/IG approved the SAF/IG ROI, likewise finding the applicant engaged in reprisal.  Based upon the ROI findings, the applicant received an LOR.  Since then, the applicant has unsuccessfully appealed the ROI findings on multiple occasions, largely relying on a 2 Feb 12 sworn affidavit by the then Chief, Air Force Reserve, Lt Gen (Ret) B.  

By the applicant’s own admission, the DoD/IG denied his appeal twice, once after having reviewed Lt Gen (Ret) B’s affidavit.  In May 12, the applicant presented an appeal to the Air Force’s Deputy Inspector General (DIG), also submitting Lt Gen (Ret) B’s affidavit.  After reviewing the ROI, the legal review, and all the testimony, the DIG stated he came to the same result as the ROI.  In Sep 12, the applicant appealed to the new SAF/IG (TIG), providing the same information he provided the DIG in May 12.  After a review of the ROI and its exhibits, the legal review, the rebuttal arguments and Lt Gen (Ret) B’s affidavit, the TIG stood by the original result that the preponderance of the evidence supported the reprisal allegation substantiation.  In Dec 15, the applicant submitted a fourth appeal to the new DIG, again requesting a review of the facts and circumstances on his case.  In Feb 16, the new TIG responded, finding the applicant had “not provided any new evidence which would justify reversing the conclusion of reprisal in the original investigation or concluding anything different than the original ROI’s substantiation of reprisal.”  On 13 Jun 16, the DoD/IG reviewed the original ROI, the applicant’s appeal request, and the Feb 10 ROI, and found the applicant “did not provide new or compelling evidence which warrants reopening an investigation.”  The DOD/IG “found the SAF/IGS review thorough and approve their recommendation to deny the appeal.”  

Specifically addressing the applicant’s contentions:

	1.  Applicant’s Contention:  The IO failed to interview a critical witness [Lt Gen (Ret) B] as part of the IO’s investigation into alleged reprisal.  

SAF/IG Response:  The applicant has made this argument in the past.  In his Dec 15 request, the applicant stated “During my interview, I requested that Lt Gen (Ret) B be interviewed.”  When the IO asked the applicant “Do you desire that I interview any other witnesses on your behalf?” the applicant responded “No, I do not.”  When the IO asked “Do you know of anyone else who can provide further information concerning the matters we’ve discussed?” the applicant responded “Well, I’m assuming you talked to “BM,” “RR,” and Lt Gen (Ret) B.  I think those would be the relevant people.”  One could conclude the applicant believed his statement regarding who he assumed the IO had talked to is akin to a request to interview those individuals.  However, as is standard practice, based on the applicant’s testimony, as well as the totality of evidence the IO had at the time, the IO made the determination whether the named individuals had information relevant to the investigation.  The IO determined Lt Gen (Ret) B’s testimony was not necessary.  The applicant’s now-stated reason for interviewing Lt Gen (Ret) B was that he would have confirmed that Lt Gen (Ret) B made the decision to hire Col P (instead of Col C) as stated in Lt Gen B’s affidavit.  Depending upon which of the applicant’s statements you rely on, the applicant either recommended Lt Gen (Ret) B hire Col P, or the applicant decided to hire Col P.  However, the difference is not relevant for the Acid Test for reprisal.  

	2.  Applicant’s Contention:  The IO made erroneous “Findings of Fact” which were relied upon to substantiate reprisal.  Specifically: 

		a.  The applicant contends the following “finding of fact” is erroneous:  The applicant made the decision to hire Col P.  

SAF/IG Response:  Depending upon which of the applicant’s statements you rely on, either the applicant was the decision-maker who made the decision to hire Col P, or he recommended to the decision maker [Lt Gen (Ret) B] that Lt Gen (Ret) B hire Col P.  However, (during his interview with the IG) the applicant states three times that he made a “recommendation” to Lt Gen (Ret) B to hire Col P.  Assuming his statement is accurate, it does not change the IO’s finding under the Acid Test for reprisal that the applicant was a Responsible Management Official (RMO).  An RMO is defined in Air Force Instruction 90-301, Inspector General Complaints Resolution, as including both “official(s) who influenced or recommended to the deciding official that he/she take, withhold, or threaten the management/personnel action.”  Therefore, whether the applicant recommended to the deciding official that he hire Col P, or whether the applicant hired Col P himself as the deciding official, he remains the RMO.  

		b.  The applicant contends the following “finding of fact” is erroneous:  That negative comments the applicant made regarding Col C were based on Col C’s complaint. 

SAF/IG Response: The applicant states the negative comments he made about Col C were not based on her complaint to Lt Gen (Ret) B, but rather were based on the fact she made a personal appeal to Lt Gen (Ret) B outside of the established appeal process.  The IO analyzed the negative comments when looking at the question of “motive” under the fourth prong of the Reprisal Acid Test: “Does the evidence establish that the personnel action would have been taken, withheld, or threatened if the protected communication had not been made?”  The IO determined the applicant’s negative statements about Col C reflected the fact that, the applicant—as he himself admits—“thought less of her.”  Three independent witnesses testified that after conversations with the applicant about Col C, they were left with the clear belief the applicant would not select her for this position based on his negative opinion of her, which was tied to her complaint.”  Based on the testimony of these three witnesses, the IO reasonably found the applicant’s negative comments regarding Col C were related to her complaints about the ARB process in her appeal to Lt Gen (Ret) B, and therefore the comments were relevant in considering applicant’s motive for not selecting Col C for the position.  

		c.  The applicant contends the following “finding of fact” is erroneous:  That the applicant knew of Col C’s protected communication (PC).  

SAF/IG Response:  The applicant objects to the IO’s conclusion that he knew about Col C’s protected communication to Lt Gen (Ret) B, specifically objecting to the finding that he knew of the PC based on an email he had seen from “Col O,” appealing an AGR Board decision.  Col O’s email constituted a protected communication, as, similar to Col C’s email, it contained complaints about the potential violations of law and regulations related to the AGR Review Board process.  The IO noted, when shown a copy of the email Col C sent to Lt Gen (Ret) B, the applicant testified he had not seen the email.  However, the applicant acknowledged seeing Col O’s appeal email, which the applicant testified “looked very similar” to Col C’s email, shown to him by the IO.  More importantly, the IO determined the applicant did, in fact, review Col C’s appeal package.  “Col D” testified he showed the applicant the “package that Col C filed to make the claim against or the appeal request.”  Col D testified he “sat down” with the applicant and the package and pointed out highlights to the applicant.  The IO showed Col D a copy of the memo Col C sent to Lt Gen (Ret) B and asked Col D if that was what he showed to the applicant and what he was referring to as the “package.”  Col D confirmed that was “absolutely it.”  Based upon the testimony provided by Col D, the IO reasonably concluded the applicant was aware of Col C’s protected communication. 

		d.  The applicant contends the following “finding of fact” is erroneous:  That Col C was the #1 candidate for the open position.  

SAF/IG Response:  In the IO’s finding of fact, the IO states “Col C is designated as the most qualified candidate for [the} AGR Vacancy.”  A review of the exhibit the personnel officer provided to the applicant listing the qualified candidates for the open position confirms Col C and Col (Select) H were tied as the most qualified candidates, which the applicant notes in his testimony.  As the position required an 0-6, technically Col C was the more qualified of the tied applicants since Col (Sel) H had not yet pinned on the rank of O-6.  

	3.  Applicant’s Contention:  The IO’s analysis of the “Acid Test” was fatally flawed, resulting in an erroneous conclusion substantiating reprisal.  Specifically:

		a.  The applicant contends the following conclusion is erroneous:  A different personnel action would have been taken regardless of any protected communication.  

		b.  The applicant contends the following conclusion is erroneous:  Failure to conduct interviews was not an indication of inconsistency by the applicant.  

SAF/IG Response:  The applicant combines the fourth question of the Reprisal Acid Test (“Does the evidence establish that the personnel action would have been taken, withheld or threatened if the protected communication had not been made?”) with one of its five related sub-questions (consistency of the action.)  The IO determined the applicant was unreasonable in selecting a candidate for the position who (1) was not an AGR; and (2) only had “some” personnel experience, when AFI 36-2132, Full-Time Support (FTS) Active Guard and Reserve (AGR) Program, requires, for an AGR vacancy announcement, that eligible and qualified AGR applicants be forwarded to the selecting official for consideration prior to all other applicants being forwarded for consideration; and (b) the vacancy announcement stated that to be qualified for the position, extensive knowledge of AF and AFR personnel directives was “mandatory,” and the position was coded as a Staff Manpower-Personnel specialty qualification.  The IO analyzed the five sub-questions under the fourth question of the Reprisal Acid Test and determined, by a preponderance of the evidence, the applicant’s stated non-retaliatory reason (reason) for non-selecting Col C for the position was not the result of a reasonable application of the AGR Vacancy Announcement job requirements to the applicant’s qualifications (reasonableness).  The IO found the applicant’s statements relating his negative opinion of Col C based on her appeal to Lt Gen (Ret) B demonstrated his motive for non-selecting Col C (motive.)  By failing to adhere to the selection process set forth in AFI 36-2132, the applicant’s selection of Col P was accomplished in a procedurally incorrect manner (procedural correctness of action).  The Reprisal Acid Test led to the conclusion the favorable personnel action would not have been withheld had the protected communication not been made.  Therefore, a preponderance of the evidence establishes that the answer to question four is “no.”  

A preponderance of the evidence does not exist to find the applicant was inconsistent with past practice regarding interviewing the candidates for open positions.  However, this determination does not change the ultimate finding a preponderance of the evidence established the favorable personnel action would not have been withheld if the PC had not been made. 

The information presented by the applicant has been reviewed numerous times by both the SAF/IG and the DoD/IG.  Every review has resulted in a determination the original investigation and conclusion of reprisal were supported by a preponderance of the evidence.   The applicant has provided no new or compelling evidence to change those determinations.  

A complete copy of the SAF/IG evaluation, with attachments, is at Exhibit L.

On 16 Aug 16, a redacted copy of the ROP for AFBCMR Docket Number BC-2012-04795, which conveys that on 18 Apr 13, the Board considered and granted relief to Col C who contended she was the victim of reprisal due to the actions of the applicant of this case, was forwarded to the applicant and counsel for review and comment within 30 days (Exhibit N).  As of this date, no response has been received by this office.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of his request, the applicant submitted a rebuttal, through counsel, taking exceptions to the majority of the SAF/IG advisory.  Counsel contends this case is about an IO who simply made errors in judgment, major to be sure, that limited the gathering of evidence and the reaching of conclusions not consistent with the facts.  The selection of an officer not cut from quite the same mold as others, one who it was determined by distinguished Air Force officers best met the needs of command, should not be called a reprisal simply to fit a narrative, the truth be ignored and damned.  Sadly, what this case has become, and the subject advisory is but another example, is a circling of the wagons around a failed investigation.  The panel of senior Air Force civilians that scrutinized the record in this case for the BCMR unanimously concluded, inter alia, that the failure of the IO to interview the key witness in the case, Gen B, the then Commander of the Reserve Command, was “inexplicable and unjustified,” and the resulting IG ROI was merely “conclusory.”  It further found the evidence was convincing that the IO was “predisposed to a preconceived outcome to the investigation,” in failing to pursue any exculpatory information that would have confirmed facts supportive of the applicant.  The IGS memorandum does not provide new or compelling evidence which would call into question the BCMR panel’s analysis or warrant reversing the panel’s findings and recommendations.  The IGS memorandum seeks to diminish the applicants’ case by re-packaging a number of issues:

	a.  First.  Is it not fair to conclude the applicant, without benefit of the exact words he used seven years before, believed he wanted Gen B’s voice heard?  Given the fact Gen B appeared in virtually every scene of this play, why would the IO determine his testimony “not necessary” even if the applicant had not specifically asked for this contribution?  The failure to interview Gen B is unquestionably the error and injustice the original BCMR panel saw. 

	b.  Second.  We do not dispute the applicant was an RMO.  He was not the decision maker, but he certainly made, as was expected of him, recommendations to Gen B on the selection of the officer to fill the REAMO position.  

	c.  Third.  The IGS asserts three witnesses testified to the IO that after conversations with the applicant about Col C they were left with the clear belief the applicant would not select her for the position based on his negative opinion of her that “was tied to her complaint.”  This is plainly not true.  The applicant never said anything about the ARB process to Col D.  It is absurd to characterize Col D’s testimony as “unbiased” as the IO did, when clearly there was a close, personal relationship between Col C and him.  The only reason the applicant felt as he did about Col C was her flouting of the appeal process by going around it, arranging a face-to-face plea to Gen B to obtain an extension of service.  It had absolutely nothing to do with a personal letter, critical of the ARB process, about which the applicant was unaware.  Further, the testimony of Col Z and Col M plainly undergird the applicant’s position rather than corroborating Col D’s testimony.  Both witnesses point to Col C’s abuse of the established process of appealing adverse ARB decisions, and not the ARB decision making process that was the subject of the protected communication.  Negative feelings about one that stem from a reputation for going around the system to get his or her way are not unexpected in a military organization, and are not something about which a member can claim the protection of law.

	d.  Fourth.  The IGS attempts to bolster the IO’s “more likely than not” conclusion that the applicant knew of Col C’s protected communication prior to the non-selection of her for the REAMO position by pointing to an e-mail and Col D’s “drive-by.”  Concerning the e-mail, the fact that the applicant became aware of the letter (from the other officer) attached to the e-mail and its contents many months after Col C’s service was extended cannot lead any reasonable person to believe he had knowledge of any letter from Col C to Gen B, much less knowledge that there existed a letter containing protected communications.  To conclude as the IO did that the applicant had some specific knowledge of a protected communication because of this e-mail is reckless speculation and fails to meet even a “more likely than not” evidentiary standard.  Neither the IO nor the author of the IGS advisory even considered what is both reasonable and true, and that is the applicant’s comment that the letters were similar was formed on the spot in 2009, when the applicant saw Col C’s letter and read its contents for the very first time.  Concerning Col D’s “drive-by,” Col D was a principle advisor to both Gen B and the applicant.  Unbeknownst to the applicant at the time, he was also a close, personal friend of Col C.  A relationship between the two became clearer as his advocacy for her increased.  The applicant testified under oath that he had no recollection of reading a personal letter from Col C to Gen B or discussing it with Col D, period.  Far too much weight was given by the IO to Col D’s uncorroborated testimony with respect to the letter.  There was nothing in Col D’s recollection of the discussion referenced by the IO that should have overcome the frank, honest, and sworn testimony of the applicant to the effect that he never was aware of the PC.  

	e.  Fifth.  IGS appears to back off the finding of fact by the IO that Col C was the most qualified candidate for the position.  But, the IGS reaches its own conclusion that Col C was “technically” more qualified because Col (Sel) H had not yet pinned on and, by implication, Col C should have been selected.  Yet, it was the very reason Col C was considered by the command as behind Col (Sel) H.  As Gen B explains in his affidavit:

“At the time we were making the REAMO selection, we had an overabundance of O6 selects.  We made several policy changes to include lengthening the required time in grade before meeting the O6 selection board to help alleviate the backlog.  We also lowered the selection rates.  I gave guidance to put special emphasis on placing O6 selects while simultaneously taking a hard look at extending current O6s.  (Col C) was one of those current O6s who was already on an extension and her selection would have required yet another extension and would have run counter to my guidance.”  

Certainly, the IO and IGS would have been better able to reach an accurate conclusion if they had the testimony of Gen B.  By no measure was Col C the “most qualified candidate for the position, yet the IO made it a fact which he later used as the basis of the finding that “an unfavorable personnel action [had been] withheld from Col C.”

	f.  Sixth.  Addressing the “acid test,” the IGS supports the IO’s determination that Col C would have been selected but for the protected communication.  Again, drawing from Gen B’s affidavit, he noted Col C “had some problems at ACC” and there were concerns at the highest levels of command “with her performance.”  She was not considered a “team player.”   He stated it was his decision to hire the Director, REAMO, and he would not have placed Col C in that position.  She was simply “not the right officer for this job.”  He wanted more operational experience in the billet and directed the applicant to find it.  Moreover, as quoted above, the hiring of an O6 who would have required an extension to serve in the billet and that ran counter to command policy guidance.

In the end, Gen B and the applicant believed Col P gave them a dimension they wanted for the organization, a dimension none of the personnelists had.  That is not being unreasonable; that is exercising command prerogatives; and the BCMR panel understood.  The preponderance of the evidence establishes the applicant would have selected Col P over Col C and the other candidates even if the protected communication had never been made.  

The applicant requests no greater relief than the law permits, and that the BCMR panel considered and recommended a year and a half ago, i.e., the setting aside of the LOR issued to the applicant incident to the demonstrably failed ROI which led to the unjust finding of substantiated reprisal.  (Exhibit P)

THE BOARD CONCLUDES:

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.  We took notice of the applicant’s complete submission, to include his rebuttal response to the advisory opinion, in judging the merits of the case; however, we agree with the opinions of the DOD/IG and SAF/IG and the recommendation of SAF/IG and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  Accepting the applicant’s argument the Inspector General community acted in bad faith and “circled the wagons,” rather than giving his case fair consideration would require the Board to believe a significant number of Air Force and Department of Defense senior officers and leaders failed on multiple occasions to fulfill their assigned responsibilities.  The Board simply does not believe that is the case.  To accept the applicant’s argument, the Board would have to believe the SAF/IG IO, after completing his investigation, was incorrect in determining reprisal existed; that the SAF/IG himself, after reviewing the ROI and supporting documentation, was incorrect in agreeing reprisal existed; that the DOD/IG was incorrect to agree that reprisal existed after completing their review; that the AFRC/CC, after reviewing the ROI, was incorrect in agreeing reprisal existed and for issuing the applicant the LOR; that the AFRC/CC was incorrect again, after he reviewed the applicant’s rebuttal with a very detailed supporting argument from the defense counsel, to remain convinced reprisal existed and to retain the LOR as a matter of record; that the Deputy IG after reviewing the case upon appeal and considering the new affidavit from Lt Gen B, was wrong in his determination reprisal still existed; that the subsequent SAF/IG was wrong when, at the request of the applicant, he reviewed the case again with Lt Gen B’s affidavit in the file, and determined reprisal existed; that the AFBCMR Panel members who deliberated on the application of the alleged victim of reprisal, were collectively wrong when they agreed reprisal existed and granted her request for relief; that the Principle Deputy to the SAF/MR was incorrect when he personally reviewed and overturned an AFBCMR Panel decision because he was convinced the SAF/IG had it right, and reprisal existed; that the DOD/IG, after again reviewing the case with the new affidavit on file, determined that reprisal existed; and, that a third consecutive SAF/IG, after reviewing the case with the affidavit on file, determined that reprisal existed.  To ensure the Board was not susceptible to a similar argument, we reviewed the entire case, to include all rebuttals from the applicant and his counsel, which included the affidavit from Lt Gen B.  In fact, the only new information provided by the applicant since the original finding of reprisal by the IO was the affidavit submitted by Lt Gen B.  Regardless of the fact the IO did not interview Lt Gen B at the time, his testimony is now a matter of record, and has been reviewed by multiple senior leaders.  The affidavit does not alter the outcome of the case.  While the affidavit attests to what the AF/RE himself believed and observed, it is not dispositive of what the applicant knew or any internal motivation for the applicant’s actions.  That is where the investigative process must rely on the collective evidence, and not just accept the applicant’s contention that “reprisal was not in my heart.”  As just one example, the applicant still contends he did not know about the protected communications from Col C, even though the evidence establishes he was provided that information on two separate occasions.  Therefore, the Board does not believe the applicant successfully met his burden of proof, and in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

4.  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:

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-2014-01223 in Executive Session on 5 Oct 16 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit G.  Record of Proceedings, dated 16 Jul 15.
	Exhibit H.  Memorandum, SAF/MR, dated 23 Oct 15. 
Exhibit I.  Request for Reconsideration, dated 20 Nov 15.
	Exhibit J.  Letter, AFBCMR, dated 19 May 16.
	Exhibit K.  Letter, Applicant’s Counsel, dated 7 Jun 16.
	Exhibit L.  Memorandum, SAF/IG, dated 14 Jul 16, w/atchs.
	Exhibit M.  Letter, SAF/MRBR, dated 22 Jul 16.
	Exhibit N.  Redacted Record of Proceedings, dated 18 Apr 13.  
	Exhibit O.  Letter, AFBCMR, dated 16 Aug 16, w/atch. 
	Exhibit P.  Letter, Applicant’s Counsel, dated 20 Aug 16. 

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.