RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-02343

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

Her records be corrected as follows based on being the victim of reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, dated 23 July 2007, and 10 U.S.C. § 1034:

	Her Article 15 Nonjudicial Punishment (NJP) be removed from her records.

	Her referral Enlisted Performance Report (EPR) be removed from her records.

	She be reinstated to the grade of Technical Sergeant (TSgt, E-6) with Date of Rank (DOR) 1 December 2012.  

On 19 June 2014, the applicant amended her request to include reinstatement on active duty and removal of her EPRs with overall ratings of “4” and “3.”  

On 28 October 2016, the applicant requested she be granted early retirement.  

APPLICANT CONTENDS THAT:

On 8 April 2013, her commander imposed NJP which included a reduction to the grade of Staff Sergeant (SSgt, E-5) and a reprimand.  The Article 15 was for failure to obey a lawful order to perform weekly backups of the Laboratory Information Management System (LIMS) and making a false official statement that the LIMS backup was made on 22 March 2013.  Additional exculpatory evidence was not considered.  The dates reflected in the “Login Review” do not have any association with the back-up process and approval was granted for use of an external storage device; however, this information was not considered.   

The Article 15 was based on the alleged observations of witnesses who lack credibility and the evidence was disproven.  She was also offered the Article 15 immediately upon filing an Inspector General (IG) complaint.

Due to the negative information in her record, she was affected by the Quality Force Review Board (QFRB) with a Date of Separation (DOS) of 29 September 2014.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 3 October 2001 and was released from active duty on 29 September 2014 with a narrative reason for separation of “Reduction in Force.”  She was credited with 12 years, 11 months and 27 days of active duty service.  

The applicant provides a letter dated 2 February 2012 from USAFSAM/CC endorsed by the Enclave Information Assurance Manager documenting use of an external hard drive.  

The applicant received an EPR with an overall rating of “4” for the period ending 28 February 2013.  The EPR stated the applicant would improve upon acting on constructive criticism and improving followership skills.  It also stated she performed duties in an adequate manner and that improving intrapersonal communications would boost success.  

On 8 April 2013, the applicant received an Article 15 for failure to obey a lawful order to perform weekly backups of the LIMS server, willfully disobeying a senior noncommissioned officer (SNCO), dereliction of duty, and making false statements.  The applicant was reduced to the grade of Staff Sergeant (SSgt, E-5) with a DOR of 15 April 2013.  

The applicant received a referral EPR with an overall rating of “3” for the period ending 27 June 2013.  The reasons for the referral EPR include failure to back-up the LIMS server, obey a lawful order then lied and the use of an unauthorized hard drive, for which she received an Article 15. 

The Secretary of the Air Force Inspector General Complaints Resolution (SAF/IGQ) Reprisal Complaint Analysis dated 29 April 2015 reflects the following 10 allegations of reprisal and abuse of authority were investigated in violation of 10 U.S.C. § 1034:

	Allegation 1:  On or about 22 October 2012, her superintendent issued a Letter of Admonishment in reprisal for making a Protected Communication (PC) to the IG. (Not Substantiated).

	Allegation 2:  On or about 4 March 2013, her superintendent downgraded her EPR in reprisal for making PC to the IG.  (Not Substantiated.  

 	Allegation 3:  On or about 26 March 2013, her superintendent and commander imposed NJP in reprisal for making PC to the IG. (Not Substantiated).  

	Allegation 4:  Between and on or about 26 March 2013 to on or about 15 April 2013, her section chief influenced her commander to offer and impose NJP in reprisal for making a PC to the IG. (Not Substantiated).  

	Allegation 5:  Between and on or about 26 March 2013 to 15 April 2013, her Noncommissioned Officer in Charge (NCOIC) influenced her commander to offer and impose NJP.  (Not Substantiated).  

	Allegation 6:  Between and on or about 26 March 2013 to on or about 15 April 2013, an NCO influenced her commander to offer and impose NJP in reprisal for making a PC to the IG. (Not Substantiated).  

	Allegation 7:  On or about 4 March 2013, her commander downgraded her EPR in reprisal for making a PC to the IG.  (Not Substantiated).

	Allegation 8:  On or about 15 April 2013, her commander offered NJP and imposed punishment in reprisal for making a PC to the IG. (Not Substantiated).  

	Allegation 9:  On or about 1 April 2013, her commander moved her from her duty position in her Air Force Specialty Code (AFSC) to the Base Health and Wellness Center (HAWC), a duty position out of her AFSC in reprisal for making a PC to the IG.  (Not Substantiated).

	Allegation 10:  On or about 1 April 2013, her superintendent moved her from her duty position in her AFSC to the HAWC, a duty position out of her AFSC in reprisal for making a PC to the IG.  (Not Substantiated).

In an e-mail dated 23 September 2015, the applicant requested her case be administratively closed until such time as she received a finalized report from the DOD IG.  

In a letter dated 8 October 2015, the Air Force Material Command (AFMC/IG) informed the applicant her reprisal complaint dated 20 March 2013 was examined under 10 U.S.C. § 1034 and the 88th Air Base Wing Inspector General (88 ABW/IG) concluded no reprisal occurred.  The AFMC/IG, SAF/IGQ and the DOD IG reviewed the findings and concurred.  Therefore, the complaint was closed.  While the reprisal was not supported by the facts, the applicant was advised she could petition the AFBCMR for a correction of any adverse personnel actions.  

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Forces offices of primary responsibility (OPR), which are attached at Exhibits D thru G.      

AIR FORCE EVALUATION:

AFPC/DPSID recommends denial for removal of the contested report.  Based on insufficient corroborating evidence provided by the applicant and the presumed legitimacy of the original crafting of the EPR, DPSID recommends the report not be voided from her permanent record.  The applicant has not provided compelling evidence to show the report is unjust or inaccurate as written.  To void the report would remove the accountability of the applicant for the offense.  

The rating chain appropriately chose to comment on the underlying wrongdoing which caused the report to be referred.  The applicant provided insufficient evidence to show that the referral comment on the EPR was inaccurate or unjust.  Therefore, DPSID contends the inclusion of the referral comment was appropriate and within the evaluator’s authority.  Moreover, a final review of the evaluation was accomplished by the additional rater and a subsequent agreement by the reviewer/commander served as a final “check and balance” in order to ensure the report was given a fair consideration.  Based on the presumed sufficiency of the Article 15, the mention of it in the report was proper and in accordance with applicable Air Force policies and procedures.  Consequently, this element of the applicant’s appeal is without merit.

During the contested reporting period, the applicant failed to refrain from misusing a government computer by inserting removal medial (external hard drive) that was not approved.  The commander deemed it a serious enough offense and proceeded with NJP.  The applicant does not provide sufficient evidence that would substantiate her assertions that the evidence used to support the NJP action was insufficient.   

The applicant provided insufficient documentation or evidence to prove the final EPR was rendered unfairly or unjustly.  Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  Additionally, it is considered to represent the rating chain’s best judgment at the time it is rendered.  To effectively challenge an evaluation, it is necessary to hear from all the members of the rating chain.  Statements from the evaluators are conspicuously absent.  Without the benefit of these statements, DPSID concludes the EPR is accurate as written and in accordance with AFI 36-2406, Officer and Enlisted Evaluations Systems.  

A complete copy of the AFPC/DPSID evaluation is at Exhibit D.

AFPC/DPSOE has no equity in the decision to remove the NJP action and will only address the grade issue.  The applicant was reduced to the grade of SSgt as a result of her Article 15 punishment.  Should the Article 15 be removed, the applicant’s grade should be restored to TSgt with DOR of 1 December 2012.

A complete copy of the AFPC/DPSOE evaluation is at Exhibit E.

AFPC/DPSOR-SEP recommends denial of the removal of the Article 15 and referral EPR.  The applicant’s selection to meet the QFRB was based on the negative quality indicators (Article 15 and referral EPR) in her records in accordance with the PSDM 13-125, Enlisted Quality Force Review Board.  The decision made by the QFRB to separate the applicant from the Air Force was made in accordance with established guidelines and procedures.  There was no evidence of an error or injustice in the selection process.

A complete copy of the AFPC/DPSOR-SEP evaluation is at Exhibit F.

AFLOA/JAJM recommends denial of the applicant’s requests.  After careful review of the Article 15 proceedings, JAJM finds no error with the NJP.  The date stamp on the print screen from the LIMS login was not the primary evidence used to support the allegations against the applicant.  Other evidence was used to show that the applicant had neglected her duty to back up the LIMS, such as a “last date modified” indicator on the back-up folder, which matched the date of the print screen.  Furthermore, after review of the proceedings, there is no apparent reason to distrust the multiple witnesses who testified against the applicant.  

On 15 April 2013, the applicant’s squadron commander offered the applicant NJP for willfully disobeying a SNCO in violation of Article 91, Uniform Code of Military Justice, dereliction of duty, in violation of Article 92, and making false statements, in violation of Article 107.  After consulting with a lawyer, the applicant accepted the NJP and submitted a written presentation.  After considering the evidence and the applicant’s submission, the squadron commander found that the applicant committed the alleged misconduct.  The commander sentenced her to a reduction in grade to the grade of SSgt with a new DOR of 15 April 2013.  On 22 April 2013, the applicant appealed the decision and submitted matters in writing.  On 30 April 2013, the appellate authority denied the applicant’s appeal.  A commander considering a case for disposition under Article 15 exercises largely unfettered discretion in evaluating the case, both as to whether punishment is warranted, and the nature and extent of the punishment.  The exercise of that discretion should generally not be reversed or otherwise changed on appeal or by the Board absent good cause.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit G.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 15 October 2012, she filed a PC with the 88 ABW/IG.  After filing the complaint, she began receiving unsubstantiated negative feedback, scrutiny of her work and negative criticism.  On 20 March 2013, she filed a reprisal IG complaint and on 22 March 2013 she signed the Whistleblower Protections Act under 18 [sic] U.S.C. § 1034.  

On 26 March 2013, her superintendent requested she demonstrate the proper procedures for completing a weekly backup of the LIMS.  She provided the detailed verbal instructions on how she performed the backups.  She was directed to stop overwriting files.  Since being assigned to the unit in July 2011 and conducting backups successfully with 100 percent completion rate on numerous occasions, she never intentionally or maliciously attempted to overwrite the files on the external hard drive.  

She never experienced or received any error messages or interruptions from the server that would indicate the backups were not successful.  Based on her experience, she consistently performed the “copy and paste” function to preserve backups for the LIMS system.  The witnesses to her alleged failure to back up the LIMS server were never present in the server room to qualify as witnesses nor were they trained as workgroup managers or system administrators in order to speak with technical experience regarding information technology or system administration.

On 1 April 2013, she was reassigned to the HAWC for alleged “training purposes.”  While assigned to the HAWC, she received a phone call to report in full service dress uniform because she was receiving an Article 15.  She consulted with the Area Defense Counsel (ADC) on whether to accept the Article 15 or demand trial by court martial.  Her ADC recommended she accept the Article 15 based on the fabricated information presented.

She understands the burden of proof is on her.  She was not properly afforded the opportunity to gather any evidence that could have been considered in contesting the NJP.  After accepting the Article 15, she requested a personal appearance before her commander.  When she arrived, she was informed her commander was not available due to being on leave and that she would have to make her appearance before the first sergeant who was not the authority imposing the punishment.  Her ADC requested her Article 15 be set aside; however, the request was not granted because she was already affected by the QFRB.  

A fact finding review was completed by the proprietary manufacturer of the software who examined the evidence of the alleged last date she performed a LIMS back up to the external hard drive.  It was confirmed by their investigation that the printed screenshot had no association with the backup process of LIMS; rather it was the date the last time that a lab sample (worker order) was logged into the LIMS.  

The external drive that was used to perform weekly backups on the LIMS server was approved by the Information Assurance Officer.  This was the only approved external hard drive that she used to back up the LIMS software.  The allegation was not supported nor was there any official documentation or photographs indicating use of the unapproved external drive.  

It should be noted she requested formal server and software training so she could more efficiently maintain both the Windows 2000 server and LIMS.  However, she was denied training by her commander who stated the decision was based on the recommendation of the communications squadron.  However, when her commander held a meeting with the communications squadron, they confirmed training was needed to properly maintain the software. Prior to the PC she filed with the IG on 5 October 2012 and the events that occurred thereafter; she had 12 years of honorable active duty service and she provides character statements in her own behalf.  She requests the Board expunge her record of the NJP and change her status from Individual Ready Reserve (IRR) to eligibility for retired status.  Based on the 15 year retirement eligibility, had she not been forced out due to force shaping, she would have been afforded and exercised her opportunity to elect early retirement.

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

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.  The applicant contends she was a victim of reprisal and requests her Article 15 and the contested EPRs be removed from her records and she be reinstated on active duty in the grade of TSgt or granted an early retirement.  However, we note 10 allegations were investigated under the Whistleblower Protection Act (10 U.S.C. § 1034) and the 88 ABW/IG, SAF/IG and the DOD/IG concluded no reprisal occurred.   Having reviewed the complete submission, to include her rebuttal response, and the evidence of record, we find no evidence which would lead us to believe the actions of her commander were unduly harsh or violated any Air Force instructions.  On the contrary, it appears the applicant’s NJP action and referral EPR were the result of her underlying behavior and dereliction of duties.   Furthermore, we find no error or injustice in the decision of the QFRB that the applicant not be retained, which was based on her records.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt the rationale expressed as the basis for our conclusion the applicant has failed to sustain her burden of proof of either an error or injustice.  In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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-2014-02343 in Executive Session on 6 April 2017 under the provisions of AFI 36-2603:

 , Panel Chair
 , Member
 , Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-02343 was considered:

	Exhibit A.  DD Form 149, dated 6 June 2014, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Reprisal Complaint Analysis, SAF/IG, dated 
			  29 April 2015 (WITHDRAWN).
	Exhibit D.  Memorandum, AFPC/DPSID, dated 10 August 2015.
	Exhibit E.  Memorandum, AFPC/DPSOE, dated 18 August 2015.
	Exhibit F.   Memorandum, AFPC/DPSOR-SEP, dated 20 August 2015.
	Exhibit G.  Memorandum, AFLOA/JAJM, dated 4 August 2014.
	Exhibit H.  Letter, SAF/MRBR, dated 26 August 2015.
	Exhibit I.  E-mail, Applicant, dated 23 September 2015.
	Exhibit J.  Letter, AFBCMR, dated 25 September 2015.
	Exhibit K.  Letter, Applicant, dated 28 October 2016,
			  w/atchs.	

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 that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.