RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04105 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. Her Letter of Reprimand (LOR), dated 12 Jul 13, be removed. 2. She be restored to her position as Commander. APPLICANT CONTENDS THAT: Through counsel, the applicant contends that her LOR was unjust and should be removed. Her removal from her position as commander was retaliation against her for an Equal Employment Opportunity (EEO) complaint she filed against her chain of command, more specifically, against her wing commander. She was subjected to age discrimination and subsequently retaliated against for fighting it. The allegations noted in her LOR, unfairly labeled her as chronically ill and being Absent Without Leave (AWOL); that she improperly changed Mission Accomplishment Reports (MARs) are unfounded; and denies any unethical practices with her Common Access Card (CAC) and password. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 6 Oct 05, the applicant became Commander, 446 AES. The applicant was promoted to the grade of Colonel, with an effective date and Date of Rank (DOR) of 4 Nov 06. According to the Military Personnel Data System (MilPDS), on 11 Apr 12, supervision with the Operations Group (OG) Commander became effective. On 21 Nov 12, the applicant was served a letter which constituted new leave policy to include, sick leave, Leave Without Pay (LWOP), and annual leave in lieu of sick leave. The new policy directed new reporting procedures specifically for the applicant. On that same date, the applicant acknowledged receipt of the notification. On 26 Dec 12, the applicant provided a rebuttal to the notification. On 19 Dec 12, a Commander-Directed Investigation (CDI) was initiated concerning allegations of misconduct involving the applicant, as Commander, 446 Aeromedical Evacuation Squadron (AES). On 3 Jan 13, the applicant received a letter from the OG/CC, Notice of Proposed Reprimand, for failure to request leave in accordance with established procedures and for being AWOL. On 4 Jan 13, the applicant acknowledged receipt of the notification. On 7 Jan 13, the applicant submitted a rebuttal to the notification letter. On 15 Jan 13, the applicant received a Letter of Oral Admonishment from the OG/CC, concerning her violation of the leave policy. On that same date, the applicant acknowledged receipt of the letter. According to a letter, from the Wing Staff Judge Advocate’s office, dated 2 Jun 13, a CDI was initiated raising allegations of wrongdoing against the applicant. A list of allegations reflects the applicant (1) inappropriately pressured subordinates to improperly record her mission status on required training documents to a 23 Sept 12 local training flight; (2) improperly recorded her mission status on required documents concerning a 23 Sept 12 local training flight; (3) improperly allowed a subordinate to reenlist knowing that he had a pending discharge for fitness failures; (4) within the last six months has had unexcused absences in excess of the 3 hours per week for fitness activities; (5) within the last six months has had unexcused absences or failed to report for duty on the assigned shift schedule; (6) failed to meet the requirements for taking and requesting leave; (7) inappropriately pressured her subordinates and/or authorized them to use her CAC/PIN or User ID/Password to review, approve/certify orders and other documents in AROWS and UTAPS in her absence; (8) inappropriately pressured subordinates to improperly record her mission status on required training documents related to an 18 Nov 12 local training flight; (9) improperly recorded her mission status on required training documents concerning an 18 Nov 12 local training flight; (10) improperly pressured one of her subordinates to take her open and/or closed book tests for her most recent qualification testing. The CDI findings indicated that the framed allegations 2, 3, 4, 5, 7, 9, and 10 were Substantiated and allegations 1, 6, and 8 were Unsubstantiated. JA noted the big question going forward concerns what duty status the applicant was in concerning the allegations, i.e. Military during Unit Training Assembly(s) (UTAs)/active duty or Civilian. The last allegation, Allegation 10, appears to be during a UTA. In addition, JA noted that since this action occurred during a UTA, it most likely would fall under Article 133, Conduct Unbecoming of an Officer. He noted the Investigating Officer (IO) has otherwise correctly analyzed this allegation, applying the preponderance of the evidence standard to the facts. JA concurred with the Findings and Conclusions reached by the IOs. On 12 Jul 13, the applicant was issued a Letter of Reprimand (LOR), based on the CDI which revealed evidence the applicant engaged in conduct which was inconsistent with that expected of Air Force members on several occasions. On that same date, the applicant acknowledged receipt of the LOR and that she understood her rights to submit a response within 30 days. On 9 Feb 14, the wing commander relieved the applicant of command for loss of confidence in her ability to command. On 21 Feb 14, the applicant provided a response to a letter, dated 7 Feb 14, with the subject, “Notice of Proposed Suspension (14 Calendar Days).” On 7 May 14, the Base EEO office notified the applicant of receipt of her complaint. On 8 Sep 14, the commander notified the applicant that he had reviewed her Article 138 complaint seeking restoration as commander, 446 AES; however, her request was denied. On 1 Oct 15, the applicant retired from the Air Force Reserve at age 60. She was credited with 36 years, 9 months, and 27 days of satisfactory Federal service. AIR FORCE EVALUATION: AFRC/A1K recommends denial indicating the applicant failed to exhaust all available avenues of administrative relief prior to seeking correction of military records, in accordance with (IAW) AFI 36-2907, Unfavorable Information File (UIF) Program. A1K notes that after careful review of the documents provided, the applicant was afforded the opportunity to provide statements and documentation within 30 business days to the commander who administered the LOR. The applicant was afforded due process regarding this matter. During the 30 days following the LOR, the applicant could have provided pertinent information about the incidents documented in the LOR before the commander made the final decision as to whether or not the LOR would be completed and placed in her record. IAW AFI 36-2907, para 3.4 through 3.5, LORs are mandatory for file in the unfavorable information file (UIF) for officer personnel and the UIF is not referred to the member for rebuttal opportunity because it is offered at the time the LOR is administered. The LOR was entered in the applicant’s personnel file as a matter of record. The complete A1K evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel refutes virtually every point made by the OPR and argues the advisory opinion seemingly concedes the substantive merit of the applicant's unfair treatment. Indeed, it is more than a mere coincidence that she filed an EEO complaint against her command and less than two weeks later they served her with the offending LOR. Counsel notes, here, the applicant in her three decades of service, had never received any type of administrative punishment. Thus, perhaps as a direct result of this compelling circumstantial evidence, the advisory opinion arguably places more emphasis upon the proper course to take "if the decision is to grant relief' than the alternative. Additionally, the advisory opinion mistakenly claims (without a scintilla of proof) the applicant failed to exhaust all avenues of administrative relief. Notably, its primary basis for denying relief is ensconced upon this legal technicality. However, its suggested basis is clearly misplaced, as the cited regulation, AFI 36-2907, does not expressly state that relief must be denied here. In fact, the two cited paragraphs, 3-4 and 3.5 are wholly irrelevant to the facts in this case. As such, the advisory opinion is misplaced in relying upon AFI 36-2907, and thus must be rejected. Counsel goes on to note, that in stark contrast to the advisory opinion's attenuated legal citation, the applicant has previously submitted a voluminous packet evidencing a well-developed pattern of objecting to command overreaching. In fact she has filed an Article 138, UCMJ complaint, which was denied - she then appealed the denial of relief. Regrettably this appeal was seemingly never acted upon. In summary, by way of example, she appealed complaints about tardiness, she appealed accusations about improperly taking an open book test, and she appealed allegations related to her decision to retain a deserving Airman. In all of these instances, and many more, she spoke up in writing in an attempt to right a perceived wrong. In addition to her clear pattern of protesting injustice, the undersigned has also attached a sworn affidavit. Indeed, there are several emails that will submit on 8 Sep 15, that detail her conversations with her ADC about the LOR rebuttal. Make no mistake; the applicant did in fact appeal the unjust LOR. Now, the advisory opinion infers that there is no evidence in her service record demonstrating that she appealed the LOR; however, there is likewise no evidence in the military record showing that she did not. If it does ultimately come down to a credibility contest, and it assuredly it should not, the undersigned has attached yet another insightful letter, from a Chaplain that further substantiates petitioner's claims, noting; “many people were humiliated, bulled, treated harshly, and eventually left [the command] because of the culture change of a hostile work environment.” (This faithful (and high ranking) chaplain should not be simply brushed aside, and ignored. In sum, it cannot be over emphasized, with due respect, that her command was a wholly unprofessional, spiteful and grossly retaliatory group. Tragically, the applicant was not the only one unfairly ostracized, punished and humiliated by them. Finally, the advisory opinion argues that this Board may not “provide a course of action on reinstatement of the applicant's command position.” This is inaccurate. Her position was that of a military commander, and as such, this Air Force Review Board is undoubtedly best suited to address this injustice. It seems the advisory opinion is, in effect, seeking to play “hot potato” with the applicant's career with regard to this command issue, but, with due respect, this miscarriage of justice should end here, and now. In support of her response, the applicant provides copies of letters of support and recommendation; including a letter from a former chaplain and an affidavit. The applicant’s complete response, with attachments, is at Exhibit E. 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. We took notice of the applicant’s complete submission, including counsel’s contentions and documentation in response to the Air Force evaluation, in judging the merits of the case. We note the comments of the Air Force Reserve Command; however, while we find whether or not the applicant responded to the LOR, important, equally important, is the findings and credibility of the CDI. In respect to this, we find the CDI was adequate, not technically flawed, and consistent with the allegations listed in the LOR. Additionally, based on the available evidence, the LOR and relief of command, in our view, was appropriate and well within the commanders’ discretionary authority. Aside, we note counsel’s arguments referencing AFI 36-2907, dated 26 Nov 14; however, this version superseded AFI 36-2907, dated 17 Jun 05, which was in effect at the time of the applicant’s receipt of the LOR and the references made by A1K were appropriate in this case. In view of the above and based on a preponderance of the evidence, we do not believe the applicant has established the existence of an error or an injustice. Accordingly, we find no basis to recommend granting the relief sought in this application. 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 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-2014-04105 in Executive Session on 19 Jan 16 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 15 Sep 14, w/atchs. Exhibit B. Command Directed Investigation, withdrawn. Exhibit C. Letter, AFRC/A1K, dated 14 Apr 15. Exhibit D. Letter, SAF/MRBR, dated 7 Jul 15. Exhibit E. Letter, Counsel, dated 5 Sep 15, w/atchs.