RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04345 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His referral Officer Performance Reports (OPRs) for the periods ending 31 January and 8 December 2013 be rewritten or removed from his records 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. APPLICANT CONTENDS THAT: He was the victim of reprisal. On 4 October 2012, he submitted a Congressional complaint regarding mistreatment by his commander. As a result of his complaint, he received a Letter of Reprimand (LOR). The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is in the Air Force Reserve currently serving in the grade of captain (O-3). According to the AF Form 707, Officer Performance Report (Lt thru Col), for the period ending 31 January 2013, the applicant received a “Does Not Meet Standards” referral OPR. The reasons for the referral report include he was counseled on decision making and financial irresponsibility and he did not meet minimum acceptable standards. According to the AF Form 707 for the period ending 8 December 2013, the applicant received a “Does Not Meet Standards” referral OPR. The reasons for the referral report include that he had not demonstrated the ability to make sound financial decisions and was counseled for delinquent Government Travel Card (GTC). In a letter dated 11 December 2014, SAF/MRBR informed the applicant his Inspector General (IG) complaint of reprisal case was open and provided the applicant an opportunity to request his case be administratively closed until such time as his case is resolved through the appropriate IG authority (Exhibit B). According to the SAF/IG Report of Investigation (ROI), undated, the applicant filed an IG complaint on 27 September 2012 and an investigation was conducted from 19 December 2013 to 23 April 2014. The investigation determined the following five allegations were not substantiated as reprisal in violation of 10 U.S.C. § 1034: Allegation 1: On or about 27 September 2012, the applicant’s commander removed him from his position as Sustainment Flight Commander in reprisal. Allegation 2: On or about 27 October 2012, his commander issued him a LOR in reprisal for having made a protected communication. Allegation 3: On or about 28 November 2012, his commander issued him a LOR in reprisal for having made a protected communication. Allegation 4: On or about 28 November 2012, his commander recommended he be issued a LOR in reprisal for having made a protected communication. Allegation 5: On or about 30 September 2012, his commander did not support him going on Military Personnel Appropriations (MPA) orders at the Force Support Squadron (FSS) in reprisal for having made a protected communication. In a letter dated 22 December 2014, HQ AFRC/IGD notified the applicant that in accordance with AFI 90-301, Inspector General Complaints Resolution, an investigation into his allegations of reprisal was conducted and the IG determined the aforementioned five allegations were not substantiated as reprisal in violation of 10 U.S.C. § 1034. In an e-mail dated 29 December 2014, the applicant requested his case be administratively closed pending the DOD IG review of his reprisal case. In a memorandum dated 7 January 2015, the applicant requested his case be re-opened and stated he was not satisfied with the outcome of his IG reprisal case (Exhibit D). AIR FORCE EVALUATION: ARPC/DPTS recommends denial. The applicant’s IG complaint of reprisal was not substantiated. The applicant’s requests that his 31 January and 8 December 2013 OPRs be re-written or void appears to be unfounded. To grant relief would be contrary to the AFRC/IGD whose final findings on all five allegations of reprisal were not substantiated. A complete copy of the ARPC/DPTS evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He understands that his IG reprisal and Congressional complaints were found to be unsubstantiated. However, he does not agree and requests that his performance reports be removed. He was treated unfairly during these reporting periods and was faced with unemployment because of the false allegations. This led to tremendous emotional and financial hardships and the working conditions were hostile at times. Additionally his Change of Reporting Official (CRO) report was completed after he out- processed. He left his forwarding address, telephone number and e-mail but the report was sent to his previous address which did not allow him the opportunity to respond. The applicant’s complete submission, with attachments, 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 timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant requests the contested OPRs be rewritten or removed from his records based on being the victim of reprisal per 10 U.S.C. § 1034. We also note the applicant disagrees with the findings of the AFRC/IGD who determined the five allegations of reprisal were not substantiated as reprisal in violation of 10 U.S.C. § 1034 and that he was not afforded an opportunity to provide a response to the CRO report for the period ending 8 December 2013. However, having carefully reviewed the complete case, we are not persuaded the applicant has provided sufficient evidence to refute the findings of his IG complaint or that the contested reports are not a true and accurate assessment of his performance and demonstrated potential during the specified periods of time. Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility that the applicant has not sustained his burden of proof and adopt the rationale expressed as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, 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 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-2014-04345 in Executive Session on 8 December 2015 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 21 January 2014, w/atchs. Exhibit B. Letter, SAF/MRBR, dated 11 December 2014. Exhibit C. Report of Investigation, SAF/IG, undated (withdrawn). Exhibit D. Letter, Applicant, dated 7 January 2015. w/atch. Exhibit E. Memorandum, ARPC/DPTS, dated 2 October 2015. Exhibit F. Letter, SAF/MRBR, dated 14 October 2015. Exhibit G. Letter, Applicant, dated 13 November 2015, 2/atchs.