RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-01472

						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His records be corrected to reflect the following:

	a.  He be credited with an additional three years of active duty service.

	b.  He receive three years back-pay, to include all applicable pay raises and Cost of Living Adjustments (COLA) based on Moffett Federal Airfield, CA.  

c.  His leave balance be restored with 79 days of leave and any additional leave accrued from May 12 – May 15. 

	d.  He be granted repayment for three-years of medical 
insurance coverage in the amount of $7,200.  

	e.  He receive credit for Air War College (AWC).

	f.  He be granted a 20 year active duty retirement in an appropriate grade equal to or higher than Lieutenant Colonel (0-5).

	g.  He be granted a monetary amount due to mental anguish, financial stress or pain and suffering.

	h.  His separation code be changed, if it prevents him from reentering military service.  

APPLICANT CONTENDS THAT:

He was forced into the Individual Ready Reserve (IRR) after serving 17 years active duty service with the Air Force and the California Air National Guard (CA ANG) by a malicious leadership team bent on reprisal against anyone who pointed out their misdeeds or reported acts to the Inspector General (IG).  

This same leadership team perpetuated a “good ole boy” network and protected anyone willing to go along for the ride and ignore professional conduct required of officers.  

This leadership team took negative personnel actions against anyone who tried to hold them accountable through the IG process and have reached a new low by releasing Privacy Act (PA) protected information on another officer and as a result now find themselves embroiled in a Federal PA Law violation lawsuit.  Senior leaders at the National Guard Bureau (NGB) were given numerous opportunities to reign in this behavior yet failed to do so.   

In 2011, his initial reprisal complaint filed with the CA ANG IG office was forwarded to the Secretary of the Air Force IG (SAF/IG) for review but was never investigated, as with most complaints filed within California, his complaint was glossed over after a cursory complaint analysis between the SAF/IG and the accused who provided false official statements to justify the actions taken against him and others who filed complaints.  It was common practice for the IG to side with the accused and close cases without additional follow-up or feedback to “fact check” what they were told by the senior officials being questioned.   

Officer Performance Reports (OPRs) for the periods 26 Aug 10 – 11 Feb 13, containing unlawful statements written by his former leadership, have already been expunged from his records via the Evaluations Reports and Appeals Board (ERAB) process.  

While both the SAF/IG and Department of Defense (DoD)/IG chose not to investigate his complaint, he is convinced the reprisal actions of the CA ANG and the 129 Rescue Wing (129 RQW) were accomplished with extreme malice, prejudice, intent to harm, and with full intent to reprise against him for whistleblowing actions and his engagement into Protected Communications (PCs) regarding lack of adherence to regulations, unsafe flying and maintenance activity, and a hostile working environment created and fostered by senior leadership of the 129 RQW. 

Since 2005, his duty performance was on par or above average and spanned several levels of command while working for various wing, vice-wing and maintenance group commanders through 2011.  However, in 2011, after his whistleblowing actions he experienced reprisal and became a substandard officer accused of committing actions and exhibiting behavior not in accordance with Air Force standards.  In a series of fabricated stories and false official statements made by the former wing commander, who convinced the Adjutant General (TAG) of the California Military Department to curtail his active duty tour with the CA ANG one year after his orders had been renewed by the same individuals.  At the time of his Air Guard Reserve (AGR) curtailment, he had no documented adverse personnel actions (with the exception of the fabricated referral OPR); had 17 years of active duty service; was three-years shy of an active duty retirement, and had a stellar performance record.  

In Dec 11, he was pre-approved to attend Air War College (AWC).  However, after the 2011 Operational Readiness Inspection (ORI), his former wing commander failed to accept accountability for the marginal rating obtained by the wing and further elected not to hold any of his commanders (Maintenance or Operations Group) accountable for their roles in the marginal rating.  Instead the wing commander placed the entire blame on him for his and other subordinate commander failures.  

In Jan 12, the wing commander launched a Commander Directed Investigation (CDI) as an act of reprisal and to manufacture material to support his plan to curtail his AGR tour and force him into the IRR.  The entire process was a pre-meditated step to end his career with the ANG.  The charges of the CDI ranged from conduct unbecoming of a senior officer to dereliction of duty.  Some of the allegations were summarily found to be unsubstantiated by the investigating officer conducting the CDI.  

On 16 Jul 12, he was moved into the Mission Support Group (MSG) Deputy Commander position; however, he was restricted from performing these duties and subsequently forced to work in the Wing Plans office.  His reassignment action should have warranted a Change of Reporting Official (CRO) report; however, he was forced into an excess position within the MSG as an act of reprisal to ensure he was aligned for the “career kill” shot in Feb 13, when his former leadership forced him into the IRR based on his excess condition.  There was no reason for this action, other than a plan for removal from service since numerous Lt Col positions existed at the time of his reassignment to the MSG as an excess to the incumbent deputy commander.

He believes each and every negative performance report, the CDI, and AGR tour curtailment memo were written as an act of reprisal for his whistleblowing activity that began in Oct 11, when he first reported his findings regarding the wing commander and CA ANGs lack of adherence to substance abuse regulations to the IG.  He took the necessary steps to ensure his chain of command were aware he had engaged in a protected communication as he knew there would be repercussions once he challenged their explicit desire to discharge an airman under his command without due process or commander intervention.  

In support of his requests, the applicant provides a personal statement, copies of a Federal PA lawsuit against officers, copies of AF Forms 707A, Field Grade Officer Performance Report (Maj thru Col), AGR curtailment memorandum, IG responses, witness statements, and various other documents associated with his requests.  

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

STATEMENT OF FACTS:

On 18 Dec 92, the applicant was appointed as a Reserve of the Air Force in the grade of second lieutenant.  On 1 Jun 93, he was ordered to Extended Active Duty (EAD).  

On 22 Jan 12, a CDI investigated all aspects of the facts and circumstances allegations against the applicant:  

ALLEGATION #1:  He failed to follow direct orders of the wing commander, to include PLANORD VIGILANT SWORD 12-1, which required that the Oct 11 Operational Readiness Exercise (ORE) be the priority wing activity during the Oct 11 Unit Training Assembly (UTA).  The IO concluded this allegation is SUBSTANTIATED.  

ALLEGATION #2:  He was derelict in his duties leading up to and during an ACC Phase 1 ORI to include an absence without leave, and allegedly displaying conduct unbecoming of an officer during the ORI on or about 2 to 4 Dec 11.  The CDI concluded a preponderance of evidence shows the applicant did in fact depart the base without proper permission.  He failed to keep his leadership informed and should have remained “in the fight” until released or reaching his duty day limit, and concluded this particular part of the allegation is SUBSTANTIATED.  As for “allegedly displaying conduct unbecoming of an officer during the ORI on or about 2 – 4 Dec 11, the IO finds this specific part of allegation #3 [sic] UNSUBSTANTIATED.  

ALLEGATION #3:  Committed misconduct by condoning and/or falsifying the status of 20 short tons of deployable maintenance equipment in operational status reports and to LGRDX during the Phase 1 ORI.  CONCLUSION:  The IO concluded this allegation is UNSUBSTANTIATED.

ALLEGATION #4:  He was derelict in his duties by failing to recognize the validity of Air Force drug testing results and to comply and uphold Air Force standard as outlined in AFI 36-3209, Separations and Retirement Procedures for ANG and Air Force Reserve (USAFR).   CONCLUSION: The IO concluded this allegation is SUBSTANTIATED.   

ALLEGATION #5:  He obstructed good order and discipline with unprofessional conduct and email correspondence.  CONCLUSION:  The IO concluded this allegation is UNSUBSTANTIATED.  

In addition, the IO noted that not all that went wrong during the ORE and ORI can be laid at the feet of the applicant.  Specifically, the applicant was correct when he states that the Aircraft Maintenance Squadron (AMXS) has its own leadership team in place.  Despite the fact a few members of the AMXS team may indeed be new to the Aircraft Maintenance, they should have been able to address some of the very basic problems encountered and identified in the ORE and ORI reports (for example Tech Data usage, reflective belt usage, fire bottles out of date, etc.).  These leaders should have at least had the wherewithal to seek guidance, counseling, and mentorship from leaders to address well-known and documented issues in the maintenance community.  Further, the IO opined that many of the weak area issues surrounding the Maintenance Group indicate less than stellar Senior Noncommissioned Officer (SNCO) leadership as well. 

By undated memorandum, the Staff Judge Advocate (SJA) reviewed the CDI and Report of Investigation (ROI) and determined them to be legally sufficient, and recommended the wing commander approve the CDI findings, as written.

On 20 Mar 12, the wing commander reviewed the CDI and subsequent legal review and concurred with the findings and conclusions of the IO regarding the allegations. 

On 13 Apr 12, the wing commander notified the applicant of his intent to recommend that his AGR tour be involuntarily curtailed for substandard duty performance, misconduct, and professional dereliction IAW ANGI 36-101, Air National Guard AGR Program, under the provisions of paragraph 8.5, Involuntary Tour Curtailment.  On that same date, the applicant acknowledge receipt of the Notification of Involuntary AGR Tour Curtailment.  

On 19 Apr 12, the applicant acknowledged receipt of the Recommendation for Involuntary AGR Curtailment and provided a statement in his own behalf.  

On 24 Apr 12, the wing commander recommended to the Adjutant General the applicant’s AGR tour be involuntarily curtailed IAW ANGI 36-101, for substandard performance of duty as Logistics Management Officer.  In addition, the commander noted he removed the applicant from command and recommended curtailment of his AGR tour in lieu of taking additional disciplinary or punitive action. 

On 24 Apr 12, the Deputy SJA reviewed the case file and found it legally sufficient and concurred with the recommendation that there is sufficient evidence to support the applicant’s AGR Tour Curtailment. 

By undated letter, the Adjutant General reviewed the case file and concurred with the recommendation that the applicant’s AGR tour be involuntarily curtailed.  

According to a NGCA-JS-J1-HRO memorandum, dated 15 May 12, the applicant was notified that the Adjutant General had involuntary curtailed his AGR tour for cause, in accordance with ANGI 36-101.  Further, the applicant was notified that effective 17 May 12, he would be placed on terminal leave until the remaining balance of 79 days, which includes leave accrued for May – Jul 12, was exhausted to coincide with his 2 Aug 12 date of separation. The applicant acknowledged receipt of the involuntary curtailment tour notification.

Based on a SAF/IGQ memorandum, dated 18 May 12, the following analysis was provided in the applicant’s case:

The case contains the first two elements of reprisal:  the applicant made numerous PCs to the JFHQ-CA/IG and ACC/IGQ, and his removal from command, receipt of a referral OPR, and recommendation for AGR tour curtailment constitute Unfavorable Personnel Actions (UPAs).  Both the wing commander and the vice wing commander were aware that numerous IG complaints were submitted by members of the Wing; however, it is unknown whether they were aware that the applicant was one of the complainants at the time he was removed from command.  It is known that the wing commander at least became aware of the Oct 11, IG complaint (PC 1) in Jan 12 since this information was provided through testimony in the CDI conducted by the IO.  However, SAF/IGQ cannot confirm if the wing commander shared this information with the vice wing commander or the maintenance group commander, and the testimony from the CDI does not address this issue.  Regardless, the preponderance of the evidence shows that the UPAs would have occurred regardless whether or not the PCs were made.  

The wing commander was well within his authority to remove the applicant from command due to his unacceptable conduct and duty performance during and prior to the ORI.  Further, initiating a CDI was also within his authority, and the CDI was conducted by an officer from a different installation.  The CDI was determined to be legally sufficient by the Wing/JA.  The unit followed proper procedures when the referral OPR was done, and the referral OPR was mandated IAW AFI 36-2406 due to the removal of command.  Finally, the wing commander followed the appropriate procedures when he recommended to the CA TAG that the applicant’s AGR tour be curtailed and again the Wing/JA found the action legally sufficient and concurred with the action.   

The evidence does not support the conclusion that the applicant’s former commanders reprised against him by relieving him of command, issuing a referral OPR, and recommending curtailment of his AGR tour.  Rather, the evidence suggests that the actions would have taken place regardless of the PCs based on his behavior and actions.

Finally, the same rationale that mitigates against reprisal supports the argument that the Responsible Management Official (RMO) actions do not support credible allegations of abuse of authority.  The RMO actions did adversely affect the applicant, but the actions did not result in any personal gain or advantage to the RMOs.  All RMO actions were within applicable regulations, law or policies; the RMOs had valid reasons for initiating the actions, and they were reasonable and consistent.  The SAF/IGQ concluded that no further inquiry or investigation under 10 United States Code (USC) 1034 is warranted and the applicant’s complaint should be dismissed pursuant to review and approval by IG DoD Whistleblower Reprisal Investigations (IG DoD/WRI). 

On 30 May 12, the applicant was discharged from active duty, with a narrative reason for separation of “Termination of AGR Military Duty Tour.”  He was credited with 17 years and 3 days of active service.  

According to NGB Form 36-11, Statement of Understanding for Excess/Overage Condition, dated 13 Jul 12, the applicant was placed in an excess positon within the MSG.   

On 25 Jul 12, the applicant was notified that SAF/IGQ conducted a complaint analysis into his allegations and recommended the applicant’s allegations be dismissed.  In addition, IG DoD/WRI concurred with the determination and IAW DoD policy, approved the report and dismissed the allegations.  

According to Special Order P-004541, dated 25 Feb 13, on 11 Feb 13, the applicant was relieved from assignment and honorably discharged from the CA ANG and transferred to the USAFR and assigned to Headquarters Air Reserve Personnel Center (ARPC), effective 12 Feb 13.   

According to a DoD IG memorandum, dated 24 Mar 15, the applicant was notified that his complaint with the DoD Hotline, dated 22 Feb 15, alleging reprisal was not timely filed.  Specifically, his most recent alleged UPA was communicated on 12 Feb 13; however, he did not file the reprisal complaint with the IG until 22 Feb 15, more than 60 days later.  

AIR FORCE EVALUATION:

NGB/A1PP recommends denial the applicant’s request for restoration of three years of active duty, Air War College, promotion, back pay for three years based on salary/benefits, restoration of leave, COLA and salary increases, medical costs for his daughter, and 20 year active duty retirement as Lt Col.  NGB/A1PP indicates the applicant has not provided any new documentation supporting his claim that his career was cut short due to reprisal action.  In addition, ANGRC/JA reviewed the documentation and concurs with SAF/IGQ’s findings that insufficient evidence was provided to support the applicant’s claim of reprisal.

SAF/IGQ conducted a complaint analysis in to the allegations, and after a thorough examination of all the facts, concluded that responsible management officials did not reprise against the applicant nor abuse their authority by removing him from squadron command, issuing a referral OPR, and recommending him for involuntary curtailment.  Furthermore, based on the evidence, SAF/IGQ concluded there was insufficient justification to conduct an investigation under AFI 90-301 and Title 10 USC, section 1043.   

NGB/A1P concurs with A1PPs recommendation to deny the applicant’s request.

A complete copy of the NGB/A1PP evaluation, with A1P concurrence is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states while he appreciates the fact that A1P concurred with A1PPs opinion from his IG complaint; however, his case should not be decided based on that concurrence since we are dealing outside IG channels and are solely focused on an equitable resolution based on actual events that brought him to the Board to seek resolution.  In his opinion, the IG process failed several members of the California ANG, forcing other unit members to seek legal assistance outside military channels.  As a result, members are being offered settlements/relief from retaliatory actions levied by the CNG yet in each case, the IG stated they found no evidence of reprisal action against the military members.  

His case involves AGR duty service time; therefore, he cannot use the legal system for recourse as others who had their civil service career impacted have done.  He will show beyond a doubt where the Air Force Chief of Staff (CSAF) overturned career ending performance report documentation written by leadership of the 129 RQW in an attempt to smear the character of, and terminate the careers of commissioned and noncommissioned officers in the wing.   

The CDI report contained several allegations that were unsubstantiated by the IO; however, the CNG still used the allegations to remove him from AGR service. The depths of the 129 RQW leadership went to displace accountability are clear examples of quibbling, false statements, abuse of power and authority that went unchecked by senior leadership above the 129 RQW.  While one CDI does not entail retaliatory conduct by the 129 RQW leadership, launching 10 CDIs against members of the same unit, all of whom reported violations of the same wing leadership, should be cause for concern.  These allegations were validated by numerous IG complaints and grievances filed against the CNG and 129 RQW leadership through the Air Force IG system and other complaint processes and mechanisms.  

A second event that shows credibility of individuals acted upon by the 129 RQW leadership is that the ERAB was approached after impacted members of the wing received unfavorable performance reports and promotion recommendation files by the same wing leaders.  The ERAB unequivocally overturned 13 reports written by wing leadership but what is even more ironic, one of the overturned performance reports belonged to the IG whom 129 RQW and CNG leadership believed was supporting his IG case.  When the 129 RQW leadership became aware of the actions by the ERAB, the force support squadron commander was directed by the wing commander to contact the noncommissioned officer in charge (NCOIC) of the evaluations section at ARPC and demand they “reinstate” the reports after the CSAF had directed they be stricken from their official records.  Two of his OPRs written by the 129 RQW leadership were stricken from his military record along with a final evaluation period where the leadership of the 129 RQW elected not to submit a performance evaluation, was also stricken and accounted for with an AF Form 77, Letter of Evaluation covering a three-year period.  

When he would not recommend discharge of an airman under his command suspected of drug abuse based on the evidence in his case (dental records, prescribed medications and a letter written by a physician), his career took a negative turn and he became one of many targets of the 129 RQW leadership, who would stop at nothing to remove members who challenged or questioned them.  Currently, there are at least two CNG members with legal settlements pending against the 129 RQW.  The fact the CNG is settling out of court is a strong indicator that there is malfeasance at play in the 129 RQW and the CNG.  I

In Feb 13, he was forced into the IRR by the 129 RQW leadership.  He made several attempts to enter the USAFR; however, because of the AF Form 77 from the CSAF covering three rating periods without an official performance report in his records, USAFR commanders viewed this negatively and chose not to grant him an opportunity for continued service.  

The applicant’s complete response, with attachments, is at Exhibit G.

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 in justice regarding the applicant’s request for restoration of three years of active duty, Air War College, promotion, back pay for three years based on salary/benefits, restoration of leave, COLA and salary increases, medical costs for his daughter, and 20 year active duty retirement as Lt Col.  We took notice of the applicant’s complete submission, including his rebuttal arguments, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Additionally, the applicant alleges he has been the victim of reprisal as defined under 10 USC § 1034.  As a result of allegations of dereliction of duty and unprofessional conduct on the part of the applicant, an investigation was conducted and three (3) of the five (5) allegations made were found to be substantiated by a preponderance of evidence.  The applicant contends that the investigation was illegal in that it investigated a protected communication pursuant to 10 USC § 1034 and that the investigation itself was an act of reprisal as well as the subsequent administrative actions.  As such, based on the authority granted to this Board pursuant to 10 USC § 1034, we reviewed the complete evidence of record; however, we did not find the applicant has been the victim of reprisal pursuant to Title 10, U.S.C. Section 1034.  Rather, the evidence suggests that the actions would have taken place regardless of the PCs based on his behavior and actions.  In view of the above 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 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-2015-01472 in Executive Session on 20 Sep 16, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 31 Mar 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  CDI, dated 22 Jan 12, WITHDRAWN
	Exhibit D.  SAF/IGS Report/Analysis, 
  dated 18 May 12, WITHDRAWN
	Exhibit E.  Memorandum, NGB/A1P, dated 2 Oct 15, w/atch.
	Exhibit F.  Letter, SAF/MRBR, dated 11 Jan 16.
	Exhibit G.  Letter, Applicant, dated 2 Feb 16, 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.