RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2016-01644
		
							COUNSEL:  NONE

							HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

He receive the following relief based on being the victim of substantiated reprisal pursuant to Title 10, United States Code, Section 1034 (10 U.S.C. §1034), Protected Communications; Prohibition of Retaliatory Personnel Actions:

a. His Enlisted Performance Report (EPR) for the period
31 October 2012 through 30 October 2013, be amended to include a senior rater endorsement.

b. His EPR for the period 31 October 2013 through 30 September 2014, be removed. (Administratively Corrected)

c. He be given supplemental promotion consideration to the grade of senior master sergeant (E-8). (Administratively Corrected)

d. He be reimbursed for college tuition in the amount of $2,000.

APPLICANT CONTENDS THAT:

The damage to his record and career are a direct result of reprisal.  In January 2014, after attempting to resolve corrective actions through his chain of command, he filed an anonymous Fraud, Waste and Abuse (FWA) complaint through the wing inspector general (IG), which involved several members of his unit, including a civilian flight chief.  His FWA complaint was ultimately substantiated and resulted in the civilian flight chief’s resignation and administrative action taken against nine complicit personnel.  He was one of the individuals found complicit and was issued a letter of reprimand for failing to report the FWA.  Consequently, he was forced to notify the group commander that he filed the anonymous FWA complaint and was ultimately exposed as the “Whistleblower.”  Over the next six months he suffered near irreparable damage at the hands of the perpetrators, which eventually led to his reassignment to another squadron as a means to prevent further reprisal actions against him.  Following the finding that four of his eight reprisal allegations were substantiated, his commander reinstated his Air Force Good Conduct Medal and he submitted a request appealing removal of his 2014 referral EPR through the Evaluation Report Appeals Board (ERAB).  However, his request for reimbursement for out-of-pocket expenses for a college course was denied.  In addition, his EPR for the period 31 September 2012 through 30 October 2013, should be amended to include a senior rater endorsement because the squadron superintendent who was found to have reprised against him by influencing the rating of his 2014 referral EPR, also issued him a letter of reprimand in 2013, which resulted in his not receiving a senior rater endorsement.

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

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of master sergeant (E-7).

In a letter digitally signed on 22 January 2016, the Whistleblower Reprisal Investigations Directorate, Department of Defense (DoD) IG, completed an oversight review of the applicant’s reprisal allegations in accordance with 10 U.S.C. § 1034, as implemented by DoD Directive 7050.06, Military Whistleblower Protection.  The review addressed the following allegations of reprisal.

Allegation 1:  On or about 13 November 2013, the applicant received a letter of reprimand from his squadron superintendent, in reprisal for making a protected communication in violation of 10 U.S.C. §1034.

Finding:  Not Substantiated

Allegation 2:  On or about 31 October 2013, the squadron superintendent influenced the decision to not recommend a senior rater indorsement for the applicant’s 2013 EPR, in reprisal for making a protected communication in violation of 10 U.S.C. §1034.

Finding: Not Substantiated

Allegation 3:  On or about 13 November 2013, the applicant’s squadron commander rejected a senior rater indorsement for the applicant’s 2013 EPR, in reprisal for making a protected communication in violation of 10 U.S.C. §1034.

Finding: Not Substantiated

Allegation 4:  On or about 29 July 2014, the vehicle operations supervisor gave the applicant a letter of reprimand, in reprisal for making a protected communication in violation of 10 U.S.C. §1034.

Finding:  Substantiated

Allegation 5:  On or about 16 October 2014, the applicant’s rater gave him a “3” rating on his EPR, in reprisal for making a protected communication in violation of 10 U.S.C. §1034.

Finding: Substantiated

Allegation 6:  On or about 16 October 2014, the applicant’s flight commander gave him a referral EPR by rating him a “2,” in reprisal for making a protected communication in violation of 10 U.S.C. §1034.

Finding: Substantiated

Allegation 7:   On or about 17 October 2014, the applicant’s group commander endorsed his referral EPR, in reprisal for making a protected communication in violation of 10 U.S.C. §1034.

Finding: Not Substantiated

Allegation 8:   On or about 16 October 2014, the squadron superintendent influenced the rating on the applicant’s 2014 referral EPR, in reprisal for making a protected communication in violation of 10 U.S.C. §1034.

Finding: Substantiated.

In a letter dated 9 February 2016, AFGSC/IGQ [Air Force Global Strike Command] notified the applicant that his case was reviewed by SAF/IGQ before it was finalized by DOD/IG in accordance with 10 U.S.C. §1034.  DoD/IG concurred with AFGSC/IGQ that of his complaint, allegations 4, 5, 6, and 8 were substantiated.  Further, DoD/IG concurred that the remaining allegations (l, 2, 3, and 7) failed to meet the requirements for reprisal and were not substantiated.  The applicant was informed he may petition the Board for corrective actions.

Although the Report of Investigation did not contain recommendations to make the applicant whole, the Investigating Officer did include a separate memorandum with the following recommendations: (1) Remove the applicant’s second letter of reprimand from his record [there is no evidence of this document]; (2) Re-accomplish the applicant’s 2014 EPR, to include senior rater indorsement, and exclude reference of both letters of reprimand [by amendment at Exhibit A, the applicant requested removal of the EPR (administratively corrected)]; (3) Reinstate the applicant’s Air Force Good Conduct Medal for the period 28 January 2012 through 27 January 2015 [Reinstated];  (4) Reimbursement for out-of-pocket college tuition since the referral EPR disqualified him from receiving tuition assistance [requires Board action]; (5) Supplemental promotion consideration to the grade of senior master sergeant [administratively corrected]; and (6) Provide the applicant a Permanent Change of Station assignment [Orders issued, with a report not later than date (RNLTD) of 30 July 2017].

According to AFI 36-2649, Voluntary Education Program, Airmen who are denied tuition assistance and use other means to fund courses are not eligible for retroactive tuition assistance for those courses after the removal of the above barriers [i.e., referral EPR].

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, D and E. 

AIR FORCE EVALUATION:

AFPC/DP3SA recommends denial of the applicant’s request for reimbursement of his college tuition.  AFI 36-2649 states members with a current referral EPR are ineligible for tuition assistance.  The applicant’s referral EPR rendered him ineligible for tuition assistance; however, he still elected to attend and pay for the college course.

A complete copy of the AFPC/DP3SA evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 25 July 2016, for review and comment within 30 days (Exhibit F).  As of this date, no response has been received by this office.

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 to warrant amending the applicant’s EPR for the period 31 October 2012 through 30 October 2013.  The applicant alleges he was not recommended for a senior rater endorsement because the squadron superintendent who issued him a letter of reprimand in 2013, was the same person who was found to have reprised against him when he influenced the rating of a subsequent EPR.  However, we find the applicant has not met his burden of proof to demonstrate he is the victim of an error or injustice.  In this respect we note the evidence of record also indicates the Investigating Officer determined the squadron superintendent did not reprise against the applicant when he issued him a letter of reprimand in 2013.  Furthermore, while the applicant successfully appealed to the ERAB for removal of his referral EPR ending 30 September 2014; there is no evidence he requested a determination be made for the contested EPR.  Accordingly, in view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this portion of his application.

4.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice regarding the applicant’s request for the reimbursement of college tuition.  The applicant alleges he has been a victim of reprisal for making a protected communication and has not been afforded full protection under the Whistleblower Protection Act (10 U.S.C. § 1034).  Based on this, he is requesting corrective actions as noted in his appeal to the Board.  Having carefully reviewed the evidence in this case and noting that the applicant was the victim of reprisal we believe a preponderance of the evidence substantiates that corrective action is warranted.  In this respect, we agree with the Investigating Officer’s recommendation that the applicant be reimbursed for out-of-pocket expenses for college tuition.  AFPC/DP3SA indicates relief should be denied because the applicant’s referral EPR rendered him ineligible for tuition assistance; however, the applicant’s successful appeal to the ERAB led to removal of the referral EPR from his records.  Consequently, there is no longer an obstacle to tuition assistance, and the applicant should be reimbursed for the cost of his college tuition.  The Investigating Officer also recommended removal of the second letter of reprimand.  While we see no evidence of a letter of reprimand in the applicant’s records, in the interest of administrative economy and fairness to the applicant, we recommend removal of any references to a letter of reprimand issued to him on or about 14 July 2014.  We also note the Investigating Officer’s other recommendations have already been administratively corrected, such as the applicant’s request for removal of the referral EPR and resulting supplemental promotion consideration. Accordingly, we recommend the applicant's records be corrected to the extent indicated below.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

a. He be reimbursed for educational expenses in the amount of $2,000.

b. The Letter of Reprimand issued to him on or about 14 July 2014, and any and all documents and references pertaining thereto be declared void and removed from his records.

The following members of the Board considered AFBCMR Docket Number BC-2016-01644 in Executive Session on 18 July 2017, under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member

All members voted to correct the records as recommended.  The following documentary evidence was considered:

Exhibit A.  DD Form 149, dated 13 April 2016, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, AFPC/DPSID, dated 31 May 2016.
Exhibit D.  Memorandum, AFPC/DP3SP, dated 14 June 2016.
Exhibit E.  Memorandum, AFPC/DP3SP, dated 18 July 2016, 
  w/atchs.
Exhibit F.  Letter, AFBCMR, dated 25 July 2016.

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.