RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-02369

						COUNSEL:  YES

						HEARING DESIRED:  NOT INDICATED

APPLICANT REQUESTS THAT:

His military records be corrected to reflect the following:

1.  Remove Letter of Reprimand (LOR), dated 1 Jan 14, and resulting Unfavorable Information File (UIF), dated 6 Jan 14.

2.  Remove referral Officer Performance Report (OPR) for the inclusive period 20 May 13 thru 13 Jun 14.

3.  Award a decoration for his deployment to Bagram Airfield, Afghanistan between Sep 13 to Jan 14.

APPLICANT CONTENDS THAT:

Through counsel, he was deployed to Bagram Airfield, Afghanistan from Sep 13 to Jan 14.  He was issued an LOR and subsequent actions by his commander as reprisal for contacting the Military Equal Opportunity (MEO) representative and discriminated against for being Jewish.

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

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force (RegAF) in the grade of Major with an indefinite obligation.

According to the documentation provided by the applicant:

1.  On 1 Jan 14, the applicant was issued a LOR by his deployed commander for violating Article 107, False Official Statements.

2.  On 4 Jan 14, the applicant provided a response to the LOR and requested the LOR be withdrawn and instead be issued a Letter of Counseling (LOC) for dereliction of duty.

3.  On 6 Jan 14, the applicant was issued an UIF by his deployed commander subsequent to the LOR.

On 11 Feb 14 and 3 Mar 14, the applicant was awarded both the Air Medal with five Bronze Oak Leaf Clusters and the Air Medal with six Bronze Oak Leaf Clusters during his deployment to Bagram Airfield, Afghanistan, for the period of 5 Mar 13 to 27 Oct 13 and 30 Oct 13 to 4 Dec 13.

On 1 Jul 14, the applicant was issued a referral OPR for the inclusive period of 20 May 13 thru 13 Jun 14 and indicated in Block III, Performance Factors, “Does Not Meet Standards” and Block IV, Rater Overall Assessment, “Failed to meet stnds; falsified official statement/violated UCMJ Art 107—-rx’d LOR & early return from deployment”.

On 11 Jul 14, the applicant provided a rebuttal to the referral OPR.

On 18 Jul 14, the final reviewer concurred with the referral OPR and on 22 Jul 14 the applicant acknowledged receipt.

According to the documentation provided in the applicant’s rebuttal:

1.	On 21 Jul 14, the applicant filed a complaint with the IG for reprisal.  

2.	On 3 Sep 14, AFCENT/IG found that a preponderance of the evidence did not support reprisal and recommended DISMISSAL.

3.	On 27 Oct 14, ACC/IG recommended DISMISSAL.

4.	On 14 May 15, SAF/IGQ concurred and recommended to DISMISS.

5.	On 5 Aug 15, DoD/IG issued a final decision concurring with lower recommendations to DISMISS the complaint.

6.	On 14 Oct 15, the Evaluation Reports Appeal Board (ERAB) returned the applicant’s request for removal of his Referral OPR without action.

In support of his case, the applicant provided a supplemental statement, copies of numerous documents to include, but not limited to, 156 Character Reference letters. 

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, E and F.

AIR FORCE EVALUATION:

AFPC/JA recommends denial indicating the applicant has not failed to exhaust all other available administrative remedies prior to submitting an application to the Board.  The applicant has not filed a reprisal complaint with the Inspector General’s (IG) office.  Based on review of his supporting documentation, it appears he has a viable claim of reprisal.  

A complete copy of the AFPC/JA evaluation is at Exhibit C.

AFPC/DP2SSM addresses the applicant’s LOR and recommends denial indicating there is no evidence of an error or injustice.  The applicant claimed the Commander gave him the LOR due to reprisal, but there is no proof from the proper agency that reprisal actually occurred.  The Commander had the authority to provide the applicant a LOR for False Official Statement.

A complete copy of the AFPC/DP2SSM evaluation is at Exhibit D.

AFPC/DPS2PE addresses the applicant’s request to void his OPR, rendered for the period of 20 May 13 thru 13 Jun 14, and indicates the applicant has failed to exhaust all other available administrative remedies prior to submitting an application to the Board.  In accordance (IAW) AFI 36-2406, Officer and Enlisted Evaluation Systems, paragraph 10.1 states the ERAB was established to provide all Air Force Personnel with an avenue of relief for correcting errors or injustices in evaluations at the lowest possible level.

A complete copy of the AFPC/DP2SSM evaluation is at Exhibit D.

AFPC/DP2SP addresses the applicant’s request for award of a decoration for his deployment to Afghanistan and recommends denial indicating there is no evidence of an error or injustice.  The applicant does not indicate what award he should receive.  In order to reasonably consider the applicant’s request the will need to submit a recommendation from someone with firsthand knowledge of the act/achievement preferably from someone within the applicant’s chain of command at the time of the act/achievement, a proposed citation, and eyewitness statements from those who can attest to the act/achievement.  

A complete copy of the AFPC/DP2SP evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes virtually every point made by the OPRs and argues that:

1.  He filed a complaint with the IG in Jul 14, but the complaint was denied.

2.  He provided sufficient evidence to show the commander took a retaliatory, overly harsh, and reprisal action when he issued the LOR.  He provided a memorandum to the President of the promotion board to Major and explained succinctly why he suffered reprisal. 
  
3.  He filed a request with the ERAB and on 14 Oct 16, the ERAB refused to adjudicate the case.  The AFBCMR legal advisor advised him to treat the refusal as a denial.

	4.  His commander is the person who would recommend him for an appropriate award.  Given his reprisal action, he cannot obtain a recommendation from his commander.

	5.  He has continued to demonstrate professionalism and trustworthiness and is evidenced by his promotion to the grade of Major, effective 1 Jan 17, attending the aircraft Mishap Investigation Course and Aviation safety Program Management Course, as well as his upgrade to Instructor Pilot in the NATO E-3A.

In further support of his requests, the applicant provides copies of a SURF, Letter from SAF/IGQ, memorandum to the President of the promotion board, email from the ERAB, two certificates of training and one evaluation report for training.

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

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 removing the contested documents from his records.  We note that AFPC/JA and AFPC/DPS2PE indicate the applicant failed to exhaust all of his administrative remedies provided by existing law or regulations; however, it appears the applicant has.  After careful review of the evidence we are not persuaded the contested OPR is not a true and accurate assessment of his demonstrated potential during the specified time period or that the comments contained in the report are in error or contrary to the provisions of the governing instruction.  Additionally, the applicant has not provided substantial evidence to show that the LOR and subsequent UIF makes him the victim of an error or injustice.  As noted by AFPC/DP2SSM, the commander had the authority to provide the applicant a LOR for the False Official Statement.  We also note the applicant requests a decoration for his deployment to Bagram Airfield, Afghanistan be awarded.  However, as noted by AFPC/DP2SP, the applicant does not indicate what award he should receive.  Should the applicant submit the documents outlined in AFPC/DP2SP’s memo, we would be willing to reconsider his request.  Therefore, we conclude the applicant has failed to sustain his burden of proof that he has been the victim of an error on injustice.  In view of the above and in the absence of persuasive evidence to the contrary, we find no basis to recommend granting any of the relief sought in this application.

4.  The applicant alleges he has been the victim of a reprisal.  As noted above, on 21 Jul 14, the applicant filed an IG complaint.  In response, AFCENT/IG found that a preponderance of the evidence did not support reprisal and recommended DISMISSAL.  ACC/IG and SAF/IGQ concurred and recommended it be DISMISS.  On 5 Aug 15, DoD/IG issued a final decision concurring with lower recommendations to DISMISS the complaint.  Nevertheless, based on the authority granted to this Board pursuant to Title 10 U.S.C. Section 1034, we reviewed the complete evidence of record to reach our own independent determination of whether reprisal occurred.  Based on our review, we did not find any connection between the applicant’s MEO complaint and the issuance of the LOR and UIF for making false official statements.  In view of the foregoing, we conclude the applicant and counsel have failed to establish the actions to issue the LOR, initiate a UIF, and render a referral OPR were due to reprisal for his making the protected communication.  Therefore, in the absence of persuasive evidence to the contrary, we do not find that the applicant has been the victim of reprisal pursuant to Title 10, U.S.C. Section 1034.

5.  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, 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-2016-02369 in Executive Session on 6 Feb 18 under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-02369 was considered:

	Exhibit A.  DD Form 149, dated 5 May 16, w/atchs.
	Exhibit B.  Excerpts from Personnel Records.
	Exhibit C.  Memorandum, AFPC/JA, dated 29 Sep 16, w/atchs.
Exhibit D.  Memorandum, AFPC/DP2SSM, dated 6 Dec 16. 	Exhibit E.  Memorandum, AFPC/DPS2PE, dated 10 Jan 17. 
Exhibit F.  Memorandum, AFPC/DP2SP, dated 7 Feb 17. 
Exhibit G.  Letter, AFBCMR, dated 25 Jul 17.
	Exhibit H.  Letter, Applicant, dated 24 Aug 17.
Exhibit I.  Applicant Rebuttal, dated 7 Sep 17, 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.