RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-03927

XXXXXXXXXXXXXX	COUNSEL: 	 

  	HEARING: YES

APPLICANT REQUESTS THAT:

His records be corrected as follows based on allegations of reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, and 10 USC 1034:

	His letter of counseling (LOC) dated 6 Aug 15 be removed from his record.

	He be awarded inactive duty training (IDT) and active duty (ADT) points previously withheld, to include time spent working with his Area Defense Counsel (ADC).

	Initial and mid-term feedback forms completed Jan to Dec 15 be removed from his record.

	Mental health documents from Jan to Dec 15 be removed from his record.

	His unfavorable information file (UIF) be removed from his record.

	Any negative documents pertaining to his security clearance be removed from his record.

	Any adverse documents in his officer selection record (OSR) from Jan to Dec 15, including revocation of telecommuting privileges, be removed.

	Any documents concerning adverse actions proposed or taken by his unit, to include involuntary separation action be removed.

	He be promoted to the grade of colonel with a date of rank (DOR) effective from the CY12 Colonel Line and Nonline (PR) Selection Board and he be provided retroactive back pay.

	His retirement date be adjusted to permit three years in grade as a colonel and he receive 10 points per month for the period.

	He be awarded a Meritorious Service Medal (MSM).

	Any additional relief the BCMR deems appropriate.
APPLICANT CONTENDS THAT:

Counsel, on behalf of the applicant, states he prevailed in former AFBCMR cases.  His forced retirement was revoked; he was reinstated, awarded Reserve participation points and granted special selection board (SSB) consideration for colonel.

There were unfounded allegations he submitted fraudulent AF IMT 40A, Record of Inactive Duty Training, while serving as a United States Air Force Academy (USAFA) Admissions Liaison Officer (ALOA).  A commander directed investigation (CDI) determined there was no intent on his part to defraud the government.

In BC-2012-03153, he was awarded an additional 79 paid IDT points for his R/R year ending 4 Aug 14.

In BC-2015-01688, he was awarded 10 paid IDT points for each month starting 1 Apr 14 through 28 Feb 15 (110 total points), due to delays in AFRC reinstating him.

Upon reinstatement, he was assigned to Detachment 4, Civil Air Patrol (CAP-USAF).  His new unit made it known he was not welcomed.  Although he was a lieutenant colonel, he was assigned a GS-12 supervisor who led a vigorous campaign against him.  He was denied points and endured derogatory comments and counseling sessions.  No valid legal justification was provided for denial of IDT points and MPA days, to include the time he spent with his ADC, despite the ADC’s notification to his chain of command.  He had no choice but to request voluntary reassignment into the Individual Ready Reserve (IRR).  The aggressive and unprofessional behavior of his unit forced him prematurely into the IRR and impaired his ability to be promoted to the grade of colonel by a SSB as directed by the AFBCMR.

He notified his commander of the impropriety of a GS-12 rating a lieutenant colonel but his request for change of supervisor was denied.  On 28 Jul 15, he filed an inspector general (IG) complaint.  While the IG complaint was pending and he was protected under 10 U.S.C. 1034, he was issued a LOC on 6 Aug 15.  The LOC for failing to present a briefing for a training muster was followed by numerous other unfounded attacks on his character.

On 22 Sep 15, his supervisor attempted to defame him by distributing copies of the LOC and his response to a litany of unit members.  This was in violation of the Privacy Act, which was substantiated by the 42nd Communications Squadron (42 CS) Privacy Act Office.

On 18 Nov 15, as a result of a Freedom of Information Act (FOIA) request, he uncovered his supervisor and his prior unit had been in communication prior to his arrival.  His supervisor was encouraged to resist the AFBCMR’s directive.  His supervisor also submitted a memorandum for record (MFR) dated 9 Jul 15, to the Clinical Psychologist and Behavioral Health Flight Commander. 

The applicant and his family have endured nearly a decade of unfair and unsubstantiated accusations, which have led to a tremendous amount of stress and expenses, well over $15,000.  With no awards since 2006 and his OPRs and LOEs, the changes of being promoted in the regular course are extremely thin.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a retired Air Force Reserve lieutenant colonel.

In BC-2012-03153, the Board on 25 Apr 13 found while there was no evidence of reprisal, there were personality conflicts and a troubling climate to warrant granting relief.  The AFBCMR granted removal of the letters of admonishment, revocation of a security clearance, UIF and adverse documents in his OSR and an OPR for the period ending 3 Aug 10.  He was also awarded 36 non-paid IDT points, 119 paid IDT points and reinstatement to his Reserve status.  The AFBCMR directed reassignment to an Air Force Reserve Category E participation program within 120 days of the directive, dated 17 Dec 13, and ordered the applicant be considered by a SSB for promotion by the CY2012 Colonel CSB.

In BC-2012-03153-2, the AFBCMR granted an additional 79-paid IDT points for his R/R year Aug 13 to Aug 14 but denied his request for award of a Meritorious Service Medal (MSM).

Per Reserve Order DA-00332 dated 26 Nov 14, he was assigned to Detachment 4, CAP-USAF, Buckley AFB, CO, effective 1 Apr 14.

On 2 Feb 16 (BC-2015-01688), the Board noted the earlier decision that the applicant be reinstated effective 1 Apr 14 but that he was not assigned to a unit where he could legitimately earn points until 7 Mar 15.  The Board awarded an additional 10 paid IDT points for each month from 1 Apr 14 through 28 Feb 15 for satisfactory service.

The applicant provides a LOC dated 6 Aug 15 issued by his GS-12 supervisor, which states he was derelict in the performance of his duty by failing to provide a mandatory training presentation to the cadre during a regional training muster.

In an e-mail dated 20 Aug 15, his ADC reached out to his commander for assistance regarding his LOC, denial of IDT points, IG complaint and past AFBCMR actions.  

On 29 Jun 15, the applicant informed the CAP-USAF Commander (CAP-USAF/CC), his supervisor was sharing his emails with other members in his unit who were not in his chain of command.  His welcome package did not include a telecommute agreement and he later discovered the oversight after his IDT points were denied.  His supervisor sent him e-mails on 7 Apr and 23 Jun 15, which stated although he came to the unit through an unexpected and an unusual process; it did not give him special privileges.

On 28 Jul 15, he filed an IG complaint regarding the denial for change of reporting official.

On 4 Sep 15, CAP-USAF/CC advised the applicant after discussion with the Holm Center commander (the applicant’s senior rater) and civilian personnel at Maxwell AFB, AL, it was determined his GS-12 supervisor did meet the requirements of AFI 34-2406, Officer and Enlisted Evaluations, to serve as his rater.  While AFI 34-2406, paragraph 1.5.1.2.1.1 is a starting point for rater determination, it must be paired with the excerpts, which states for officer grades, the reviewer/senior rater determines equivalency for raters and additional raters.

AFI 36-2406, paragraph 1.5.2.1.2 states for officers, raters must be a civilian serving in a grade equal to or higher than the ratee.  

On 26 Oct 15, the CAP-USAF CC informed the 42 CS he confirmed the applicant’s LOC and rebuttal response were released to at least two individuals who did not have a need for the record in the performance of their official duties in violation of the Privacy Act of 1974.  The commander noted he had taken appropriate action to include remedial Privacy Act training for the employee who released the record.

On 19 Feb 16, CAP-USAF IG informed the applicant no evidence was found to justify further examination under the IG Complaints Resolution Program.  His complaint was dismissed in accordance with AFI 90-30, Inspector General Complaints and Resolution, and closed without further action.   

Per Reserve Order EK-3405 dated 2 Jun 17, the applicant was transferred to the Retired Reserve on 31 Mar 17.  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.  

AIR FORCE EVALUATION:

ARPC/PB recommends denial for promotion to colonel with a DOR as would have been effective from theCY12 Colonel Line and Nonline (PR) Promotion Selection Board.  All actions directed by the Board in BC-2012-03153 were completed.  This included removing all adverse documentation from his record and updating IDT points.  The applicant on 15 Jun 15 was also given SSB consideration in lieu of the CY12 Colonel Line and Nonline (PR) Promotion Selection Board but was not selected.

The behavior of the applicant’s unit in 2015 does not impact consideration by the SSB for the CY12 Colonel Line and Nonline (PR) Promotion Selection Board.  SSBs are held in historical context, nothing in his record that happened after the original board date of 15 Oct 12 was considered.  There is no evidence to provide the SSB acted contrary to law or regulation or that his record contained errors.

There are no adverse documents in his OSR for the period Jan to Dec 15; therefore, there are no adverse documents to remove.  His OSR contains his performance reports, to include a performance recommendation as applicable to the specific board, decorations and a one-page summary of data pulled from the military personnel data system (MILPDS) generated for each board.  There was no information added to the OSR, adverse or otherwise, and there is no information regarding revoked telecommuting privileges in his OSR.  The complete advisory is at Exhibit D.

AFPC/DP2SSM recommends granting removal of the LOC dated 6 Aug 15.  The issuing authority, GS-12 civilian rater, was not serving in a grade equal to or higher than the ratee at the time the LOC was issued.  AFI 36-2406, states a civilian rater of a military officer must be a civilian serving in grade equal to or higher than the ratee.

A LOC is optional to be filed in a UIF and no AF Form 1058, Unfavorable Information File (UIF), was found to determine if the LOC was filed within a UIF.  Should the Board grant the request for removal of the LOC, it should be removed from his personnel information file (PIF) within his unit.  The complete advisory is at Exhibit E.

AFRC/A1K recommends disapproval for IDT points withheld for all submissions made for duty performed but denied due to no telecommute agreement being in-place.  His leadership stated he was not authorized points because he did not have a telecommute agreement on file.  Per AFI 36-2254v3, Reserve Personnel telecommuting/Advance Distributed Learning (ADL), a written agreement signed by all parties prior to engaging in the work is required.

There are no feedbacks or UIF to be removed.  Per AFI 36-2406, the airman comprehensive assessment (ACA) notice and worksheet are required to be processed with a performance report; however, it is not made a matter of official record.  The mid-term feedback is also not a part of his official record.  Therefore, there are no feedbacks to remove.  Per phone conversation with his unit, a UIF was never established on the applicant.  Therefore, there is no UIF to remove.  The complete advisory is at Exhibit F.

The AFBCMR Psychiatric Consultant recommends denial for the petition to alter his medical record.  It should be clearly understood that medical/psychiatric notes are not removed from the record except by the physician who wrote the notes and only when there was an error.  Additionally, he has no psychiatric notes in the AHLTA system.  All of his care was done by the Department of Veterans Affairs (DVA).  Consequently, the DVA has control over those notes.  The complete advisory is at Exhibit G.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 30 Aug 18 for comment (Exhibit H).  In a rebuttal response dated 28 Sep 18, counsel states the spacing in the redacted Exhibit F, BCMR Mental Health Advisor’s evaluation indicates some facts and or discussion sections were also redacted and they are unable to verify if the memorandum was a draft or was signed.  The applicant is concerned what notes may be in his mental health record.  The Board should direct the applicant’s medical record be cleared of all mental health notes and he requests an unredacted copy of the Memorandum for Record and the 14 Jun 18 mental health advisory.

The official and unofficial and mid-term feedbacks should be removed from his record, along with the LOC.  If the Board agrees the assignment of a GS-12 rater was improper and illegitimate, the Board should consider his rater had no interest in helping him with his Meritorious Service Medal (MSM) and promotion recommendation form (PRF).

The applicant was never asked to sign a telecommute agreement in any of his prior Reserve units.  He had no idea it was a prerequisite to performing IDT hours.  The unit provided him with a laundry list of required items but it did not include a telework agreement.  No one disputes the applicant performed the duty that he put in his submission, nor do they dispute the duty would be point eligible, but for the telecommute agreement signature.

The Board should disregard the ARPC evaluation, which was written over a year and a half ago.  The applicant is satisfied the SSB gave him a fair consideration but his records demonstrate there was a shameful effort on the part of officers and civilians to derail any opportunity for him to advance his career.  The only fair thing to do is to give him the benefit of doubt and order his promotion.  The applicant’s complete submission is at Exhibit I.  

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  Sufficient relevant evidence has been presented to demonstrate an injustice or error regarding part, but not all of his requests.  The applicant contends he was reprised against; however, we find no evidence this is the case.  On 19 Feb 16, CAP-USAF/IG found no evidence of reprisal under 10 U.S.C. 1034 and closed his case.  Although there was no reprisal, the Board concludes counsel provides sufficient evidence to show malice intent by the applicant’s supervisor.  Further, the assignment of a GS-12 rater given the applicant’s grade of lieutenant colonel was incorrect per AFI 36-2406, which requires a civilian rater of a military officer to be in a grade equal to or higher than the ratee.  In view of this, we agree with AFPC/DP2SSM that his LOC dated 6 Aug 15 be removed from his record.  With respect to the request for award of ADT and IDT points, AFRC/A1K recommends he be awarded 8 IDT points for Aug 15, for his time spent with his ADC but recommends denial for award of any other points due to not having a telework agreement on file as required by AFI 36-2254v3.  However, the evidence substantiates the applicant was inappropriate deprived from the opportunity to perform duty.  Accordingly, in the interest of justice, we recommend the applicant be awarded 10 paid IDT points for each month from 1 Mar 15 to 15 Sep 15 (70 points total).

4.  Counsel requests the negative documents in the applicant’s record and OSR, to include feedback forms, UIF, revocation of telework agreement and security clearance be removed.  However, these documents are not in his records; therefore, there is nothing for the Board to remove.  With respect to the request for removal of mental health records, as pointed out by the BCMR Psychiatric Advisor, mental health records are not removed except by the physician who wrote the notes and only if there was an error.  In view of this, the Board denies the request for removal of any mental health record.  Counsel, in the rebuttal response, also requests a copy of the unredacted Psychiatric Advisor’s evaluation be provided noting spacing errors and that facts or discussion may be missing, or that they were provided a draft copy.  A comparison of the signed advisory and the copy provided reflect the only information redacted was the signature and signature block, although there are administrative formatting errors.  Redacting the names of mental health workers is intended to protect them and is consistent with the policy of other federal agencies, to include the BCMR.  Therefore, we are unable to provide a copy of the unredacted mental health advisory.  Given the inappropriate assignment of his supervisor, counsel requests the Board assist the applicant with award of an MSM.  However, similar to the denial for award of an MSM in his earlier case, no evidence was provided to support he was recommended for an MSM.  Further, the award of a decoration upon completion of an assignment or on retirement is not automatic.  While the applicant was disadvantaged, the Board cannot attest to the quality of his service and therefore do not recommend he be awarded an MSM.  Counsel also requests the Board direct the applicant’s promotion to colonel.  However, this Board, which serves on behalf of the Secretary of the Air Force, is without authority to direct a promotion of an officers and this authority remains with the Secretary of Defense and the President of the United States.  Therefore, the Board recommends correcting the applicant’s records to the extent as indicated below.

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 the Board’s understanding of the issues involved.  

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 was awarded 10 additional paid IDT points for each month from 1 Mar 15 to 15 
Sep 15 (70 points total).  

b.	 His LOC dated 6 Aug 15 be void and removed from his record.

However, regarding the remainder of the applicant’s request, the Board recommends the applicant be informed the evidence did not demonstrate material error or injustice and the application could only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-03927 in Executive Session on 9 and 29 Oct 18:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted to correct the record.  The panel considered the following in Docket Number BC-2016-03927:

Exhibit A:	 Application, DD form 149, w/atchs, dated 25 Sep 16.
Exhibit B:	 Documentary evidence, including relevant excerpts from official records.
Exhibit C:	 Record of Proceedings from prior BCMR cases. 
Exhibit D:	 Advisory opinion, ARPC/PB, dated 14 Feb 17.  
Exhibit E:  Advisory opinion, AFPC/DP2SSM, dated 24 Oct 17.  
Exhibit F:   Advisory opinion, AFRC/A1KK, dated 1 Mar 18.  
Exhibit G:	 Advisory opinion, Psychological Advisor, dated 14 Jun 18.  
Exhibit H:  Notification of Advisory, SAF/MRBC to applicant, dated 30 Aug 18.  
Exhibit I:   Counsel’s response, w/atchs, dated 28 Sep 18.  
 
Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.