RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00720 COUNSEL: NONE HEARING DESIRED: NOT INDICATED _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Enlisted Performance Report (EPR) for the period ending 13 Oct 05 be voided and removed from his records. 2. His line number for promotion to master sergeant (E-7) be reinstated and he be granted other relief as appropriate. 3. He be awarded the Air Force Commendation Medal (AFCM). 4. A flag be flown in honor of his service. _________________________________________________________________ APPLICANT CONTENDS THAT: The applicant states he received unfair treatment when he attempted to file formal investigations, specifically; his EPR was marked below standard. The applicant provides an 8-page statement, with attachments, making the following key contentions: 1. The IG and EEO offices along with the 62nd Medical Group, McChord Air Force Base, Washington, ignored his requests, which was in direct violation of the governing regulation and the No Fear Act of 2003. He believes that in all of his attempts to bring formal charges against his leadership for dereliction, reprisal, and unprofessional behavior, that he became an easy target of hearsay, harassment, and discrimination. There was a personality conflict between him and his rater. 2. Two other people wrote letters of support to show that his leadership did not take the proper actions to correct his rater’s behavior. His request for a change of rater was denied and the personality conflict continued. 3. The documents he provides clearly detail the “root cause” of his behavior during his evaluation between Oct 04 and Oct 05 was influenced by prescription drugs. He was not properly diagnosed until 24 Jul 06. His profile clearly indicates that he was unable to stand longer than 10 minutes. He believes because he was on trial medication that the side effects may have been the reason he had difficulty remembering or thinking, confusion, abnormal thoughts or dreams, joint pain, as noted in the Letters of Counseling (LOC) and Letter of Reprimand (LOR) that were presented by his rater between 28 Oct and 4 Nov 04; he also received an Article 15 for an unrelated incident and after his promotion to master sergeant was removed. 4. He provides his profiles from 2005 and 2007 to show the contrast in his treatment once he was diagnosed with a herniated disc and pinched nerve root in his spine. His rater gave him a 20 inch stool to sit on to perform his duties, which was in violation of his profile. He believes that if his profile had been accomplished with the words above when he was first placed on a profile none of this would have happened. He asks for this injustice to be corrected because he is not lazy and his records subsequently have proven this. In the remaining pages of his statement the applicant gives a detailed account of what took place leading to the actions he is contesting. In support of his request, the applicant provides a personal statement, excerpts from his medical records, letters of support, and other documentation associated with his request. His complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant retired from the Regular Air Force on 30 Jun 09 in the grade of technical sergeant. He served on active duty for 20 years and 3 days. The following complaints were filed by the applicant with the Air Mobility Command Inspector General (AMC/IG): 1. Allegation One: “On or about (O/A) 15 June 2005, the commander, 62nd Medical Support Squadron (62 MDSS/CC) withheld his promotion in reprisal for a protected communication, in violation of Title 10, United States Code (U.S.C.), Section 1034.” 2. Allegation Two: “O/A 19 October 2005, the 62 MDSS/CC rendered a referral Enlisted Performance Report (EPR) on the applicant in reprisal for a protected communication, in violation of Title 10 U.S.C., Section 1034.” 3. Allegation Three: “O/A 19 October 2005, the 62 MDSS TRICARE Operations and Administration Flight Commander (62 MDSS/SGST) rendered a referral EPR on the applicant in reprisal for a protected communication, in violation of Title 10 U.S.C., Section 1034.” 4. Allegation Four: “O/A 19 October 2005, the applicant’s supervisor rendered a referral EPR on him in reprisal for a protected communication, in violation of Title 10 U.S.C., Section 1034.” Upon review of the applicant’s complaints and evidence, the 62 AW/IG concluded there was insufficient justification to conduct an investigation and recommended the applicant’s allegations be dismissed. Additionally, both AMC/IGQ and SAF/IGQ reviewed the report and concurred that the allegations should be dismissed. The applicant also filed a complaint with the Equal Employment Opportunity (EEO) office; however, his case was dismissed. The applicant received an Article 15 for disobeying a lawful order to complete Anti-terrorism training and wrongfully failing to complete the training by the prescribed time. The applicant did file an appeal through the Evaluation Reports Appeals Board (ERAB); however, the ERAB was not convinced the original report was unjust or wrong and denied his request. The following is a resume of his EPR ratings, commencing with the report closing 26 Oct 07: RATING PERIOD PROMOTION RECOMMENDATION 26 Oct 07 5 20 Dec 06 5 20 Jun 06 4 * 13 Oct 05 2 13 Oct 04 5 * Contested Report Under separate cover, the applicant requested assistance from Senator Murray on 19 Jan 11 in support of his appeal to remove the contested EPR; to be awarded the AFCM; have his promotion to master sergeant reinstated, and have a flag flown in his honor. The AFCM criterion: The AFCM is awarded to members of the Armed Forces of the United States who, while serving in any capacity with the Air Force after 25 Mar 58, shall have distinguished themselves by meritorious achievement and service. The degree of merit must be distinctive, though not involve the voluntary risk of life required for the Soldier’s Medal (or the Airman’s Medal now authorized for the Air Force). _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial. The application is untimely. Despite his allegations, the applicant has not provided compelling evidence from any competent medical authority to substantiate his claims of being unfit for duty due to prescribed medications or any diagnosed medical conditions he may have been suffering at the time. His profile from 26 Apr 05 through 1 Aug 05 limits the activities he was able to perform at work. However, he fails to provide any documentation that his actual duties performed during the contested rating period violated his medical profile. Further, the applicant alleged that in his attempts to bring formal charges against his leadership for dereliction, reprisal, and unprofessional behavior, he became an easy target of hearsay, harassment, and discrimination. He asserts he was victimized in direct violation of the No Fear Act of 2003 and because he went to the IG and EEO that led to the markdowns and referral of his 2006 EPR. However, despite these allegations, he does not provide any evidence of a completed IG, MEO, or other formal investigation from credible sources into any of these matters. The applicant provides memorandums from three individuals; however, none of the individuals were in his rating chain and did not prepare the contested report. The applicant has not provided factual, specific, and substantiated information that is from credible officials and is based on firsthand observation or knowledge. Furthermore, the applicant does not provide any statements from the evaluators during the contested period; therefore, DPSID can only conclude the EPR is accurate as written. The complete DPSID evaluation is at Exhibit B. AFPC/DPSIDR recommends denial. The applicant believes he should have received an AFCM for his “prolonged outstanding service of 20 years.” However, without official documentation that verifies the applicant was considered for award of the AFCM, and based on the current merits of this case, DPSIDR is unable to find an injustice exists with regard to the applicant not being awarded the AFCM. The complete DPSIDR evaluation is at Exhibit C. AFPC/DPSOE defers to the recommendation of DPSID regarding the applicant’s request for removal of the contested EPR. The first time the contested report would normally have been considered in the promotion process was cycle 06E7; however, the fact that the EPR was a referral report rendered the applicant ineligible for promotion consideration in accordance with the governing regulation. The complete DPSOE evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: He reiterates his original contentions in a 12-page rebuttal; however, the applicant makes the following key contentions and provides it as new evidence: 1. The application was not submitted in a timely manner due to attempts of bringing formal charges against his rater, additional rater, and commander. With regard to his request to have his EPR removed from his records, he provides six facts why the report should be voided: a. His rights were violated when he was not allowed to receive medical care. b. His civil rights were violated due to multiple errors in how his Article 15 punishment was administered. He was influenced by neurological drugs for migraine headaches, pain and ADHD which clouded his judgment and made it unclear what he was signing on 28 Apr 05. c. Many errors occurred in how the LOC punishment was administered. d. His referral EPR was subjective and did not objectively report his performance accurately since it was negatively influenced by a junior NCO’s dereliction. e. He never received feedback in accordance with the governing regulation. f. There were numerous delayed communications from his rater. The rater’s documented unprofessional behavior indicates the rater hindered the mission by having “personality conflicts” with him that affected his training and caused his concern to write a letter to his Congressman to remove him from the “Hostile Work Environment.” 2. Many medical documents indicate he was diagnosed with migraine headaches. He was given trial medications for ADHD; narcotics that caused him to “not feel like himself” along with pain medications for his herniated disc, which resulted in “cruel and unusual punishment” by being ignored by his rater. 3. He provides information from the IG and EEO offices, although due to the time that has passed his case files were not archived, but destroyed after the two-year point. The applicant’s complete submission, with attachments, is at Exhibit F. _________________________________________________________________ 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 error or injustice. After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded that the contested EPR should be removed, his line number for promotion to master sergeant be reinstated and that he be awarded the AFCM. The documents provided with the applicant’s submission do not, in our opinion, support a finding that the evaluators were unable to render unbiased evaluations of the applicant’s performance or that the ratings on the contested report were based on factors other than applicant’s duty performance during the contested rating period. The applicant asserts he suffered reprisal due to protected communications he made to the IG and EEO office; however, we find the evidence submitted is insufficient to support the applicant’s contentions and further note that multiple levels of review by the IG upheld an initial IG finding that there was insufficient justification to investigate the complaints the applicant alleged. Other than the applicant’s own assertions, we see no evidence that his raters abused their discretionary authority, that the ratings were based on inappropriate considerations, or that the report is technically flawed. Based on our finding in regard to the contested EPR, we find no basis to reinstate the applicant’s line number to master sergeant. Regarding the applicant’s request for award of the AFCM, we are in agreement with recommendation of AFPC/DPSIDR and adopt its rationale for our determination the applicant has not been the victim of error or injustice regarding award of the AFCM. Lastly, the applicant’s request for a flag to be flown in his honor is outside the purview of the board. 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. 5. The applicant alleges he has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC 1034). As noted above, the IG determined there was insufficient justification to investigate the applicant’s complaints. Based on our own review of the available evidence, we do not find that it supports that the applicant was the victim of reprisal. Therefore, we find no basis to grant the relief sought by the applicant on the basis of reprisal. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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-2011-00720 in Executive Session on 2 Feb 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 30 Mar 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 22 Jul 11. Exhibit D. Letter, AFPC/DPSIDR, dated 19 Aug 11. Exhibit E. Letter, AFPC/DPSOE, dated 2 Sep 11. Exhibit F. Letter, SAF/MRBR, dated 16 Sep 11. Exhibit G. Letter, Applicant, dated 10 Oct 11, w/atchs. Panel Chair