ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-00929 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: He receive the following relief based on being the victim of a substantiated case of reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, dated 23 Jul 07, and Title 10, United States Code, Section 1034: 1.  He be directly promoted to the grade of colonel and be retired in the grade of colonel. 2.  He be financially compensated or credited with additional years of service due to the fact he was left in the reprisal situation, and had no recourse but to retire early. ________________________________________________________________ RESUME OF CASE: In an application, dated 7 Mar 12, the applicant requested the following relief: 1. He receive appropriate relief based on the standards outlined in the Government Accountability Office (GAO) Report to the Senate Judiciary Committee, dated February 2012. 2. His AF Forms 707, Officer Performance Reports (OPRs), rendered for the periods of 11 May 09 through 10 May 10, 11 May 10 through 5 Dec 10, and 6 Dec 10 through 5 Dec 11, be corrected to reflect the Agency Commander as the additional rater and the reports reflect appropriate stratification or, in the alternative, the reports be acknowledged as invalid. 3. His AF Forms 709, Promotion Recommendation Forms (PRFs), viewed by the P0610C and P0611B Colonel Central Selection Boards (CSBs) be corrected to reflect appropriate stratification. 4. He be reconsidered for Senior Development Education (SDE). 5. He be given Special Selection Board (SSB) consideration for promotion to the grade of colonel for the P0610C and P0611B CSBs with the corrected reports or in the alternative be directly promoted to the grade of colonel. 6. His retirement grade be changed to colonel (O-6) if the corrections he requests are partially or wholly substantiated and would have affected past or future boards. On 23 Aug 12, the Board considered the applicant’s requests and recommended the following partial-relief: 1.  The Assignment History in the Officer Selection Brief (OSB) prepared for the P0611B CSB be amended to delete the entry “Test & Evaluation Branch Chief” effective 6 Dec 10. 2.  The AF Form 707, OPR, rendered for the period 6 Dec 10 thru 5 Dec 11 be declared void and removed from his record. 3.  The AF Form 709, PRF, viewed by the CY11B Lieutenant Colonel CSB be declared void and substituted with the PRF viewed by the P0610C Lieutenant Colonel CSB. 4.  It was further recommended the applicant’s record be considered for promotion to the grade of colonel by a SSB for the P0611B Colonel CSB with the above corrections to his record. On 18 Sep 12, the Board’s recommendation was approved. In the letter of notification of the Board’s decision, the applicant was advised of his right to appeal the Board’s findings to the Under Secretary of Defense for Personnel and Readiness (OUSD P&R) within 90 days of the Board’s decision. For an accounting of the facts and circumstances surrounding the applicant’s appeal and the rationale for the Board’s earlier decision, see the Record of Proceedings at Exhibit I. In a memorandum, dated 30 Oct 12, (Exhibit J), which was attached to an email, dated 30 Oct 12, sent to the SECAF, the applicant requests reconsideration of the relief granted by the Board. The applicant states that he again asks for “just relief” before he exercises his right to appeal to the “SecDef.” The applicant indicates that he continues to be concerned that “pertinent information, including congressional inquiry information” has been excluded from the Board’s analysis in determining a finding and recommendation. The applicant requests the Board specifically indicate why it excluded information he submitted for analysis so he may factor this into his appeal to the DoD. By memorandum, dated 4 Dec 12, (Exhibit K) the applicant was notified that his case would be processed back to the Board for reconsideration. The memorandum contained seven attachments (Exhibit J) and the applicant was asked to review and confirm in writing that these attachments constituted the additional evidence he wanted added to his case for the Board’s consideration. The seven attachments sent are as follows: 1.  An email, dated 23 Nov 10, advising the applicant that the Air Force ISR Agency (AFISRA) Director of Staff (DS) was not available to meet with the applicant that morning and the appointment had been adjusted for him to meet with the Deputy Director of Staff. 2.  Email string starting 29 Nov 12, with an inquiry from the DS to A7 functions asking whether the applicant possessed a “G” pass (a pass to park in the “G” lot). A response was sent asking the DS if the applicant required a “G” pass. The DS responded the applicant did not need one. 3.  Email to the applicant dated 2 Dec 12, Unauthorized Parking. The applicant was advised he did not meet the requirements for parking in the “G” lot and that he was using an outdated parking pass (grey). 4.  Email string regarding updates for an upcoming Unit Compliance Inspection (UCI), dated 19 May 11. By email to the DS, dated 5 Jul 11, the applicant expressed his concern regarding the tracking of ancillary training stats by A1. The DS responded to the applicant on 5 Jul 11 explaining his view of the tracking of ancillary training and advised the applicant he would be glad to sit down and discuss the issue further if the applicant desired. 5.  A memorandum from SAF/LL to Congressman XXXX regarding the allegation of reprisal against the applicant. The memorandum discusses the following four points:   a.  Advised the Congressman of the requirement in AFI 90301, Inspector General Complaints Resolution, to notify the Major Command Commander (or civilian equivalent) of the results of substantiated allegations for the purpose of taking command action. However, the memorandum went on to state that cases involving senior civilians were handled by the Executive Resources Board (ERB) and that upon completion of the applicant’s case, a letter was sent to the ERB asking them to initiate action and that the action was now complete.   b.  A discussion of the recognition by SAF/IG of the shortfall in the process in that a subject’s commander is not directly notified until the appointed individuals have completed reviewing appropriate disciplinary action. It noted as an example that the command chain is not in a position to timely assist the complainant. It noted that SAF/IG has worked with the SECAF General Council to change the notification procedures to the ERB and is now requesting the Vice Chief of Staff simultaneously notify the ERB and the subject’s command chain.   c.  The applicant’s request for a low/no cost PCS was denied by his supervisor, not the current AFISRA commander nor the former AFISRA commander, nor the DS. It noted the decision to deny the PCS was due to the fact that AFISRA was very short on field grade officers and the decision maker, a civilian deployed to Afghanistan at the time of the memorandum, could see no compelling reason to give up an officer in a good position to contribute to the mission.   d.  Advised that due to the pending disciplinary process, it would be a violation of due process and the Privacy Act to disclose to anyone the process or the outcome of any disciplinary action. It went on to advise that privacy laws constrained the Air Force from describing to the applicant what action was taken in response to the substantiated allegation of reprisal. 6.  Email string starting on 13 Jul 12, from the applicant to the SECAF complaining about the AFBCMR’s handling of his application. 7.  An email, dated 30 Oct 12, sent to the SECAF, from the applicant requesting reconsideration of the relief granted by the Board. In a response dated 18 Jul 12, the SECAF’s Military Assistant advised the applicant his concerns had been forwarded to SAF/MRB for response. In an email, dated 16 Oct 12, to the SECAF, the applicant stated that he had not yet received any advice from the Air Force in regards to various questions he asked of his chain-of-command (AFISRA/CC), SAF/IG, or SAF/MRB. At the time of this email, the applicant had received the Board’s decision in his case and he raised the following issues:   a.  The Board excluded various additional discrepancies and questionable actions by the Air Force in its decision analysis.   b.  The relief granted by the Board may have been reasonable a year ago when he was on active duty, but not in light of his retiring and how AFISRA and the Air Force mishandled his situation and case.   c.  AFISRA denied his request for a no cost, local PCS as a way out of the reprisal situation, which caused him to then apply for retirement to be effective at the earliest date possible, utilizing most of his saved leave.   d.  SAF/IG failed to notify the AFISRA commander and follow its own notification timelines as mandated in its regulations, which left him without guidance after he notified his commander of the substantiated reprisal concern, subsequent reprisal concern, and the fact his no cost PCS had been denied.   e.  The AFISRA commander “purposely” did not meet with him for five months, despite his documented multiple efforts to get scheduled to see him. He was not seen until one week before his retirement.   f.  When he asked his local Congressman to find out why he was not being provided any guidance, the Air Force submitted responses that were both false and what appeared to “purposefully” be incomplete and misleading.   g.  He petitioned the Air Force to review his records for relief and was treated as an adversary and informed he was “not that stellar” an officer as they looked to discredit his petition.   h.  He did not receive any guidance after requesting it multiple times and as told he would by the SECAF Military Assistant.   i.  The Air Force did not correct the previous commander’s “illogical and detrimental” rating scheme affecting multiple individuals (for 16 month period despite repeated protests by multiple individuals) used only for the A2 staff as compared to the remainder of the numbered staff. 7.  The applicant’s memorandum dated 30 Oct 12, as discussed above, makes the following points:   a.  Regarding the Board’s comments about a direct promotion, the applicant states, 1) he believes he will not receive “fair and equitable consideration” in an SSB since they will be utilizing information that excludes the pertinent information of the Air Force having placed him in a reprisal situation, continued harassment, and having essentially forced his hand into an earlier retirement for which he ended his Air War studies; and 2) if he is promoted to the grade of colonel after the date of his retirement, it will avoid additional compensation and he believes justice will be done.   b.  He was unaware during the reprisal investigation of who specifically denied his request for a no-cost, local PCS (which forced him to stay in the reprisal situation another year until he retired). He notes the email discussed above regarding a parking pass and notes the DS sent it to various individuals. He believes this constitutes “poisoning of the water” and is a likely reason for why his no cost, local PCS was disapproved. He also notes an email forwarded by the DS to his new director after his move, which lead to him being issued a verbal reprimand. He believes the action by the DS constitutes continued harassment. The applicant notes he provided the email to the AFISRA commander and noted that he felt this constituted additional harassment. To his knowledge, the commander did not do anything. The applicant confirmed in a letter, dated 5 Dec 12, that the seven attachments constitute the items he would like the Board to review. The applicant also restated his “continued concern that the previous Board finding as the initial recommended finding excluded without comment previously submitted information in the final analysis utilized in the Board’s final decision.” ________________________________________________________________ AIR FORCE EVALUATION: SAF/IG was asked to comment on the appropriateness of the corrective actions made by the AFBCMR based on the substantiated reprisal allegation. The IG found the Board accurately addressed all issues raised, and where necessary, corrected the military records impacted by the reprisal actions taken against the applicant. The complete IG evaluation is at Exhibit L. The AFISRA commander prepared an advisory for informational purposes, providing a summary of events which are as follows: 1)  On 19 Oct 11, he first became aware of a substantiated reprisal filed by the applicant. Shortly thereafter, he contacted the AFISRA IG to determine who, if anyone, within the AFISRA had been informed of the substantiated complaint. He was informed by the IG that the notification had been sent by SAF/IG to the Assistant Deputy Chief of Staff for Intelligence, Surveillance and Reconnaissance for Headquarters, USAF (HAF/A2). He was told to hold off on any action taken on the matter until HAF and SAF/GC had completed their involvement with respect to the findings, the proposed punishment, and any appeal of the proposed punishment. The Assistant Deputy Chief of Staff for Intelligence, Surveillance and Reconnaissance for Headquarters, USAF (HAF/A2) was responsible to consider the findings and impose punishment as appropriate for the substantiated reprisal. He instructed his staff to let the applicant know that he would meet with him after SAF/GC had completed their involvement in the matter (including any appeal of the punishment). He was informed this had been done. 2)  He was informed by SAF/GC in early to middle Feb 12 that the resolution of the appeal of the proposed punishment was very near completion. Around the same time he was asked to provide any details he had to help prepare an Air Force response to a congressional inquiry. One item in particular, was the applicant’s request for a no-cost/low-cost reassignment. He was unaware of any details behind the reassignment request having arrived at the Agency in Jul 11, so he reached out to his predecessor as AFISRA/CC, the applicant’s direct supervisor and the former A5/8/9 civilian Director. Both were unaware of the reassignment request. The former A5/8/9 Director told him that he recalled the A5/8/9 directorate was very shorthanded on field grade officers at the time and the applicant was needed to contribute to the Directorate’s tasking and missions. 3)  In middle to late Feb 12, he was informed by SAF/GC that the subject’s appeal had been denied by the appellate authority, and that the punishment was upheld and remained unchanged. 4)  Near the end of Feb 12, he met with the applicant and informed him that the subject of the substantiated reprisal had been punished. He also mentioned to the applicant that he could apply to have his military records corrected if he felt they were in error based upon the effects of the substantiated reprisal allegation. 5)  Unfortunately, at this stage of the matter he did not see any actions the Agency could take to address in particular the no-cost/low-cost move requested by the applicant, inasmuch as he was to begin terminal leave in early Mar 12, with an effective date of retirement in Jun 12. He requested the AFISRA Staff Judge Advocate (SJA) review the materials provided by the Board and provide feedback concerning information that the Board may find helpful or useful for their consideration of this case. The following are the AFISRA commander’s recommendations: a.  He does not recommend the applicant be promoted to the grade of colonel outright: The lack of having AWC completed, not being a school select, and not having commanded a squadron militate against an outright promotion, in his opinion as his senior rater. 1) Completion of AWC is well within an officer’s ability and control. The memorandum from the SJA provides a detailed discussion and timeline concerning the progress made by the applicant beginning with his enrollment in the course in 2007. 2) He does not consider it a foregone conclusion that the applicant would have completed AWC in time for his IPZ board, his assertions to the contrary notwithstanding. From his perspective if AWC is incomplete at the time the PRF is being finalized it negatively impacts his recommendation. 3) Promotion statistics in the attached SJA memorandum highlight the likelihood of promotion if AWC is not completed. Even if AWC had been completed, records with a “Promote” recommendation for the IPZ board have around a 27 percent opportunity for selection. b.  If the Board finds some aspect of this case that merits granting relief, he recommends the Board consider allowing the applicant to return to active duty and provide him either 15 months or 12 months before he meets an 06 IPZ promotion board. Both options presume he returns to the same point in the AWC course curriculum on the “trigger” dates in 2011. These options also presume he will be assigned to a unit outside the AFISR Agency. 1) 15-Month Option: This uses the date the applicant submitted his retirement request to the date he would have met his IPZ board—had he chosen not to submit his retirement request but remain on active duty. He submitted his retirement request on 26 Jul 11. His IPZ board was held on 5 Nov 12. The PRF for the board was finalized on 21 Sep 12. 2) 12-Month Option: This uses the date the applicant provided him a copy of the SAF/IG ROI (which brought his attention for the first time that there was a substantiated reprisal complaint) to the date he would have met his IPZ board—had he chosen not to submit his retirement request but remain on active duty. He received a copy of the SAF/IG ROI from the applicant on 18 Oct 11. His IPZ board was held on 5 Nov 12. The PRF for this board was finalized on 21 Sep 12. c.  Either option provides the opportunity to: 1) Demonstrate beyond speculation that the applicant can finish AWC prior to his IPZ board within the same time constraints he faced on those dates in 2011, 2) Compete at the IPZ 06 board, generally thought to be the best opportunity for selection, 3) Have enough time on active duty to generate an OPR from a new organization as his top report for the IPZ board’s consideration, and 4) Have a different senior rater provide his promotion recommendation. The complete AFISRA/CC evaluation, with attachments, is at Exhibit M. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 23 Apr 13, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days. At the same time the applicant was also informed that his request for a Formal Hearing to consider his case was approved and tentatively scheduled for 1000 hours on 10 Jul 13 (Exhibit N). On 3 Jun 13, the applicant was advised that the AFBCMR staff had not received acknowledgement from him regarding the hearing date. He was also advised that the AFBCMR was moving forward and made plans to conduct the hearing on that date. On 5 Jul 13, via email, the applicant responded and essentially reiterated most of his earlier contentions and comments that a lot of the information provided was misleading and incomplete. The IG’s defense of his organization’s failure to ensure the board met its mandated suspense and the delay it caused was indeed relevant, as he was forced to sit in the reprisal billet for approximately an entire year, since his request for a no-cost PCS was denied, and an additional four months by their own accounting after their 45-day suspense was not met. This forced him to continue walking the same halls as his abuser and those additional directors that his abuser coordinated with in effecting the reprisal move. In the 5-page memorandum, the AFISRA commander uses one sentence to address the inaction on his part and why the applicant had to remain in the reprisal billet until retirement. He stated, “Unfortunately, at this stage in the matter that he did not see any actions the “Agency” could have taken to address in particular the no-cost move, inasmuch as he was about to begin terminal leave in early Mar 12. The commander essentially ignores all the other issues, and spends the remainder of his 5-page submission defending why he was waiting for the punishment board to finish their review, trying to justify why he should not receive relief. His argument for needing to wait is without merit, as the punishment board had no bearing upon normal advice and counsel that he could have provided. He could have at his own discretion as the AFISRA commander, moved him out of the reprisal billet into another more suitable opening even if it was only 4 plus months. He could have inquired as to whether an exception to policy could have been granted to allow the applicant to start terminal leave early. The applicant points-out that neither the AFISRA commander nor his staff judge advocate provide any comments relating specifically as to why, he the victim, should receive some “relief” from Air Force for the substantiated reprisal. The AFISRA staff judge advocate, on behalf of the AFISRA commander, spends nine full footnoted pages and 17 attachments discussing why he should not receive relief. The applicant’s complete response, with attachments, is at Exhibit O. ________________________________________________________________ APPLICANT'S APPEARANCE AT FORMAL HEARING: The following additional information was provided in response to specific inquiries by the Board members: a.  When asked about the specific relief he was seeking from the Board, he stated that what he originally put in his BCMR request he is no longer seeking, he does not believe a records correction at this point would be beneficial. He believes that the Air Force forced him out by keeping him in the reprisal situation, and making him walk the halls with the same individuals that reprised against him. He said that he would be willing to accept a separation bonus if that was possible. He said that he was not interested in coming back into the Air Force, that he was a GS-14 and has a nice job in Colorado Springs and would like to stay retired. b.  He noted that the relief previously granted, i.e., changes to his duty title, OPRs, PRFs, and a Special Selection Board came back with negative results. He emphasized that he had a zero percent chance of being promoted at an SSB and that a records correction is for someone who planned to stay in the Air Force. c.  The applicant stated that he was not trying to get his records corrected and felt that was his only option, thus why he asked for corrections to his OPRs and PRFs. The applicant’s complete sworn testimony and his responses to the Board's questions are contained in the Transcript of Proceedings at Exhibit F. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice to warrant the applicant’s direct promotion to the grade of colonel through the correction of records process. In this regard, the Board observes that officers compete for promotion under the whole person concept whereby many factors are carefully assessed by selection boards. An officer may be qualified for promotion but, in the judgment of a selection board vested with the discretionary authority to make the selections, may not be the best qualified of those available for the limited number of promotion vacancies. Therefore, in the absence of evidence that he would have been a selectee had he not been the victim of reprisal we find no basis to direct his promotion to colonel. Moreover, we believe that a duly constituted selection board applying the complete promotion criteria is in the most advantageous position to render this vital determination, and that its prerogative to do so should only be usurped under extraordinary circumstances. In the applicant’s case, based on the corrections to his records, he was provided such supplemental consideration by a Special Selection Board (SSB) and was not selected for promotion. In the absence of evidence the SSB process was flawed or that he was denied fair and equitable supplemental promotion consideration, we find no basis to disturb the decision of the SSB. Further, while it is uncontested the applicant is the victim of reprisal, this does not result in our inescapable conclusion that but for the reprisal action, he would have been selected for promotion to the grade of colonel, as he never completed Air War College – a prerequisite for promotion to the grade of colonel. That being said, the Board wishes to commend the applicant for his unwavering service to this country. The Board was moved by the professionalism and dedication shown by the applicant during his military career, which we believe was terminated early due to the ramifications of the substantiated reprisal and associated adverse personnel action. The Board feels that the actions of a few members at his former headquarters do not reflect the feelings of the Air Force about his accomplishments as an officer, the culmination of a highly successful career and his potential for continued service to his country. However, in view of the above and in the absence of evidence to the contrary, we find no basis upon which to recommend his direct promotion to colonel. 2.  Notwithstanding the above, we find sufficient relevant evidence has been presented to demonstrate the existence of an injustice. In this respect, it appears there were shortfalls in the SAF/IG notification process wherein the applicant’s chain-of-command was not directly notified of the results of the substantiated reprisal in a timely manner. Consequently, the applicant’s chain-of-command was not in a position to assist the applicant and he was forced to remain in the reprisal billet for approximately 14 months which ultimately ended his career earlier than expected. According to SAF/LL’s letter dated 27 Feb 12, SAF/IG recognized the shortfall in their process and has worked with SAF/GC to change the notification procedures to simultaneously notify the Executive Resources Board and the subject’s chain-of-command when an allegation is substantiated. We note the applicant previously requested to move out of the reprisal situation; however, his request was denied. The specific reason for the denial was due to the fact that AFISRA was short on field grade officers and the decision maker could see no compelling reason to give up an officer in a good position to contribute to the mission. Unfortunately, it appears this decision, when coupled with a lack of assistance from the applicant’s chain of command, was not in the overall best interest of the applicant or the Air Force. The applicant has indicated that at this point he felt he was only left with the option of ending his Air Force career. We believe the circumstances leading to his decision to retire rise to the level of an injustice. In considering the appropriate level of relief, we take note of the applicant’s stated position that he does not wish to return to active duty. While we, as stated above, do not believe the circumstances of this case support a direct promotion, we find it reasonable the applicant would have likely served on active duty for an additional period of time. Based on our interview of the applicant during his hearing, we believe that an additional 14-months of creditable service for retirement provides full and fitting relief on this point. Additionally, since we are advised this additional service will cause the applicant to incur a debt to the government, based on this service overlapping with his civilian employment and receipt of military retirement pay, we find it would further be in the interest of justice to provide relief that would avoid any debt. As such, we recommend his record be corrected to show that he applied for a waiver of all debts created as a result of the Board’s action to extend the applicant’s period of active service and his request was approved by competent authority, in accordance with 10 U.S.C. § 2774 and 5 U.S.C. § 5584. While our ability to craft relief that will make the applicant completely whole is limited by the very circumstances of his case, we believe overall our recommended corrective action provides him full and fitting relief. In view of the foregoing and in the interest of justice, we recommend his record be corrected to the extent indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a.  He was not relieved from active duty on 31 May 12 and retired for length of service on 1 Jun 12, but on that date he was continued on active duty. b On 31 Jul 13, he was relieved from active duty and retired effective 1 Aug 13. c. He applied for a waiver of all debts created as a result of the Board’s action to extend the applicant’s period of active service for the period noted above and his request was approved by competent authority, in accordance with 10 U.S.C. § 2774 and 5 U.S.C. § 5584.   ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-00929 during a Formal Hearing on 10 Jul 13 and 27 Sep 13, under the provisions of AFI 36-2603: , Panel Chair , Vice Chair , Member , Member , Member All members voted to correct the records, as recommended. The following documentary evidence pertaining to Docket Number BC-2012-00929 was considered: Exhibit I. Record of Proceedings, dated 18 Sep 12, w/atchs. Exhibit J. Letter, Applicant, dated 30 Oct 12. Exhibit K. Letter, AFBCMR, dated 4 Dec 12. Exhibit L. Memorandum, SAF/IG, dated 1 Apr 13 (withdrawn). Exhibit M. Memorandum, AFISRA/CC, dated 19 Apr 13. Exhibit N. Letter, SAF/MRBC, dated 23 Apr 13, w/atchs. Exhibit O. Electronic Mail, Applicant, dated 8 Jul 13. Exhibit P. Transcript of Proceedings, dated 5 Sep 13. Panel Chair