RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-01522 COUNSEL: XXX HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: The following documents be declared void and removed from his records: 1. AF Form 911, Enlisted Performance Report (MSgt thru CMSgt) covering the period 16 Jan 09 through 15 Jan 10. 2. AF IMT 174, Record of Counseling, dated 18 May 10. 3. DA Form 4856, Developmental Counseling Form, dated 26 May 10. 4. AF IMT 174, Record of Counseling, dated 3 Jun 10. 5. AF Form 469, Duty Limiting Condition Report, dated 27 Jul 10. 6. DA Form 3349, Physical Profile, dated 27 Jul 10. 7. Physician’s Counseling Notes, dated Aug 10 [sic]. ________________________________________________________________ APPLICANT CONTENDS THAT: He has been the victim of reprisal in violation of 10 USC 1034 for making protected communications. Specifically: 1. The Commander of the Army National Guard (ARNG) unit to which he is assigned referred him for an improper mental health evaluation (IMHE) in reprisal for making protected communications to members of his chain of command. The Commander and unit medical officer violated the MHE procedural requirements of DoD Directive (DODD) 6490.1, Mental Health Evaluations of Members of the Armed Forces, and DoD Instruction (DODI) 6490.4, Requirements for Mental Health Evaluations of Members of the Armed Forces. 2. The Deputy Commander of the ARNG unit to which he is assigned restricted the applicant from communicating with a Member of Congress and provided false statements during an official investigation. 3. Unfavorable information was unjustly entered into his official personnel records. The Department of Defense Inspector General (DOD/IG), in DOD/IG Report of Whistleblower Reprisal Investigation, dated 16 Feb 12, substantiated all three of the applicant’s allegations and substantiated reprisal against the applicant. In support of his request, the applicant provides copies of the DOD/IG Report of Whistleblower Reprisal Investigation with transmittal letter, and copies of the contested documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently a Master Sergeant (E-7), Active Guard Reserve (AGR), Montana Air National Guard (MTANG), and during the period in question was working under Montana Army National Guard (MTARNG) supervision at the Joint Force Headquarters (JFHQ), Montana National Guard (MTNG). On 7 Mar 10, the applicant informed his JFHQ leadership about a Nov 09 government vehicle accident involving potential alcohol use by the driver and assistant driver. On or about 11 May 10, the applicant informed the JFHQ purchasing office personnel of an alleged improper use of his unit’s government purchase card. On 18 May 10, the applicant was issued a counseling statement citing his failure to accomplish his fitness assessment (FA) in accordance with previous direction to do so. He was also instructed in writing to “utilize the chain of command in all circumstances except when utilizing the IG or the Chaplain” regarding any issues that related to his official duties. On 26 May 10, the applicant was issued a counseling statement citing him for failure to answer his government cellular phone. On 28 May 10, the applicant filed a complaint with the JFHQ/IG alleging that on 18 May 10 he received written counseling in reprisal for reporting the aforementioned communications on 7 Mar 10 and 11 May 10. On 3 Jun 10, the applicant was referred by his leadership for a Mental Health Evaluation (MHE). On 6 Jun 10, the applicant received an AF IMT 174, Record of Individual Counseling, for departing from group Physical Training (PT) early. On 21 Jul 10, the applicant filed a complaint with the JFHQ/IG alleging that he was referred for a MHE in reprisal for his having contacted them on 28 May 10. On 27 Jul 10, the applicant was provided a DA Form 3349, Physical Profile, limiting his duty by restricting him from assignment to a hot zone pending evaluation by behavioral health. On 14 Feb 11, the applicant was furnished the contested EPR, rendered for the period 16 Jan 09 through 15 Jan 10. On 16 Feb 12, DoD/IG, Director, Whistleblower Reprisal Investigations, notified the applicant of their finding that he was referred for the MHE in reprisal for his protected communications in violation of 10 USC 1034 and the MHE referral was not carried out in accordance with the procedural requirements of DODD 6490.1 and DoDI 6490.4. In addition, the written guidance he received on 28 May 10 to restrict his communications to his chain of command failed to include Members of Congress as an exception, thus constituting restriction in violation of Title 10 USC 1034. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFMOA/SGAT recommends approval, indicating there is evidence of an error or injustice. The applicant requests the removal of all documents related to the IMHE. The available documents from the DoD/IG investigative report confirm he was referred for an IMHE in reprisal and appropriate procedures had not been followed. Based on the documentation in support of the applicant’s claim, the Board should approve the request to remove the notes for the 3 Jun 09 counseling session, the DA Form 3349, and the AF Form 469. As the applicant’s remaining requests are related to personnel actions, any recommendation must be deferred to the appropriate OPR. The complete AFMOA/SGAT evaluation is at Exhibit C. NGB/A1PS recommends partial approval indicating there is evidence of an error or injustice. As it is clear the member’s rights were violated, the notes dated Aug 10 [sic] recorded by Capt A-, DA Form 3349, and AF Form 469 should be removed from the applicant’s records. However, recommend the EPR for the period of 16 Jan 09 through 15 Jan 10 remain in the applicant’s records because it does not mention the members IMHE and does not appear to be related to the IMHE. Recommend the DA Form 4856 (developmental counseling) also remain in the member’s record because it does not show the IMHE violation and appears to be before the IMHE. The applicant did not provide any documentation to show the performance report and developmental counseling were “tainted.” The complete NGB/A1PS evaluation, with attachment, is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reiterates that all of the contested actions were tainted in reprisal for his protected communications. In addition, he provides further detail on each of the incidents which were investigated by the JFHQ/IG and DoD/IG and were the basis of the DoD/IG report. In addition, he submits significant documentation in support of each contention. A complete copy of the applicant’s response, with attachments, is at Exhibit F. On 14 Jul 12, the applicant submitted another expanded statement in which he again reiterates his rationale for requesting the identified documents be removed from his records. He believes his leadership was trying to entrap him in order to provide themselves with sufficient supporting documentation to write a referral EPR in Jan 11. A complete copy of the applicant’s additional response, with attachments, is at Exhibit G. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant contends he was the victim of reprisal in violation of 10 USC 1034 in response to making protected communications. After a thorough review of the evidence of record and the applicant’s complete submission, to include his responses to the advisory opinions rendered in this case, we agree. In this respect, we note the DOD/IG report, dated 16 Feb 12, indicates the applicant was the victim of an unfavorable personnel action, specifically, the referral for a mental health evaluation (MHE), in reprisal for making protected communications to officials within his chain of command and was improperly restricted from communicating with members of Congress, both in violation of 10 USC 1034. Based upon these findings, we agree with Air Force offices of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion that any documents related to the MHE referral (e.g. physicians notes, DA Form 3349, AF Form 469, and AF IMT 174) should be declared void and removed from his records. As for the applicant’s remaining requests, we note that DoD/IG did not make a specific finding with respect to the contested counseling statements and enlisted performance report (EPR); however, based on our own independent review and notwithstanding the comments of NGB/A1PS indicating the counseling statements and EPR do not appear to be directly related to the primary reprisal activity, we believe the preponderance of evidence indicates that it just as likely as not that these actions were influenced and/or motivated by this substantiated reprisal motive. In this respect, we note the counseling statements were issued to the applicant in quick succession and within very close proximity to his protected communications in what appears to be an attempt by his leadership to build a record of substandard performance. As for the contested EPR, while it was rendered for the period closing 15 Jan 10, months before the applicant’s first protected communication; it was not concluded or presented to the applicant until well after the events in question. Therefore, given the evidence before us and in light of the applicant’s otherwise exemplary service, we believe reasonable doubt has been established that the counseling statements and EPR were rendered in good faith or are accurate descriptions of the applicant’s duty performance. As such, we elect to resolve any doubt regarding this issue in the applicant’s favor. Therefore, we recommend the applicant’s records be corrected as indicated below. 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. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that the following documents be declared void and removed from his records. a. AF Form 911, Enlisted Performance Report (MSgt thru CMSgt), rendered for the period 16 Jan 09 through 15 Jan 10. b. AF IMT 174, Record of Counseling, dated 18 May 10. c. DA Form 4856, Developmental Counseling Form, dated 26 May 10. d. AF IMT 174, Record of Counseling, dated 3 Jun 10. e. AF Form 469, Duty Limiting Condition Report, dated 27 Jul 10. f. DA Form 3349, Physical Profile, dated 27 Jul 10. g. Physician’s Counseling Notes, dated Aug 10 [sic]. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-01522 in Executive Session on 16 Aug 12, 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 12 Mar 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFMOA/SGAT, dated 11 May 12. Exhibit D. Letter, NGB/A1PS, dated 4 Jun 12. Exhibit E. Letter, AFBCMR, dated 27 Jul 12. Exhibit F. Letter, Applicant, dated 25 Jun 12. Exhibit G. Letter, Applicant, dated 14 Jul 12. Panel Chair