RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04795 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: She 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 USC 1034: 1. Her record be corrected to reflect that she was selected for the position of Director, Reserve Active Guard/Reserve (AGR) Management Office (REAMO) effective Jan 09. 2. She receive a new date of separation (DOS) of 31 Jan 14, or one year from the date of the Board’s decision with credited retirement and service points. 3. She receive all active duty back pay, leave, basic allowance for subsistence (BAS), basic allowance for housing (BAH) for the Washington, DC area and a DD Form 214, Certificate of Release or Discharge from Active Duty for having served in the Director, REAMO position from 1 Feb 10 to 1 Feb 14, or one year from the date of the Board’s decision. 4. She receive $1,000.00 for recoupment of gasoline and vehicle maintenance due to her geographic separation from her family. 6. She receive a direct promotion (without Special Selection Board (SSB) consideration) to the grade of brigadier general (BG) with an effective date of 1 Feb 11. 7. She be granted any and all other relief the Board and the Secretary of the Air Force (SAF) deem appropriate. ________________________________________________________________ APPLICANT CONTENDS THAT: In a 10-page statement the applicant presents the following major contentions: 1. Her application is the result of substantiated findings from an official Secretary of the Air Force Inspector General (SAF/IG) complaint she filed on 2 Sep 08. 2. In May 08, she submitted an application to be considered for the Director, REAMO position. The assignment to this position would have incurred an additional four years of active duty. The announcement required an Air Force Specialty Code (AFSC) of 37F4 (Personnel) and stated that AGR applications would be the only ones considered. She met every required qualification. 3. On 10 Jul 08, she was notified that an Air Reserve Technician (ART) who did not meet the advertised requirements had been selected. Among other things, the officer was not a personnelist. 4. She was informed the general officer charged with making the selection did not base his decision on the merits of the records but on personal prejudices against her. 5. The crux of her reprisal complaint was that she clearly should have been chosen as the Director, REAMO. Had she been given the opportunity to serve as the Director, REAMO and subsequently meet the Reserve Brigadier General Qualification Board (RBGQB), she likely would have been placed in a BG position. Furthermore, her record in the context of that period of time would have been very competitive for promotion to the grade of BG. Her official Air Force record as well as her colonel (Col) Promotion Recommendation Form (PRF) speaks for itself. She was the youngest line of the Air Force Col at the age of 39, when she pinned on Col in Feb 04. It stands to reason, that if her record was exceptional enough to advance her through the ranks that quickly, promotion to the grade of BG was surely a reasonable expectation. 6. Even though the evidence of reprisal was substantiated in her favor, she would be at a disadvantage if allowed to meet a SSB today. She would not have a PRF, an appropriate general officer ranking and many of the general officer board members would be familiar with her case and likely oppose selecting her for promotion. Her record cannot be reconstructed in such a manner so as to permit her to compete for promotion on a fair and equitable basis. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: In 2007, the applicant met an Air Reserve Board (ARB) and requested a two year extension of her 31 Jan 08 DOS. On 13 Aug 07, the applicant sent a letter to the AFRC/CC, stating in part that the ARB’s decision not to extend her was “flawed” and that the process violated Air Force Instructions and Title 10 USC. In Apr 08, AGR Vacancy Announcement 08-598H (Director, REAMO) was announced with a closing date of 28 May 08. On 23 May 08, the applicant submitted an application. In July 08, the Deputy AF/RE selected a logistics officer for the position. On 2 Sep 08, the applicant filed an IG complaint with the SAF/IG office IAW AFI 90-301, Inspector General Complaints Resolution. The applicant alleged that the Deputy AF/RE reprised against her by not selecting her for the position in violation of Title 10 USC 1034. On 1 Feb 10, the applicant retired in the grade of Col (0-6). On 13 Jul 10, the applicant was notified that the SAF/IG had substantiated her allegation of reprisal against the Deputy AF/RE, under the provision of Title 10, USC 1034. SAF/IG reviewed the ROI and approved its findings. In addition, the Department of Defense (DoD)/IG conducted a thorough review of the report and concurred with its findings that the Deputy AF/RE had reprised against her by not selecting her for the position of Director, REAMO in violation of Title 10 USC 1034. The remaining relevant facts pertaining to this case are contained in the evaluations prepared by the appropriate offices of the Air Force, which are contained at Exhibits B, C and F. _________________________________________________________________ AIR FORCE EVALUATION: AFRC/JA recommends denial. JA states that according to the ROI there were two AGRs that applied for the Director, REAMO position and that both were tied as the top candidates. The cover sheet that accompanied the AGR announcement provided that “if two or more AGRs apply, their applications are the only ones forwarded on the initial nomination package, regardless of the number of applicants that applied. Ten eligible candidates applied for the position. However, instead of sending only the AGR applicants, to the Deputy AF/RE for consideration, all 10 candidates were forwarded. The applicant met all the mandatory qualifications of the vacancy announcement and only lacked squadron command experience which the vacancy announcement listed as “highly desirable,” but not mandatory. The other AGR colonel met all the mandatory requirements, but he too, lacked the highly desirable command experience. Both applicants were tied as the #1 candidate. According to the ROI, the Deputy AF/RE engaged in numerous frank discussions about the candidates with members of his staff, and after these discussions he selected a non-AGR candidate. His rationale for not selecting the applicant was that he was “looking for someone with extensive AFR experience, staff experience at the headquarters and most importantly squadron commander experience.” According to the Deputy AF/RE the candidate selected was the most qualified for the position. Title 10 USC 1034b provides that “no person may take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal against a member of the armed forces for making or preparing” to make a protected communication. AGR members are not by law or policy guaranteed a right to serve beyond 20 years in the AFR. The AFR manages its AGRs through an ARB to review AGRs with an upcoming DOS biannually for continuation in the AGR program for career status beyond their 20 year active duty retirement date. The applicant’s records met an ARB in Mar 07. The results of that ARB were that her DOS remained at 31 Jan 08. The applicant appealed the denial of her AGR tour extension which the AFRC/CC denied. She asked for reconsideration and AFRC/CC subsequently granted her request thereby extending her AGR tour to 31 Jan 10. Before she retired on 1 Feb 10, she could have applied for another AGR position and if selected would have been eligible to serve on duty longer. In May 08, the applicant applied for the Director, REAMO, for which position she was not selected. She applied for no other AGR positions before she retired. The applicant argues that she was the most qualified despite the SAF/IGS ROI that states that she tied with another colonel as the #1 candidate. As for justification for her promotion to the grade of BG, the applicant cites that “each Director, REAMO has been screened by the Reserve Brigadier General Qualification Board (RBGQB) and found to be qualified to be placed in a Brig Gen position.” However, selection as qualified for the RBGQB is by no means a guarantee for promotion to BG. The facts reveal that while these officers may have been selected as qualified for RBGQB, only one has been promoted to BG. Facts are that twice a year the AFR convenes an ARB with the purpose of reviewing AGRs with an upcoming DOS for continuation in the AGR program for career status or beyond their 20 year active duty retirement date. The applicant’s records went before an ARB that resulted in her DOS remaining at 31 Jan 08, until AFRC/CC granted her reconsideration and extended her AGR tour to 31 Jan 10. There is no authority that provides an AGR will receive, is promised, or is guaranteed an extended tour. The standard for an ARB is the “needs of the AFR.” SAF/IGS ROI also conducted an inquiry into the ARB process concerns raised by the applicant and concluded that the “Reserve ARB is an authorized method to force manage the AGR program. The inquiry determined the ARB met the intent of DoDI 1205.18, Full-Time Support (FTS) to Reserve Components and AFI 36-2132 by managing her career to active duty retirement eligibility. There is nothing to indicate that she was singled out for denial of her extension request.” The applicant’s view is that she was involuntarily separated from the Air Force, and that this involuntary separation violated the law. Contrary to her belief, the applicant was not involuntary separated from the Air Force, nor was she forced into retirement. The ARB merely denied extending her AGR tour DOS beyond 31 Jan 10; she was allowed to finish her AGR tour and retired 1 Feb 10. She could have applied for AGR tours other than the Director, REAMO; however, she did not. As to a violation of Title 10 USC 1034b, the applicant appears to have the opinion that she was the only qualified applicant and would have been selected but for reprisal by the Deputy AF/RE substantiated in the SAF/IGS ROI. Contrary to her views, the evidence found by the SAF/IGS ROI depicted another colonel tied with the applicant as equally qualified for the Director, REAMO position. Had the Deputy AF/RE not reprised against her, there is no evidence that she would have been selected over the other colonel, who tied as the #1 candidate. With regard to her belief that but for the reprisal she would have been selected as the Director, REAMO and but for this non- selection she would have been promoted BG, the evidence again is to the contrary. Selection as qualified to meet the RBGQB does not result in an automatic promotion. Air Force policy is: promotion is not a reward for past service. The applicant’s belief is that it is the position held that gives rights to promotion, yet despite evidence to the contrary not all that served as Director, REAMO have been promoted to the grade of BG. The complete JA evaluation is at Exhibit B. AFRC/A1K recommends denial. A1K states that their position supports that of AFRC/JA. The complete A1K evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The author of the AFRC/JA opinion has largely mischaracterized the facts of her case, while minimizing some of the issues substantiated by the findings of the SAF/IG and addressing other issues not even requested in her BCMR submission. The SAF/IG ROI substantiated her allegation of reprisal, that the Deputy AF/RE did not select her for the Director, REAMO position in Jul 08. The SAF/IG substantiated reprisal against her is the foundation of her BCMR submission and the causal effects of the subsequent delays in addressing her case are the basis for the additional requests therein to provide compensation. Paragraph 1 of the AFRC/JA memorandum is of significant concern due to its initial mischaracterization of the facts contained in her BCMR submission and that it sets the baseline for the remainder of her letter. The paragraph states the following: She is not “alleging” that she was wrongfully denied the position of Director, REAMO. That is a substantiated fact as stated in the SAF/IG ROI. Therefore, her AGR orders should be corrected to show that she was selected for the Director, REAMO with four years added to her last orders, and she should have continuing active duty orders with a new DOS of 31 Jan 14 (or one year from date of the Board’s decision IAW Title 10 USC 1552d, whichever is sooner. Additionally, her retirement date should be amended to at least that point and all pay and entitlements which should have been earned, be awarded to her as compensation. Secondly, she did not allege she was wrongfully denied promotion to the grade of BG. The fact is that due to the substantiated reprisal by the Deputy AF/RE, she was denied the position as Director, REAMO and subsequently the opportunity to competitively screen for the RBGQB. While she fully understands that selection for promotion to BG is highly competitive and by no means an assurance solely based upon attaining specific positions during a career, the fact of the matter is that the opportunity to compete was wrongly denied to her by the substantiated reprisal actions of the Deputy AF/RE. A promotion board should only be usurped when there are: 1) extraordinary circumstances (i.e. a showing that the officer’s record cannot be reconstructed in such a manner so as to permit fair and equitable consideration) and 2) when the probability of selection for promotion would have been extremely high were it not for the original errors. Her record in this case cannot be reconstructed to show OPRs pertaining to her tenure as Director, REAMO or any other positive effect of her selection to that position. Moreover, based on her previous record and rate of selection of the previous Directors, REAMO, there is a high probability that she would have been highly competitive and selected for promotion to the grade of BG. Third, the AFRC/JA opinion repeatedly mentions that she alleges she was wrongfully denied extension of her AGR tour and was involuntarily separated. The fact of the matter is that she is not addressing the issue of the ARB or her separation, or any extension issues in this BCMR request at this point due to the fact that she still has not received any of the Freedom of Information Act (FOIA) information she requested. As previously stated she would separate her BMCR into two separate cases: one for her reprisal case and a second BCMR at a future date on all the other wrong doings (i.e. AGR mismanagement, violations of law and her involuntary separation from the Air Force) once she receives the appropriate information. The applicant’s complete response, with attachment, is at Exhibit E. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: AF/JAA recommends denial. AF/JAA states that the applicant was not the only AGR who was the top candidate for the Director, REAMO position and when faced with her AGR tour extension denial in 2010, she elected not to apply for other AGR positions or another Reserve position. It was within her control to apply for other AGR positions or pursue other opportunities that could have continued her in the Reserves until potentially other AGR positions came open. In short, the applicant chose to retire. AF/JAA states that one may consider that a denied tour extension in the current AGR position does not force the member to retire. However, it was a decision based on the best interest of the Air Force that the applicant should not be extended in her current position. In fact, from her application, the applicant’s supervisor stated that she had a successful path ahead of her in the AGR program for many years to come. The fact was she had been serving in that position for approximately six years. The applicant comments that each Director, REAMO had been screened and found qualified to be placed in a BG position. As pointed out by AFRC/JA, being found qualified to be in such a position does not mean the individual would be guaranteed promotion. In fact, only one of the named prior Directors, REAMO had been actually promoted to the higher grade. In addition, there was no guarantee that even if the applicant had been selected for Director, REAMO she would have been successfully found qualified to be placed in a BG position. AF/JAA states that they do not slight the applicant’s record, but note that she was not the top candidate for the Director, REAMO position. There was another qualified individual, and they do not see any evidence that person was reprised against by not being selected. In fact, there was no guarantee that had the other candidate been selected, he or she would have been found qualified to be placed in a BG position. Finally, the applicant does not present other AGR or Reserve positions that she applied for and was denied, and she does not identify other positions that would guarantee her being found qualified for the higher grade. AF/JAA states that they cannot and do not ignore the fact that she was the victim of reprisal; however, they do not believe she has articulated a justified claim for relief. While a second ARB decided not to extend her AGR tour, it was within the applicant’s control to apply for other positions rather than retire. The complete AF/JAA evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: Every time she receives a legal opinion either from AFRC or Headquarters Air Force (HAF), she is regrettably presented with either a gross mischaracterization of the facts or the minimization of the circumstances surrounding her case. The applicant states that she is entitled to correction of her military records for the reprisal against her as stipulated in Title 10 USC 1034, as substantiated by the ROI provided by the SAF/IG. The first two pages of the AF/JAA opinion attempt to restate the background of her complaint and emphasize that she did not have the highly desirable command experience. However, as noted in her 17 Jan 13 reply to the AFRC/JA advisory opinion, it is undisputed the advertised position requirement for Director, REAMO stated, “previous squadron, flight or section command is highly desirable.” She was a squadron section commander at Soesterberg Air Base, The Netherlands. This is evidenced in her records and duty title summary previously provided in her Jan 13 rebuttal. There appears to have been a gross administrative error on the part of the REAMO office when they did their initial screening. The reviewers continue to either misunderstand or mischaracterize the issue and the fact that it was during the IG interview that the Deputy AF/RE stated that he only wanted someone with “squadron command” (and not section or flight command) experience as his reason for not selecting her when he was questioned during the investigation. Furthermore, she has been informed that she should have been “color-coded” as the undisputed #1 candidate for the position from the very beginning. Although she has requested this information under the FOIA, she has yet to be provided this “color-coded” rack/stack list. The AF/JAA author attempts to shift focus to two points. First, that she was not the only AGR who was a top candidate for the position. However, the SAF/IG report identified her as the top candidate based on interviews conducted and insights provided under oath. Even if there was another strong candidate, the Deputy AF/RE reprisal actions against her ensured she was denied the position. Her concern is the compensation she should be afforded based on the substantiated reprisal actions of the Deputy AF/RE. Regarding her second point, it seems convenient that three or so years after the fact, the case reviewers simply state that she chose to retire and could have applied for other jobs. This is absurd when considering the facts. During that time, she was waiting on the results of an official IG complaint which by law, is supposed to be finalized within six months (it actually took 22 months to conclude and she was not provided the results until the last day of Jul 10, an admitted oversight by the (SAF/IG). It does not make sense that she would apply for other positions when she was waiting for the results. At a minimum, the Air Force should have retained her at her current duty location or one close by until the results were provided. Also, as verified in the IG report, she was informed that she was not going to get another job. Furthermore, she did not request to leave the AGR career program; she requested to stay in the program but was told to either retire or she would be placed in the Individual Ready Reserve (IRR). She cannot communicate how competitive her promotion potential was prior to the reprisal actions of the Deputy AF/RE. Even the AF/JAA advisory opinion states they do not slight her record at all. She acknowledges that she would be at a disadvantage if her case were presented to a SSB. However, at this point she offers her records as evidence that she achieved every whole- person milestone, served at all levels (squadron, wing, MAJCOM, HAF and Joint Command), has always been ranked as #1 or #2 or top 1%, completed her Master’s Degree, awarded the Legion of Merit (LOM) and completed all professional military education (PME). The probability of her being selected for promotion would have been extremely high. However, her case is one of such an egregious injustice and blatant abuse of power that unprecedented action should be warranted. Lastly, regarding AF/JAA’s advisory opinion that they acknowledge and do not ignore the fact that she was the victim of reprisal based on the substantiated findings of the official IG complaint, her professional response to that is this: the law orders military department BCMRs to correct the record of a victim of reprisal pursuant to Title 10 USC 1034 and to provide appropriate compensation. The applicant’s complete response is at Exhibit H. _________________________________________________________________ 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 concerning the applicant’s requests for a direct promotion to the grade of BG and that her record be corrected to reflect that she was selected for the Director, REAMO position with a new DOS of Jan 2014. Although the applicant has been the victim of substantiated reprisal in violation of 10 USC 1034 by the Deputy AF/RE, which was wrong and unacceptable, we cannot conclude that a direct promotion to the grade of BG is an appropriate remedy. In this respect, we note that this Board has long taken the position that issues of promotion are best determined by a duly constituted promotion board empowered with the authority to determine those best qualified for the limited number of promotions available. In addition, our effort to try and determine the appropriate relief in light of the act of reprisal has been complicated by the applicant’s decision to retire from the Air Force. Moreover, the applicant has specifically requested that she not meet a SSB so SSB consideration is moot. While this Board has on occasion found it to be in the interest of justice to directly promote an applicant, it has only been under the most extraordinary of circumstances when the Board is convinced the applicant has been unfairly deprived of promotion and likely cannot receive fair and equitable consideration. Although the list of accomplishments the applicant has presented appears impressive, we cannot validate they establish her qualifications for promotion or know how they would be viewed when stacked against her contemporaries in a competitive promotion process. Essentially, we can only speculate as to whether or not she would have ultimately been promoted to the grade of BG. Moreover, as pointed out by AFRC/JA, being found qualified to be in such a position does not mean an individual would be guaranteed promotion. In fact, AF/JAA states that only one of the named prior Directors, REAMO had been actually promoted to the higher grade. Additionally, there is no guarantee that even if the applicant had been selected for Director, REAMO she would have been successfully found qualified to be placed in a BG position. In view of this, coupled with the fact that the ROI reflects that she was not the definitive number one candidate for the position, we are not persuaded that she more likely than not would have been promoted to the grade of BG were it not for the reprisal. Unfortunately, there are situations wherein the ability of the Board to craft relief that will make an applicant completely whole is often times limited by the very circumstances of the case. In this instance, there is no way to completely restore the career opportunities the applicant may have lost. Therefore, we do not find extraordinary circumstances in her case that rise to a level to warrant a direct promotion to the prestigous grade of BG. With regards to her requests that her records be corrected to show that she was selected for the Director, REAMO position with a DOS of Jan 2014, we believe the relief recommended that includes constructive credit through January 2013, is the more appropriate remedy. Accordingly, we find no basis to grant this portion of the applicant’s request. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant changing her records to reflect a new DOS of 1 Feb 2013, with back pay, issuing a new DD Form 214 and reimbursement for vehicle fuel/maintenance expenses. While the Board cannot definitively conclude that the applicant would have been selected for the position but for the reprisal; we believe that some measure of relief is warranted. In this respect, we note that the applicant tied with another colonel as the “#1” candidate for the Director, REAMO position. However, because of the personal prejudices of the responsible management official against the applicant, she was not fairly considered for the position. As such, we have determined what we believe is the appropriate relief based on the evidence before us. Although the applicant contends that she should be given service credit from 1 Feb 10 to 1 Feb 14, we find it more equitable to award the applicant with three years of active service credit beginning 1 Feb 10, resulting in a new retirement date of 1 Feb 13, which is consistent with the date she alleges she would have actually reported to the Director, REAMO position (Jan 09). Additionally, we believe reimbursement for her out-of-pocket vehicle maintenance expenses incurred as a result of having to be geographically separated from her family due to the reprisal is warranted. Therefore, we believe correcting the applicant’s record to reflect that she was awarded three years’ service credit with associated back pay and allowances along with reimbursement of vehicle expense is appropriate to the circumstances of the case and constitutes full and fitting relief. Therefore, we recommend the applicant’s records be corrected to the extent 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 our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD DETERMINES THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. She was not released from active duty on 31 January 2010, but on that date, she was continued on active duty until 31 January 2013, at which time she was released from active duty and retired under the provisions of Title 10, United States Code, Section 8911, effective 1 February 2013. b. She was in a temporary duty status for a sufficient number of days to accumulate an entitlement of $1,000.00. _________________________________________________________________ The following members of the Board considered Docket Number BC-2012-04795 in Executive Session on 18 Apr 13, 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 11 Oct 12, w/atchs. Exhibit B. Letter, AFRC/JA, dated 4 Dec 12. Exhibit C. Letter, AFRC/A1K, dated 17 Dec 12. Exhibit D. Letter, SAF/MRBR, dated 21 Dec 12. Exhibit E. Letter, Applicant, dated 17 Jan 13, w/atch. Exhibit F. Letter, AF/JAA, dated 31 Jan 13. Exhibit G. Email, SAF/MRBC, dated 22 Mar 13, w/atch. Exhibit H. Letter, Applicant, dated 17 Apr 13.