RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05912 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: 1. He be reinstated in the grade of chief master sergeant (CMSgt/E-9), with his original date of rank (DOR) of 1 Sep 03. 2. He receive back pay and allowances, including per diem, for the remaining portion of his extended active duty tour in support of Operation JUMP START (OJS) that was curtailed (1 Oct 07 to 25 Jun 08). 3. He receive pay for the Chief Executive Course that he was not allowed to attend. ________________________________________________________________ THE APPLICANT CONTENDS THAT: At the time the reprisal action took place, he was unlawfully pulled from a 2-year mission after only completing 15 months. He states that according to the Inspector General (IG) investigation, he was targeted by his former mission support group (MSG) commander when he did not report for unit training assemblies (UTAs) when required. The IG substantiated three acts of reprisal by the MSG commander for 1) curtailing his Active Guard Reserve (AGR) active duty tour; 2) denial of reenlistment, and 3) denial of attendance to the Chief Executive Course. He was fearful of coming forward earlier because he feared additional reprisal action against him since his chain of command all the way up to The Adjutant General (TAG) was from his former unit. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 25 Jun 06, the applicant, while serving in the grade of CMSgt with the 144th Fighter Wing (144th FW), was recalled on extended active duty (EAD) in support of OJS. On 30 Sep 06, the applicant was released from active duty in the grade of CMSgt, with a reason for separation of completion of required active service. On 1 Oct 06, the applicant entered an AGR tour, in support of OJS and served until 30 Sep 07, with a reason for separation of completion of AGR military duty tour. On 3 Nov 07, the applicant’s 30 Nov 04 enlistment was extended for one year, with an new expiration date of 29 Nov 08. In Sep 08, the applicant took an assignment with the 222nd Intel Support Squadron (222nd ISR), in a master sergeant (MSgt/E-7) position and was demoted, without prejudice, to the grade of MSgt. On 16 Nov 08, the applicant reenlisted in the grade of MSgt for a period of three years. He completed a subsequent reenlistment contract on 11 Nov 11. On 23 Aug 11, the applicant filed an IG complaint against the MSG commander with the following 3 allegations; 1) terminating his OJS orders; 2) denying reenlistment, and 3) denying his attendance to the Chief Executive Course. On 19 Oct 12, the applicant was notified by the Secretary of the Air Force Inspector General (SAF/IGQ) that the investigation substantiated his allegations of reprisal. The SAF/IGQ reviewed the report of investigation and concurred with the findings. In addition, the Department of Defense Inspector General (IG DoD/MRI) concurred with the determination, approved the report, and substantiated the allegations (Exhibit B). SAF/IG concluded that allegation 1 was substantiated because the MSG/CC terminated the applicant’s AGR tour orders shortly after being notified of the OJS’s letter regarding drill attendance was suspect. They noted based on the investigation the applicant and his OJS chain of command was understood that he would continue on his OJS orders. SAF/IG concluded that allegation 2 was substantiated because the MSG/CC denied the applicant’s reenlistment due to protected communication regarding his drill attendance while on OJS orders and not as the MSG/CC stated. SAF/IG concluded that allegation 3 was substantiated because the MSG/CC denied his attendance to the Chief Executive Course because of protected communication and not because he did not want to expend resources on someone who was not reenlisting. However, the evidence shows that had the applicant been able to reenlist he would have attended the course. The applicant is currently serving in the grade of senior master sergeant (SMSgt/E-8) with a DOR of 1 May 01 and an effective date of 19 Dec 12. ________________________________________________________________ THE AIR FORCE EVALUATION: NGB/A1P did not provide a recommendation. However, they concurred with the subject matter expert (SME) noting the applicant’s request did not substantiate any procedural errors defined by policy occurred. The SME, A1PP noted, that while responsible to provide an advisory to this case, they cannot affect any of the requested changes the applicant has cited in his application. His request for changes is not based on procedural errors defined by policies but based on several acts of injustices. The requested actions can only be rectified by the California Air National Guard (CAANG) Joint Forces Headquarters (JFHQ) and Air Reserve Personnel Center (ARPC). In addition, discussion with the CAANG JFHQ indicates that they are standing by to implement any of the directed changes determined by the BCMR. A1P notes that while they are not trained in the IG arena, it is difficult to discount the substantiated SAF/IG complaint alleging the applicant’s non-retention was reprisal based. If the Board grants relief in concurrence with the SAF/IG findings, appropriate updates to the applicant’s personnel record should be made. The Air National Guard Readiness Center Judge Advocate (ANGRC/JA) noted if accurate, the SAF/IG Complaint findings supports the conclusion that some of the CAANG personnel actions described by the applicant were taken as direct result of improper retaliatory motives as defined by Title 10, United States Code (USC), § 1034- Protected Communications; Prohibition of Retaliatory Personnel Actions. All relevant personnel actions at issue in the present case were conducted by the CAANG, and may only be remedied by the CAANG and ARPC. It is proper for NGB/A1P to examine and comment on the procedural actions at issue in an appeal to the BCMR submitted by a current or former member of the ANG. It would, however, be improper for NGB/A1P to rely on the SAF/IG findings in the investigation at issue to comment on the motives, and whether those motives were the proximate cause, behind the actions of the CAANG. Furthermore, determination on the intent and possible remedy of CAANG's actions in this matter are beyond the purview of NGB/A1P. The complete A1P evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation, with attachments, was forwarded to the applicant on 8 Mar 13 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We note that based on the Report of Investigation (ROI) from the SAF/IG the applicant was the victim of reprisal under the Whistleblower Protection Act (10 USC 1034) by his former commander who denied his reenlistment and attendance at the Chief Executive Course (CEC). Based on this, the applicant’s requests he be awarded back pay and allowances, including per diem for the remaining portion of his AGR tour in support of OJS and that he be paid for the Chief Executive Course he was not allowed to attend. Although the ROI concluded that had it not been for the reprisal action the applicant would have been continued on his active duty OJS tour for a total of two years, the applicant states that his orders were approved in six-month increments due to funding. Based on our review of the evidence before us, we do not find this to be the case. In this respect, we note that his OJS orders began on 26 Jun 06 and appears to have naturally ended on 30 Sep 07, not in six months. Other than the comments in the ROI, the applicant has not provided substantial evidence to demonstrate to our satisfaction that his OJS orders would have been approved/extended beyond 30 Sep 07. In view of this, we are not inclined to award the applicant additional pay and allowances including per diem for the period of 1 Oct 07 to 25 Jun 08 in support of OJS. Should the applicant provide additional documentation from the approval authority that validates that his orders would have continued beyond Sep 07 we would be willing to reconsider his appeal. As such, this portion of the applicant’s request is not favorably considered. With respect to the applicant’s request to receive pay for the CEC that he was not allowed to attend, we note that he did not attend it and has provided no evidence to show that he was entitled to compensation for a course he did not attend. Accordingly, it is our opinion the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice. Absent persuasive evidence that he was denied rights to which he was entitled, we find no basis to recommend granting the relief sought in this portion of his request. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action in regards to reinstatement to the grade of CMSgt. After careful consideration of the applicant’s request, we agree with the findings of the ROI that the applicant was denied reenlistment in the grade of CMSgt as a result of a protected communication. We note that had the commander not denied the applicant reenlistment he would not have taken the actions that resulted in his demotion without prejudice to the grade of MSgt. Therefore, we conclude that the applicant’s grade should be reinstated effective Sep 08 (the date he took the demotion) and he be placed in an appropriate position, commensurate with his office, grade and rank of CMSgt. Accordingly, we recommend the applicant’s 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. It is recommended that the California Air National Guard reflect that on 8 September 2008, he was not voluntarily demoted to the grade of master sergeant, without prejudice. b. We direct that his Air Reserve Component record reflect that he was honorably discharged on 15 November 2008 and reenlisted in the Air National Guard on 16 November 2008 for a period of three (3) years in the grade of chief master sergeant. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-05912 in Executive Session on 30 May 13, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-05912 was considered: Exhibit A. DD Form 149, dated 20 Dec 12, w/atchs. Exhibit B. SAF/IG Report of Investigation, WITHDRAWN. Exhibit C. Letter, NGB/A1P, dated 4 Mar 13, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 8 Mar 13. Panel Chair