RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05978 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: 1. His Unfavorable Information File (UIF), dated 1 Mar 11, be removed from his records. 2. His Letter of Admonishment (LOA), dated 21 Dec 10, be removed. 3. The derogatory comment “During this period, Major C displayed disrespectful and unprofessional behavior toward 66 ABG legal staff for which he received a Letter of Admonishment” be removed from his Training Report, dated 3 Aug 12, or, in the alternative, the entire report be declared void and removed from his records. 4. He be reinstated into the Regular Air Force at his previous rank and grade. ________________________________________________________________ _ APPLICANT CONTENDS THAT: In a 10-page brief, the applicant’s counsel makes the following key contentions: 1. The applicant was retaliated against by his leadership resulting in the issuance of an LOA, a UIF, and a referral Training Report. 2. On or about 20 Nov 10, the applicant injured himself while serving as an Honor Guard Ceremonial Guardsman during a funeral ceremony. However, he was never evaluated for any disability prior to discharge. 3. On or about 21 Dec 10, he received a LOA for being “uncooperative” with and allegedly “rais[ing] [his] voice” during a meeting. He believes thereal reason he received the LOA was because his leaders were upset that he had brought a serious safety concern to the attention of senior leaders and were concerned that this would make them look bad in the eyes of their raters. The LOA subsequently formed the basis for a UIF and was reflected on his Training Report. 4. Despite an Air Force Student/Patient Panel recommending his retention, a Reduction in Force (RIF) Retention Board non- selected him for retention. He did not receive a RIF score sheet and was not evaluated for any disability prior to discharge. 5. His command failed to comply with the governing instructions regarding filing the LOA in the UIF: a. His LOA did not have any supporting evidence. First, the LOA did not comply with the strict regulatory requirements contained in the governing instructions for LOAs and UIFs. The instructions specifically state, that a LOA shall state “[w]hat the member did or failed to do, citing specific incidents, and their dates.” The LOA only provides the date theapplicant sent an email to his leadership identifying safety concerns, yet provides no dates about when his alleged “unprofessional and immature behavior toward the 66 ABG legal staff” took place. Additionally, it fails to cite any “specific” actions or words used by the applicant. Secondly, and most importantly, the applicant was never provided with any evidentiary basis for the LOA precipitating his separation. His command not only failed to follow the applicable instructions, but ended his career without gathering a single piece of evidence to support the vague and untrue allegations contained in the LOA. In fact, it appears that there was not even the most cursory inquiry or investigation into the applicant’s alleged misconduct. Even more troubling is the alleged offensive conduct involved (1) an attempt to report a serious safety violation and (2) communications which the applicant believed were subject to attorney client privilege. b. The Air Force Safety Program is designed to encourage reporting of safety incidents and concerns. Moreover, various federal laws, including the Military Whistleblower Protection Act (MWPA), 10 U.S.C. Section 1034 and DoD Directive 7050.0 prohibit reprisal actions, such as the admonishment received by the applicant. When a “member of the Armed Forces communicates information the member reasonably believes evidences a violation of law or regulation, including… a substantial and specific danger to public health or safety, when such communication is made to any of the … Any person or organization in the chain of command.” The email to leadership falls squarely with the protections of the MWPA, and subsequent actions taken by his command are textbook reprisal. Regarding the communication between the applicant and the legal personnel, the governing instructions provide, that “Legal assistance establishes an attorney-client relationship and consists of Air Force attorneys provided advice on personal, civil legal matters to eligible beneficiaries.” The communication should take place in a “confidential setting” and most importantly that information received from a client during legal assistance, attorney work-product, and documents relating to the client are confidential. Information should only be released with the client’s express permission, pursuant to a court order, or as otherwise permitted by the Air Force Rules of Professional Conduct and other Air Force rules pertaining to ethical conduct and professional responsibility. Such release should only be accomplished after contacting AFLSA/JACA through the appropriate supervisory chain. There is no exception authorizing disclosure when the attorney believes the client has engaged in disrespectful conduct. The 66 ABG/SJA failed to comply with these requirements and disclosed communications with the applicant to command in connection with the issuance of the LOA, after assuring him of the confidentiality of their communications. 6. Improper inclusion of non-specific/vague derogatory comments on the applicant’s Training Report: Despite the fact that this allegation is not supported by any evidence, sworn statement, memorandum for record, or other documentation, the Training Report contains exactly the type of “non-specific/vague comments about the individual’s behavior or performance” which are prohibited by the governing instruction. As these comments are prohibited, and are not supported by the evidence, the Training Report should be voided or the inaccurate and unsubstantiated comments be removed. In support of his request, the applicant provides a copy of his Declaration Statement; excerpts from his medical records; a copy of his LOA and response; a copy of his AF IMT 1058, Unfavorable information File Action; a copy of his AF Form 77, Letter of Evaluation; a copy of a memorandum from AFIT/ENE, a copy of his response to the AFIT/ENE memorandum; a copy of an Addendum;, copies of his AF Form 707, Officer Performance Report; a copy of a letter from Headquarters Space and Missile Systems Center ; a copy of a Separation Fact Sheet, with four attachments; copies of letters of support, and a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: On 12 Jul 10, the applicant was commissioned a second lieutent and enrolled in a 41-week Education with Industry program through the Air Force Institute of Technology at Raytheon Company, Marlborough, MA. On 20 Nov 10, the applicant was injured while performing duty during an Air Force Honor Guard funeral ceremony. On 21 Dec 10, the Associate Dean for Students, Air Force Institute of Technology (AFIT), Air University, issued the applicant a Letter of Admonishment (LOA) for unprofessional and immature behavior toward the 66 ABG legal staff and disrespect toward a superior commissioned officer. On 26 Jan 11, the Commandant, AFIT, determined that an Unfavorable information file should be established and the LOA filed therein. On 17 Aug 11, the applicant was rendered a referral Training Report (TR), for the period 12 Jul 10 through 24 Jun 11. IAW the governing AFI, the TR was considered a referral based on the following comment, “During this period [applicant] displayed disrespectful and unprofessional behavior toward 66 ABG legal staff for which he received a Letter of Admonishment.” Prior to making the TR a matter of record, the Commandant, AFIT, considered the applicant’s response, as noted in the Letter of Evaluation that accompanies the TR. The applicant was considered and not selected for retention by the Calendar Year 2011 Reduction in Force Board. On 25 Jan 12, the Air Education and Training Command Inspector General (AETC/IGQ) reviewed the applicant’s allegations and provided the following analysis: Issue 1: The applicant alleged the Associate Dean for Students reprised against him by issuing him an LOA because he reported a safety hazard to Air Force senior leaders. The applicant contends that it was because of the LOA that he was not retained in the Air Force. Analysis/Findings: This case did not meet the elements for prima facie reprisal. The AFIT Dean of Students issued the LOA to the applicant for good reason, unrelated to the alleged protected communications. The LOA was based on the applicant’s disrespect to a superior officer and for unprofessional conduct towards the staff of the 66 ABG/JA. The UIF was created to ensure the LOA was transmitted to his gaining unit. The decision to file the LOA in his OSR was at the discretion of his senior rater who apparently felt the applicant’s lapse in decorum warranted the attention of future promotion or retention boards. Issue 2: Review of Abuse of Authority. Since the responsible management official’s (RMO) actions were within the scope of his authority and were not arbitrary or capricious, he did not abuse his authority by issuing the LOA to the applicant. Analysis/Findings: AETC/IG dismissed the complaint in accordance with governing instructions. They found the complaint to be untimely and the likelihood the evidence necessary to make a definitive decision in any investigation was grossly diminished by the passage of time. Since AETC/IG did not pursue the complaint, notifications in conjunction with any possible reprisal allegation or adverse information against the Associate Dean for Students was not required. The case was closed and the applicant was notified. A copy of the complete Report of Investigation is at Exhibit B. The applicant was released from active duty on 1 March 2012 with a narrative reason for separation of Reduction in Force. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which is at Exhibit C, D, E, and F. ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/DPSIM recommends the UIF and LOA not be removed from the applicant’s records. They cannot speak to whether or not the commander’s actions were just or not; at most they can only discuss if the proper procedure was followed in the administration of action. After careful review of the evidence presented, minor discrepancies have been identified in the commander’s process for establishing a UIF. However, none of the discrepancies are so egregious that they invalidate the commander’s action. The LOA in question should have been administered as outlined by the governing instructions. Specifically, there is no evidence the applicant acknowledged receipt of the LOA at the time of being administered the admonishment. Paragraph 6 of the LOA notifies the applicant that “You will acknowledge receipt of this letter immediately by signing the acknowledgement below”; however, the LOA does not provide the endorsement the commander is referring to. The applicant presumably received the LOA, dated 21 Dec 10, and submitted comments on 10 Feb 11. With that being the case, they assume the applicant acknowledged receipt of the administrative action; therefore, meeting the intent of the instructions. The complete DPSIM evaluation is at Exhibit D. AFPC/DPSOR does not provide a recommendation. The Air Force implemented various voluntary Force Management measures to decrease personnel over its authorized end strength; however, they did not achieve the required losses for the officer force through voluntary means thus the Secretary of the Air Force chose to convene a RIF Board. Captains and Majors in the Line of the Air Force and in specified year groups were considered by the board. Officers not selected for retention on active duty had a mandatory date of separation of 1 Mar 2012. An unfortunate consequence of reducing the officer force is losing quality professionals who gave their best to the Air Force. Shortening the careers of the dedicated officers was a painful, but a necessary action by the Air Force in order to meet end strength and budgetary limitations. The complete DPSOR evaluation is at Exhibit E. AFPC/DPSID recommends denial of the applicant’s request to remove the training report. Based on the lack of corroborating evidence provided by the applicant, and the presumed legal sufficiency pertaining to the issuance of the LOA as commented upon in the contested report, they recommend the report remain in the applicant’s records. Further, the applicant has not provided sufficient evidence to show the report was unjust or inaccurate as written. Although the applicant provided a compelling story and they can sympathize with him that he was a victim of accidental bodily injuries while performing Honor Guard duties, this does not excuse him from remaining professional and respectful to the JAG personnel and having the common courtesy of following the proper chain of command protocols. Ultimately, the adverse actions against him happened because of how he conducted himself after the incident. The complete DPSID evaluation, with attachment, is at Exhibit F. AFPC/JA recommends denial stating that they agree with the other advisories in this case, and write only to add additional comment. The DPSID advisory provides a complete and accurate assessment of the issues raised in the application. They also agree with the IG’s determination not to conduct a full investigation and to dismiss the complaint. The applicant’s LOA and UIF are completely supported by the evidence. The portion of the LOA that admonished the applicant for not reporting his concerns to lower level supervisors and failing to follow the chain of command in no way establishes the LOA was a pretext for reprisal. In addition, attorney-client privilege covers the content of communications; it does not at all pertain to reporting observed behavior by witnesses that happened to be attorneys. Privileged communications do not include rude and disrespectful behavior. The complete JA evaluation is at Exhibit G. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a 7-page brief, counsel provides the following key points for his rebuttal: a. While AFPC/DPSIM recommends denying the removal of the applicant’s UIF and LOA, they explicitly note that they “cannot speak to whether or not the commander’s actions were just or not” and are only discussing whether proper procedures was comported with. Although DPSIM characterizes the deficiencies as “minor,” they concluded the proper procedures were not followed, in that (1) the LOA did not contain the required endorsement for signature by the applicant; and (2) the commander did not acknowledge receipt of the applicant’s rebuttal prior to deciding to establish the UIF. b. The emails recently provided to the applicant pursuant to a Freedom of Information Act (FOIA) request indicate that senior leadership had already decided to take adverse action against him in retaliation for the email he sent on 22 Nov 10. c. In an 8 Dec 10 email, the Associate Dean of Students at AFIT stated, “FYI, between the inappropriateness of the initial notification; email, and follow on actions with your folks, I’m “Looking at [issuing] LOA with likely UIF.” In other words, he was planning to issue a UIF, in part, for retaliation against the applicant emailing his safety concerns to senior leadership. Further, the recipient of this email stated that “I strongly support a UIF,” again without regard to any explanation by the applicant. d. AFPC/DPSOR’s memorandum addresses only the applicant’s non-retention under the RIF board. The memorandum is dedicated only to explaining the origins and procedures of the RIF board, and does not refute any of the irregularities or injustices raised by the applicant. e. AFPC/DPSID addresses only the referral training report and does not address whether the training report contains “non- specific/vague comments about the individual behavior or performance” in violation of the governing instruction. The report does not indicate when the alleged conduct took place, or what the alleged disrespectful and unprofessional behavior was, nor does it indicate that this occurred in the aftermath of a traumatic accident involving the applicant. In addition, DPSID gives a lot of weight to an AETC/IG memorandum that allegedly found “no merit in the member’s claim.” However, the fact is, the IG declined to conduct an investigation into the allegations of reprisal on the basis the request for investigation was made more than 60 days after the incident. To date, no investigation has taken place with regard to the applicant’s allegations of reprisal. f. Regarding the memorandum for record from the Associate Dean for Students, rendered prior to his retirement/, he states the “reasons for the LOA are clearly laid out in paragraphs 1 and 2 of the LOA” and paragraph 3, regarding the applicant’s email, was only an “opportunity to provide some formal, written mentoring.” g. The AFPC/JA advisory opinion relies upon the findings of the AETC/IG report which contends it “fully investigated” the applicant’s allegation, yet acknowledges the IG did not conduct a “full investigation” into the applicant’s complaints. AFPC/JA contends the LOA was “completed supported by the evidence” referencing a 29 Nov 10 memorandum for record; however, no such memorandum was provided to the applicant in connection with the LOA, UIF, or referral training report. With regard to the issue of privilege, AFPC/JA ignores the fact the alleged disrespectful behavior by the applicant arose during attorney-client communications; this fact is confirmed in an email from the colonel to a general officer. The applicant’s complete submission, with attachments, is at Exhibit I. ________________________________________________________________ _ 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. We took careful notice of the applicant’s complete submission pursuant to Title 10, United States Code, Section 1552; however, we are not persuaded that he has been the victim of an error or an injustice. We have also considered this case under the provisions of 10 USC 1034 and find the evidence provided insufficient to override the rationale provided by the Air Force offices of primary responsibility. We also note the applicant filed a complaint with the IG alleging reprisal; however, the IG determined his complaints did not meet the elements for prima facie reprisal and were found to be untimely. While the applicant alleges the LOA and referral training report harmed his retention opportunities, he has not provided any evidence showing the content of the report was the sole reason he was not selected for retention by the RIF board. As noted by AFPC/DPSOO, the Air Force had to make a reduction in their officer force, and although it was unfortunate, it was necessary in order to meet congressionally mandated end strength. Furthermore, the action taken against the applicant was solely due to his own actions. With regard to counsel’s assertion the 66 ABG/SJA failed to comply with attorney-client confidentiality, as noted by AFPC/JA, the applicant’s reporting of a hazardous situation was investigated by the AETC/IG office who determined the communications were not sent as protected communications; therefore, no violation occurred. The applicant has not provided evidence to persuade us to the contrary and we agree with the opinions and the recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Therefore, in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. The applicant alleges he has been the victim of reprisal. By policy, reprisal complaints must be filed within 60 days of the alleged incident or discovery to facilitate the IG’s investigation. As mentioned above, we note the applicant filed an IG complaint; however, his complaint did not meet the elements for prima facie reprisal and were found to be untimely. Nevertheless, we reviewed the evidence of record to reach our own independent determination of whether reprisal occurred under the provisions of 10 USC § 1034. We note the applicant’s contentions but based on our independent review of the evidence presented, we do not conclude that he has been the victim of reprisal. 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 issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ _ 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-2012-05978 in Executive Session on 5 Nov 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR Docket Number BC-2012-05978: Exhibit A. DD Form 149, dated 21 Dec 12, w/atchs. Exhibit B. SAF/IG Investigation (Withdrawn). Echibit C. Applicant's Master Personnel Records. Exhibit D. Letter, AFPC/DPSIM, dated 31 May 13. Exhibit E. Letter, AFPC/DPSOR, dated 10 Jun 13. Exhibit F. Letter, AFPC/DPSID, dated 14 Jul 13. Exhibit G. Letter, AFPC/JA, dated 22 Jul 13. Exhibit H. Letter, SAF/MRBR, dated 18 Sep 13. Exhibit I. Letter, Applicant’s Counsel, dated 11 Sep 13 [sic], w/atchs. Panel Chair