RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01223 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. The findings of the Inspector General of the Air Force(SAF/IG) Report of Investigation (ROI) substantiating findingsof reprisal against him be set aside. 2. The letter of reprimand (LOR) issued incident to the findings of reprisal be set aside. APPLICANT CONTENDS THAT: 1. The Investigating Officer (IO) failed to interview a critical witness, the commander (CC) responsible for hiring theindividual for the Active Guard Reserve (AGR) vacancy in thismatter, as part of the investigation into the alleged reprisal,despite his request for them to do so. During the matter inquestion, he discussed with the commander the qualities neededfor the AGR vacancy in questions. He told the commander that there was a disconnect between the field and the AGR Review Board (ARB) process. Since none of the AGR candidates had command experience, it was his recommendation to look outsidethe AGR candidates and particularly at an Air Reserve Technician(ART) candidate who had been a commander. His commander agreedwith that approach and directed him to check with the ARTcandidate’s leadership to verify his suitability for the job.Unfortunately, he failed to provide written justification for that decision to consider a candidate other than AGR candidates as required by AFI. 2. The IO made erroneous “findings of fact,” which were reliedupon to substantiate that the applicant committed reprisal. The ROI focuses on statements he made about the complainant being“damaged goods” and “in the penalty box.” He does remember parts of each conversation, and regrets them. His negativeopinion of the complainant conveyed by those statements was as aresult of her personal appeal to the commander. He had no knowledge of what was in her appeal, only that she had gone around the established appeal process from adverse Board decisions and received special treatment based on her personalrelationship with the commander. One witness connected his negative remarks about the complainant because she “whined tothe boss about the ARB process.” That witness was mistaken. He had no idea that she had complained about the ARB process. This same witness stated that he placed the protected communicationon the applicant’s desk. He had no recollection of this event,nor ever seeing the protected communication, and testified tothat effect under oath. 3. The IO wrongfully used the fact that he did not conduct aninterview when hiring for the AGR vacancy in question, when hehad conducted interviews for three positions during his tenureas a Numbered Air Force (NAF) commander as evidence of inconsistency to support a finding of reprisal. Before becomingthe NAF/CC he had never conducted an interview to hire for a position. It seems unfair to ascribe bad motives to him for not interviewing for the AFR vacancy in question when he had neverused the interview process before. As the NAF/CC, he receivedadvice to interview, saw the advantages of it, and repeated thatapproach. It had nothing to do with his previous experienceelsewhere. 4. The IO’s analysis of answers to the four “acid test” questions used to determine if there was an abuse of authorityresulting in reprisal actions (AFI 90-301, Inspector GeneralComplaints Resolution, Chapter 6, Reprisal Complaints) was fatally flawed, resulting in an erroneous conclusion substantiating reprisal. He strongly objects to how the IOconcluded that he knew about the protected communication. During his testimony, he was shown the alleged protected communication. He had not seen it before and told the IO so. He did tell the IO that it was similar to an email he had seen from another AGR officer and somehow, from this exchange, the IOconcluded that he had seen the protected communication. Additionally, as he understood it, no reprisal action can befound if a different personnel action would have been takenregardless of any protected communication. That was exactly thecase here. Assuming he was wrong to have placed such a highpremium on command experience and an AGR should have beenselected, the ROI erroneously states that the AGR candidate“rack and stack” spreadsheet on top of the vacancy packageidentified the complainant as the #1 candidate. That was not true; she was the #2 candidate. The substantiated finding of a reprisal and the LOR later placedin his record marks the only blemishes in his otherwise distinguished record. The blemishes are the result of significant errors and injustices, and they need to be corrected. The applicant’s complete submission, with attachments, is atExhibit A. STATEMENT OF FACTS: The applicant’s military personnel records indicate that heserved in the Air Force Reserve in the grade of brigadiergeneral (O-7) during the matter in question. The SAF/IG initiated an investigation to address the followingallegation pertaining to the applicant: Allegation. The applicant reprised against the complainant bynot selecting her for a colonel (O-6) AGR position in violationof 10 USC Section 1034, Military Whistleblower Protection Act. Finding: SUBSTANTIATED In Feb 10, the SAF/IG ROI S6803P was released. By a preponderance of evidence, based upon the findings of fact andsworn testimony, the allegation that the applicant reprisedagainst the complainant by not selecting her for the position inviolation of 10 USC Section 1034, Military Whistleblower Protection Act, was substantiated. The following findings offact are described in the noted report: 1) On 22 Mar 07, the complainant met an ARB in which sherequested a two-year extension to her date of separation (DOS). 2) On 10 Apr 07, the complainant was informed the ARB deniedher two-year extension. 3) In late Jul to early Aug 07, the complainant met with thevice commander (CV) to address policy violations relating to theARB process. 4) On 13 Aug 07, the complainant sent a letter to the CCaddressing her concerns about the ARB process and asking him toreconsider extending her AGR tour. 5) On 23 Aug 07, the CC informed applicant of his decision toapprove an extension of the complainant’s AGR tour. 6) On 27 Mar 08, the applicant received an email from the CVcontaining a copy of a letter written by another personnelofficer contending policy violations in the AFR ARB processsimilar to the complainant’s letter last year. 7) On 23 May 08, the complainant submitted an application forthe noted O-6 AGR vacancy. 8) Jun-Jul 08 the hiring office produced a “rack and stack” ofeligible candidates for the noted AGR vacancy announcement wherethe complainant and another AGR member were listed at the #1candidates (tied) for the position. 9) In Jun 08, applicant told a peer of the complainant thatcomplainant was “not one of the top candidates” for the positionand that complainant was “in the doghouse for getting somethingthat some of the other folks didn’t get.” 10) In Jun 08, the applicant told a member of the CC’s staffthat the complainant was “damaged goods” because she had “whinedto the boss about the ARB process and got her appealoverturned.” 11) In Jun 08, the applicant told another member of the CC’sstaff that the complainant is “not going to get a job up here”because of the “stunt she pulled” with the CC. 12) In Jul 08, the applicant non-selected the complainant tofill the AGR vacancy announcement. Reprisals against military members for making protecteddisclosures are prohibited under 10 USC Section 1034. Department of Defense Directive (DODD) 7050.06, MilitaryWhistleblower Protection, and AFI 90-301, Inspector General Complaints Resolution, provide standards and criteria to evaluate allegations of reprisal. AFI 90-301, requires theanswering of four questions (known as the “Acid Test”) whenanalyzing a reprisal complaint. The questions/answerspertaining to this ROI are as follows: 1) Did the member make or prepare a communication protected bystatute, DoD Directive, or AFI 90-301? ANSWER: YES 2) Was an unfavorable personnel action taken or threatened, orwas a favorable action withheld or threatened to be withheld following the protected communication? ANSWER: YES 3) Did the official responsible for taking, withholding, orthreatening the personnel action know about the protectedcommunication? ANSWER: YES 4) Does the evidence establish that the personnel action wouldhave been taken, withheld or threatened if the protectedcommunication had not been made? ANSWER: NO On 4 Jun 10, Department of Defense Inspector General (DoD-IG)concurred with the SAF/IG conclusion that the applicant didreprise against the complainant by not selecting her for the AGRposition in violation of 10 USC Section 1034. On 16 Jul 10, the applicant received a LOR from the CC forimproperly retaliating against the complainant in violation ofthe very laws and Air Force regulations he was duty-bound tofollow and uphold. On 9 Sep 10, the applicant provided written matters in responseto the LOR. He apologized for his errors in this matter andtook full responsibility for the decisions he made. He indicated that his intent was to select the best qualifiedofficer with command experience. He never intended to slightany AGR member or any particular career field. On 5 Oct 10,after consideration of all matters, the CC decided the LORshould remain in effect. On 4 Sep 12, the applicant requested SAF/IG reopen the investigation, making similar allegations to the matter under review. Among his many contentions, he argued that the Investigating Officer failed to interview the CC, whose testimony would have been crucial to a fair and thoroughinvestigation. In support of his request, the applicantprovided a copy of an affidavit from the CC, a copy of which wasalso provided in support of his application to the AFBCMR. The applicant’s remaining arguments were as follows: 1) He did not know about the protected communication (personalletter from the complainant to the CC, therefore, therecould be no reprisal. 2) He was not the selecting official for the position inquestion; the CC was. Since he knew about the protectedcommunication and selected another officer, this can onlymean the complainant was not the best officer for the job.That was his conclusion as well, and the affidavit providedby the CC substantiates this point. 3) The command went through a fair and thorough selectionprocess and selected the best candidate for the AGR position. Two of the four witnesses cited in ROI agreedwith the selection at the time, as did the CC and severalother senior officers. 4) He was a NAF/CC from the time the ROI was released until Sep11, and did not have time to dispute the ROI. Since that time, he appealed the investigation with DoD-IG and wasunsuccessful twice. Their only recommendation was for himto appeal through the AFBCMR. On 5 Sep 12, SAF/IG acknowledged the applicant’s 4 Sep 12 emailrequest, promising him a review of his file and an assessment ofwhat he presented in the email. On 10 Oct 12, SAF/IG advised the applicant that based on an exhaustive review of the facts and circumstances of the applicant’s case, to include the new and material evidenceprovided (affidavit from the CC), they were not convinced thatthe original outcome of the investigation should be disturbed. On 13 Aug 13, the Acting Secretary of the Air Force havingdetermined the applicant did serve satisfactorily in the gradeof major general (O-8) within the meaning of Section 1370(d),Title 10, U.S.C., directed he be transferred to the RetiredReserve in the grade of major general. On 15 Dec 14, the AFBCMR provided Counsel with copies of aSAF/GC legal opinion pertaining to the Board’s ability to correct Inspector General and other investigative records aswell as a copy of the applicant’s appeal to SAF/IG for reconsideration and the noted response for review and commentwithin 30 days (Exhibit F). As of this date, no response hasbeen received by this office. AIR FORCE EVALUATION: AF/REG did not provide a recommendation; instead they reiteratedtheir responsibility as the Air Force Reserve Senior LeaderManagement office for the assignment and retirement actions ofall Air Force Reserve general officers, including the applicant.They further stated that in response to the 4 Jun 10 DOD-IG concurrence with the SAF/IG ROI finding that the applicantreprised against the complainant, a review of the applicant’scase file resulted in the CC at that time issuing the applicanta LOR. A complete copy of the AF/REG evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through counsel, the applicant refutes the AF/REG advisory,stating that is does not well serve the Board, the integrity ofthe process, nor him. The advisory is asking the Board, ineffect, to add its concurrence to SAF/IG, DoD IG, and AFRC/CC,all because they are who they are. A house of cards has been built; it rests on a ROI that they have shown is not onlyunworthy of hosannas (praise), but which brings into seriousquestion both the fairness accorded the applicant in the investigatory process and the judgment of the investigatingofficer. He humbly asks the Board to right the wrong associatedwith the findings of the ROI substantiating reprisal and, bycorrecting the record, remove the stain unfairly placed on hiscareer and reputation. Counsel’s complete response is at Exhibit E. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided byexisting 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 the ROI was fatally flawed because the IO didnot obtain evidence from the central figure in the case, thecommander, who provided the extension of the complainant’s dateof separation (DOS) following her personal appeal, and also thehiring authority for the AGR vacancy position in this matter.He argues that he did not withhold a personnel action againstthe complainant for a protected communication between her andthe commander. Additionally, he refutes the IO’s analysis ofthe four “acid test” questions used to determine the abuse ofauthority resulting in reprisal actions, and the IO’s accusations of inconsistent hiring practices supporting reprisalactions. The presumption of regularity in the conduct ofgovernment affairs dictates that, absent evidence to the contrary, it should be presumed that the SAF/IG ROI substantiating the alleged reprisal actions against the applicant was appropriate to the circumstances and was carriedout in accordance with the governing regulations. While the applicant did not present any evidence that was not previouslyconsidered by the SAF/IG, consideration of this Board, however,is not limited to the events which precipitated the ROI findings. In this respect, it may base its decision on mattersof objectivity rather than simply on whether rules and regulations which existed at the time were followed. Under this broader mandate, and after careful consideration of all thefacts and circumstances of applicant's case, we are persuadedcorrective action is warranted based on objectivity in theinterest of justice. The applicant contended the SAF/IG ROI was fatally flawed because the IO did not obtain evidence from the central figure,the commander responsible for hiring the individual for the AGRvacancy in this matter that clearly would have compelled adifferent conclusion. In his 23 Feb 12 sworn affidavit the commander expounded on the deliberations and thought processesinvolved in the hiring of the individual for the AGR vacancy; hegave guidance to put special emphasis on placing colonel (O-6)selects (overabundance at the time) while simultaneously takinga hard look at extending current O-6s. The complainant wasalready on an extension of her DOS and her selection would haverequired yet another extension, running counter to his aforementioned guidance. He opined that he would not haveplaced the complainant in the AGR vacancy position because she wasn’t the right officer for that job, and that never in his conversations with the applicant on this matter was there anymention of reprisal of retaliation against the complainant.Furthermore, the applicant’s counsel argued that the failure tointerview the key witness in the case; the commander responsiblefor hiring the individual for the AGR vacancy in this matter aswas requested by the applicant, is inexplicable and unjustifiable, and even standing alone would warrant correctiveaction. In this respect, we agree with the applicant andcounsel and find the IG ROI conclusory. In his written statement to the Board, the applicant reiteratedthe portion of his testimony to the IO that it was brought tohis attention the complainant had made a personal appeal to thecommander; however, he was unaware of what was in that personalappeal, but he admitted having a negative opinion of the complainant based on the fact she had gone around the established appeal process for adverse board decisions and received special treatment. While we note the DoD-IG originallyapproved the SAF/IG report, subsequently conducted their ownreviews, and SAF/IG conducted two additional reviews of theirown, all reaffirming the key findings made by the investigatingofficer, substantiating the allegation of reprisal; we are notconvinced the applicant reprised against the complainant by notselecting her for the AGR position in this matter. In this respect, the Board analyzed the individual elements of thereprisal acid test; while there were disagreements with elementsone through three; we concluded that element four was notsatisfied, in that the complainant would not have been selectedfor the AGR vacancy position even if she had not made theprotected communication (personal appeal). The rationale for that conclusion is primarily in the form of the rack-and-stackcandidate listing prepared by someone other than the applicantthat established another AGR member as the leading candidate.Additionally, the commander responsible for hiring the individual for the AGR vacancy position in this matter in hissworn affidavit indicated he would not have placed the complainant in that position because she was not the rightofficer for this job. For those who thought that the applicantwas looking for any excuse to avoid selecting the complainant,he could have done so very easily by selecting the leadingcandidate, but did not do so. In the applicant’s 8 Sep 10written response to the LOR, he reiterated that he applied well-reasoned criteria, consistent with past hiring procedures indetermining that the #5 candidate on the rack-and-stack listmost closely fit the command senior leadership’s desire and needof a commander’s perspective and input into the AGR process.The candidate selected was a graduated group commander and camehighly recommended by his wing commander and career field functional leader. Prior to announcing the selected candidate,the applicant discussed the proposal to hire the #5 candidatewith the commander and received his approval to do so. To address the ROI finding that the applicant was inconsistent inhis hiring actions by not interviewing candidates for the AGR vacancy position; in his testimony, the applicant offered thathe did not incorporate “interviewing of candidates” into hishiring process techniques until after the matter in question,when he became the NAF/CC. While we note that the ROI determined that the selection process of this AGR VacancyAnnouncement was not accomplished in a procedurally correctmanner and the applicant’s decision to not interview any of thecandidates was inconsistent with his actions during recent hiring opportunities; the evidence presented convinces us thatthe applicant and the commander believed the #5 candidate onrack-and-stack list selected for this position gave them thecommand experience dimension they wanted to bring to this headquarters position. The Board finds these facts and circumstances persuasive and the evidence sufficient to concludethe IO was predisposed to a preconceived outcome to the investigation. The IO failed to pursue any exculpatoryinformation which would have confirmed the facts as related bythe applicant. Therefore, in the interest of justice, werecommend the applicant’s records be corrected to the extentindicated below. 4. The applicant’s case is adequately documented and it has notbeen shown that a personal appearance with or without counselwill materially add to our understanding of the issues involved.Therefore, the request for a hearing is not favorablyconsidered. 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 Letter of Reprimand rendered 16 July 2010 be declared void and removed from his records. The following members of the Board considered AFBCMR DocketNumber BC-2014-01223 in Executive Session on 2 Mar 15 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-2014-001223 was considered: Exhibit A. DD Form 149, dated 17 Feb 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AF/REG, dated 6 May 14, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 7 Oct 14. Exhibit E. Letter, Counsel, dated 20 Oct 14. Exhibit F. Letter, AFBCMR, dated 15 Dec 14, w/atchs.