RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03425 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her records be corrected to reflect the following relief based on being the victim of reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, dated 23 July 2007, and 10 U.S.C. § 1034: Her Letter of Counseling (LOC) dated 21 January 2014 be removed from her records. She be reinstated to the grade of Technical Sergeant (TSgt, E-6). APPLICANT CONTENDS THAT: On 20 January 2014, in two Memorandum for Record (MFRs) to her commander she documented patient safety concerns and actions that made her uncomfortable. The LOC was an act of reprisal for using her chain of command to advise of the actions that made her uncomfortable. Revoking the LOC would prevent its use in the vacation of her suspended Nonjudicial Punishment (NJP) and the reduction to the grade of Staff Sergeant (SSgt, E-5). She has addressed this issue through her squadron and group chain of command and the base Inspector General (IG) with no resolution. In support of her requests, the applicant provides copies of letters to her commander dated 20 January 2014, LOC dated 21 January 2014, a letter from the 455th Expeditionary Medical and Dental Operations Squadron Commander (455 EMDOS/CC) dated 7 March 2014, and AF Form 366, Record of Proceedings of Vacation of Suspended Nonjudicial Punishment, dated 19 February 2014. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is currently serving in the Regular Air Force in the grade of SSgt. According to AF Form 3070A, Record of Nonjudicial Punishment Proceedings (AB thru TSgt), dated 22 August 2013, the applicant received an Article 15, in violation of Article 92, Uniform Code of Military Justice (UCMJ) for dereliction in the performance of her duties in that she willfully failed to refrain from having an unprofessional relationship. The applicant was reduced to the grade of SSgt, suspended through 26 February 2014. On 21 January 2014 while deployed to Afghanistan the applicant received a LOC for failure to follow a direct order from her flight chief in violation of Article 92 of the Uniformed Code of Military Justice. According to AF Form 366 dated 19 February 2014, the applicant’s suspended punishment was vacated for violating the conditions of the suspension by failing to obey a lawful order while deployed. Consequently, she was reduced to the grade of SSgt with a Date of Rank (DOR) of 27 August 2013 and effective date of 26 February 2014 due to violation of Article 92 for failure to obey a lawful order. In an e-mail dated 17 October 2014, SAF/IG advised the AFBCMR staff that there was no SAF or DOD IG investigation on file. SAF/IG located documentation regarding a complaint; however, it was referred to the command and no action was taken. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s requests as they cannot find any clear injustice, error or good reason to reverse or otherwise change the commander’s decisions with respect to the NJP or vacation action. The applicant does not make a compelling argument that the Board should overturn the commander’s vacation action on the basis of an injustice. She was put on notice of the basis for the vacation proceedings when she was served the AF Form 366 on 19 February 2014. On 24 February 2014, after consulting with an attorney, the applicant submitted a response and requested a personal appearance with her commander. On 26 February 2014, her commander found she violated the conditions of her suspension and vacated the suspension. The commander’s ultimate decision on the vacation action is firmly based on the evidence of the case, to include her own statement she submitted to the commander in her response to the LOC which states, “I realize that there were a number of actions that I could have taken to mitigate the problems and resulted in a better outcome.” The decision to vacate the suspended portion of the NJP action by her leadership was fitting, appropriate and just. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSIM recommends denial of the request to remove the LOC. DPSIM states they can only discuss if proper procedures were followed in the administration of the action. After careful review, it was determined the LOC was properly administered In Accordance With (IAW) AFI 36-2907, Unfavorable Information File (UIF) Program, paragraph 3.5. The person who initiates a Record of Individual Counseling (RIC), LOC, Letter of Admonishment (LOA) or Letter of Reprimand (LOR) may send it to the member’s commander for information, action or for their approval for file in the UIF or Personal Information File (PIF). A complete copy of the AFPC/DPSIM evaluation is at Exhibit E. AFPC/DPSOE recommends denial of the applicant’s request to be reinstated to the grade of TSgt based on the recommendations of DPSIM and JAJM to deny the removal of the LOC and vacation of the NJP. A complete copy of the AFPC/DPSOE evaluation is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She submitted two MFRs notifying the flight commander, about inappropriate workplace practices by the flight chief, such as kissing airmen on the forehead and group hugs, in addition to describing the incident with a patient collapsing. She felt uncomfortable and concerned about events in the work environment and used her chain of command to route these concerns. She believes the LOC given the following day was out of retaliation by the flight chief for submitting the MFRs. She requested a meeting with her group commander and explained the situation and the events surrounding her deployment. In further support of her requests the applicant provides copies of a letter from the 455 EMDOS/CC dated 7 March 2014 and SF 600, Chronological Record of Medical Care, dated 24 January 2014. The applicant’s complete submission, with attachments, 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 error or injustice to warrant removing the contested LOC from the applicant’s record or to reinstate her to the grade of TSgt. We note the applicant alleges that she has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 U.S.C. § 1034). While we note the applicant filed an IG complaint, the evidence reflects that it was returned to her command with no action taken. Nevertheless, we reviewed the evidence of record to reach our own independent determination of whether reprisal occurred. Based on our review, we do not conclude the applicant has been the victim of reprisal. The available evidence reflects the reason for the LOC dated 21 January 2014, was due to her failure to obey a lawful order which ultimately led to the vacation of her NJP and reduction to the grade of SSgt. The applicant has not established that the LOC or other actions were rendered in retaliation to making a protected communication. The LOC appears to comply with the governing AFI and we find no evidence to indicate that the decision to issue the LOC was inappropriate. Therefore, it is our determination the applicant has not been the victim of reprisal based on the evidence of record in this case. Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt the rationale expressed as the basis for our decision the applicant has failed to sustain her burden of proof of having suffered either an error or injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2014-03425 in Executive Session on 6 August 2015 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-03425 was considered: Exhibit A. DD Form 149, dated 6 August 2014, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. E-mail, SAF/IG, dated 17 October 2014 (Withdrawn). Exhibit D. Memorandum, AFLOA/JAJM, dated 13 February 2015. Exhibit E. Memorandum, AFPC/DPSIM, dated 1 April 2015. Exhibit F. Memorandum, AFPC/DPSOE, dated 12 May 2015. Exhibit G. Letter, SAF/MRBR, dated 18 May 2015. Exhibit H. Letter, Applicant, dated 17 June 2015, w/atchs.