RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04431 XXXXXXXXXX COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. Coordination Information comments annotated by the commander who reprised against him be removed from his Reserve Officer Development Plan (R-ODP) dated 3 May 2012. 2. The Letter of Counseling (LOC) dated 3 May 2012, be removed from his records. (The applicant withdrew this request and will pursue administrative remedies) 3. His Officer Performance Report (OPR) for the period 3 December 2010 thru 2 December 2011, be altered to remove the rater’s “feedback” comment and the last lines in blocks IV and V. (The applicant withdrew this request and will pursue administrative remedies) APPLICANT CONTENDS THAT: His commander issued him an LOC and wrote less than positive comments on his R-ODP and downgraded his OPR’s bottom line endorsement while inserting a veiled derogatory statement in the performance feedback block. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to information extracted from the Automated Records Management System (ARMS), the applicant is currently serving in the Air Force Reserve in the grade of lieutenant colonel (O-5). In a letter digitally signed on 22 August 2014, the Whistleblower Reprisal Investigations Directorate, Department of Defense (DoD) Inspector General (IG,) completed an oversight review of the applicant’s reprisal allegations in accordance with Title 10, United States Code, Section 1034 (10 USC, § 1034), Protected communications; prohibition of retaliatory personnel actions, as implemented by DoD Directive 7050.06, Military Whistleblower Protection. The investigation addressed and substantiated the following allegations of reprisal. Allegation 1: The Mission Support Group, (MSG) commander reprised against the applicant for making a protected communication to his chain of command by relieving him of command of the Force Support Squadron, in violation of 10 USC, § 1034, as implemented by AFI 90-301, Inspector General Complaints Resolution. FINDING: Substantiated. Allegation 2: The MSG commander reprised against the applicant for making a protected communication to his chain of command by making less positive comments in his R-ODP, in violation of 10 USC, § 1034, as implemented by AFI 90-301. FINDING: Substantiated. Allegation 3: The MSG commander reprised against the applicant for making a protected communication to his chain of command by issuing him an LOC dated 3 May 2012, in violation of 10 USC, § 1034, as implemented by AFI 90-301. FINDING: Substantiated In a letter dated 24 June 2015, SAF/MRBR advised the applicant that AFI 36-2603, Air Force Board for Correction of Military Records, requires that if an applicant has not exhausted all available effective administrative remedies, the application will be denied by the Board on that basis. The applicant failed to exhaust other administrative avenues of relief prior to requesting relief from the Board which is the highest administrative level of appeal in the Air Force. SAF/MRBR invited the applicant to administratively close his case until such time that he is able to avail himself of the administrative avenues described in the ARPC/DPTS advisory opinion. In an email dated 9 July 2015, the applicant withdrew his requests to remove the LOC dated 3 May 2012, from his records and to alter the OPR for the period ending 2 December 2011. AIR FORCE EVALUATION: ARPC/DPTS recommends denial of the applicant’s request to remove the LOC from his records. ARPC only has oversight and control of records located in the Automated Records Management System (ARMS), and there is no evidence of an LOC in ARMS. Therefore, he should seek administrative remedy with the issuing unit. DPTS also recommends denial of the applicant's request to remove the rater's feedback comment and the last bullets in sections IV and V of his 2 Dec 11 OPR since no error or injustice could be identified therein. DPTS recommends the applicant submit his requests to correct his evaluation to the Evaluation Report Appeals Board (ERAB). Notwithstanding the above, DPTS recommends approval of the applicant’s request to remove the comments from the applicant’s R-ODP dated 3 May 2012, based on the IG report substantiating that he was reprised against for making a protected communication to his chain of command. A complete copy of the DPTS evaluation, with attachments, is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In an email dated 9 July 2015, the applicant withdrew his requests to remove the LOC dated 3 May 2012 and to alter the OPR for the period ending 2 December 2011 and stated he would purse administrative remedies. The applicant’s complete response is at Exhibit E. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice with respect to the applicant’s request to remove the comments annotated by his commander on the R-ODP. The applicant alleges that he has been a victim of reprisal for making a Protected Communication (PC) and has not been afforded full protection under the Whistleblower Protection Act (Title 10 U.S.C. § 1034). Based on this, he is requesting corrective actions as noted in his appeal to the Board. Having carefully reviewed this application, we agree with the recommendation of the Air Force office of primary responsibility and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of either an error or an injustice. We also note the applicant initially requested the LOC dated 3 May 2012, be removed from his records. However, based on the SAF/MRBR letter dated 24 June 2015 inviting the applicant to administratively close his case until such time he was able to avail himself of the administrative avenues, the applicant withdrew his request. However, based on the substantiated reprisal against the applicant for making a PC resulting in the LOC, we find it extremely likely that his unit would remove the contested LOC. In the unlikely event the unit declines to remove the LOC, the applicant could reapply to the AFBCMR. While the OPR states there is no evidence of an LOC in ARMS and the applicant has not exhausted administrative avenues of relief prior to submitting his application to the Board, in the interest of administrative economy and fairness to the applicant, we also recommend removal of any references to an LOC dated 3 May 2012. Accordingly, we recommend the applicant's records be corrected to the extent indicated below. 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 Reserve Officer Development Plan, Coordination Information comments dated 3 May 2012, be amended to read “Coordinator comments removed by direction of the AFBCMR.” The Letter of Counseling issued to him dated 3 May 2012, and any and all documents and references pertaining thereto be declared void and removed from his records. The following members of the Board considered AFBCMR Docket Number BC-2014-04431 in Executive Session on 4 August 2015, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 30 October 2014, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, ARPC/DPTS, dated 17 April 2015, w/atchs. Exhibit D. Letters, SAF/MRBR, dated 24 June 2015 and 30 June 2015. Exhibit E. Email, Applicant, dated 9 July 2015.