RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-01229

	COUNSEL:	 

  	HEARING: YES

APPLICANT REQUESTS THAT:

His records be corrected as follows based on allegations of reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, and 10 U.S.C. § 1034: 

	His letter of reprimand (LOR) dated 29 Jun 15 be void and removed from his record. (Already Removed).

	His referral officer performance report (OPR) for the reporting period of 4 Mar 15 to 3 Mar 16 be void and removed from his record.   

APPLICANT CONTENDS THAT:

Counsel, on behalf of the applicant, states the LOR and referral OPR were in direct violation of the Whistleblower’s Protection Act and based on comments he made during an inspector general (IG) complaint.  His chain of command wrongly interpreted his comments to be false.

On 6 Apr 15, he filed a complaint with the IG alleging his division chief had engaged in unprofessional and inappropriate behavior.  As a result, a commander directive investigation (CDI) was initiated.  The applicant provided specific examples of her behavior to the investigating officer (IO).  

On 29 Jun 15, he was given a LOR for allegedly making false official statements in violation of the Whistleblower’s Protection Act.  The LOR explicitly cited two statements he made were false.

As a result of the LOR, he filed another IG complaint with the Secretary of the Air Force Secretary of the Air Force (SAF) IG alleging reprisal and that he was improperly punished based upon protected communication in his original IG complaint.

SAF/IG determined the adverse actions taken against him did not constitute reprisal under Whistleblower laws since the adverse actions were not the result of his protected communication.  They further determined the wing commander did not abuse his authority in issuing the LOR.  There was no further analysis provided but in the applicant’s conversations with the SAF/IG office, he was told they did not want to conduct an actual investigation because the wing commander was due to retire soon and an investigation could hinder his retirement date.  Thus, the inspector explained that the investigation was solely for “abuse of authority.”

His chain of command attempted to bypass the protections of the Whistleblower’s Protection Act in concluding his statements were false and used the statements as the basis for derogatory administrative action against.  This is unjust and represents abuse of the law and policy.   The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a captain in the Regular Air Force.

Per 10 U.S.C. § 1034 and AFI 90-301, Inspector General Complaints Resolution,  reprisal against military members for making protected disclosures is prohibited.  

Applicant provides a copy of a LOR dated 29 Jun 15.  The LOR states he made false official statements to the IO for a CDI in violation of Article 107, Uniform Code of Military Justice (UCMJ).   He stated in his response dated 6 Jul 15 that he had kept a log of concerns and observations over several months.  He understood how his recall of events that occurred several months earlier was interpreted as a fabrication or false statement; however, it is likely that no one else had kept a log.  

The applicant received a referral OPR for the reporting period of 4 Mar 15 to 3 Mar 16.  The reason for the referral OPR was a LOR and UIF for providing false statements to an IO while testifying under oath.  

The applicant provides a letter dated 24 Oct 16 from SAF/IGS, which advised him they had completed their inquiry into his complaints dated 19 Oct 15, 11 Jan 16, 4 Jun 16 and 7 Sept 16 alleging misconduct on the part of his leadership.  It was determined the adverse actions taken against him did not constitute reprisal under Whistleblower laws since the adverse actions were not taken as a result of his protected communication.  The DOD IG agreed with the determination and closed that aspect of the complaint.  SAF/IGS also reviewed whether his former wing commander abused his authority by giving him an LOR for false statements made during a CDI and whether members of his leadership chain abused their authority for issuing a referral OPR.  The inquiry determined his leadership’s actions were within their authority and based on relevant factors.  The applicant’s case was closed since there was no basis for further IG involvement.    

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory opinions at Exhibits C and D.

AIR FORCE EVALUATION:

AFPC/DP2SSM recommends denial for removal of the LOR due to insufficient evidence.  There is also no action required to remove it from the applicant’s record because it no longer exists.  The commander had the authority to issue the LOR in accordance with AFI 36-2907, Unfavorable Information File (UIF). Furthermore, a review of the applicant’s record shows no LOR has been filed in his officer selection record (OSR).  The applicant’s UIF would have been due to expire two years after the LOR issued date.  Therefore, the UIF would have been destroyed on or about the final disposition date of 6 Jul 17 per AFI 36-2907.  The complete advisory is at Exhibit C.

AFPC/DP2SPE recommends denial for removal of the referral OPR for the period of 4 Mar 15 to 3 Mar 16.  The applicant should exhaust all available avenues of administrative relief prior to seeking correction of his records.  In accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems, the Evaluation Report Appeals Board (ERAB) was established to provide Air Force personnel with an avenue of relief for correction of evaluations at the lowest possible level.  An applicant’s second and last avenue of relief is via the AFBCMR.  If the administrative appeal is not successful, the applicant may resubmit the DD Form 149, Application for Correction of Military Records, to the AFBCMR.  The complete advisory is at Exhibit D.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 23 Mar 18 comment (Exhibit E), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant has not exhausted all available avenues of non-judicial relief before applying to the Board.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We note SAF/IGS advised the applicant on 24 Oct 16 they found no evidence the adverse actions taken against him constituted reprisal under 10 U.S.C. § 1034.  While the applicant contends the SAF/IG investigator told him an investigation was not conducted to preclude holding up his commander’s projected retirement, other than his own uncorroborated assertions, we find no evidence this to be the case.  With respect to the request for removal of his LOR dated 29 Jun 15, as pointed out by AFPC/DP2SSM, the LOR is not in the applicant’s ARMS record and his UIF would already have been destroyed based on the disposition date per AFI 36-2907. In view of this, we find there is no further action required by the Board for the removal of the LOR.  With respect to his request for removal of his referral OPR for the period ending 3 Mar 16, the applicant has not exhausted available administrative relief by submitting his request to the ERAB prior to submitting his application to the AFBCMR as required.  Therefore, we find his request for removal of the referral OPR is not ripe for adjudication by this Board at this time.  In view of the above. The Board recommends against correcting the applicant’s records.  

4.  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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed all available avenues of administrative relief have not been exhausted, and the application will only be reconsidered upon receipt of documentary evidence indicating that such avenues of administrative relief have been exhausted.

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-01229 in Executive Session on 5 Jun 18:

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 18 Feb 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSM, dated 14 Nov 17. 
Exhibit D. Advisory opinion, AFPC/DP3SP, dated 10 Jan 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 23 Mar 18.  

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.