RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-03302

XXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING: NO

APPLICANT REQUESTS THAT:

Her enlisted performance reports (EPRs) for the reporting periods ending 30 Nov 14 and 30 Sep 16 be removed based on substantiated allegations of reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, and 10 U.S.C. § 1034.   

APPLICANT CONTENDS THAT:

The EPRs do not reflect her performance.  The Air Force Recruiting Service Inspector General (AFRS/IG) and the commander directed investigation (CDI) substantiated her complaints regarding the incidents, which occurred prior to the completion of her 2014 EPR.   She received a letter of counseling (LOC) for failing to use her chain of command by contacting her commander, who had an open door policy, after her supervisor attempted to assault her.  Her duty hours were extended and she sought mental health treatment due to the hostile work environment.  

On 1 Oct 14, her supervisor decided to conduct a feedback session and asked her to submit EPR bullets no later than 8 Oct 14.  She expressed concern she had not received an initial feedback and only had 7 days to meet his expectations.  She subsequently received an overall “4” EPR rating.  

She received a letter from her group commander with the results of the CDI.  As a result of the substantiated complaints, a change of reporting official (CRO) was completed and she received a new rater.  Her EPR due 30 Sep 15 was closed out without any issues. 

In Jul 16, she was assigned a new rater who previously worked for her former supervisors.  She then received a 2016 EPR with several blocks marked down and was told by her rater he was directed to provide the ratings because of the overall “4” EPR she had received previously.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a master sergeant in the 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.  

On 9 Nov 14, the applicant filed an IG complaint alleging her operations flight chief reprised against her in violation of 10 U.S.C. § 1034 when he issued her a letter of counsel (LOC) for an altercation with her supervisor on 19 May 14 and failure to utilize her chain of command by directly contacting the commander.  

The applicant’s EPR rating for the period of 11 Jun 14 to 30 Nov 14 was “4-Above Average.” The EPR includes no promotion recommendation and states “continue to groom.”   

On 29 Jun 15, after reviewing the CDI,  the 369th Recruiting Group Commander (369 RCG/CC) advised the applicant he confirmed her supervisor between on or about 1 Aug 13 to 31 Oct 14 unlawfully discriminated, harassed, or intimidated her based on race, color, religion, national origin, age, disability, reprisal or sexual orientation.    He also confirmed  her supervisor on or about 1 Aug 13 and on or about 31 Oct 14 maltreated her, a person subject to his orders by displaying fits of anger, making inappropriate jokes, charging at her and extending her duty hours.  However, there was nothing to suggest the operations flight chief intended to prohibit her from receiving medical attention or deliberately required her to make false statements.  He stated action was taken regarding the substantiated allegations and corrective measures were put in place.  

The applicant’s EPR rating for the period of 1 Dec 14 to 30 Sep 15 is “Exceed most, if not all expectations.”  

Her EPR rating for the period of 1 Oct 15 to 30 Sep 16 is “Exceeded some, but not all expectations.” 

On 5 Dec 17, the applicant submitted an application to the evaluation reports appeals board (ERAB) for removal of her 30 Nov 14 EPR, which was denied.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit E.

AIR FORCE EVALUATION:

AFPC/DP3SP recommends denial.    The applicant submitted an ERAB application for removal of the Nov 14 EPR which was denied.  An ERAB application was not submitted to void the Sep 16 EPR.

The applicant filed an IG complaint regarding the hostile work environment and LOC she received.  A CDI was initiated because of the IG complaint and the CDI substantiated her supervisor discriminated and maltreated her creating a hostile work environment.  However, the allegations against the flight chief who was the rater on her 2014 EPR for hostile work environment and falsifying documents, in reference to the feedback form, were unsubstantiated.  She contends she did not receive an effective feedback, which led to an overall rating of “4-above average.”  However, the feedback or lack thereof is not by itself sufficient to challenge the accuracy or validity of an evaluation as it cannot be determined whether the applicant met or exceeded the expectations set forth by the rating chain.  Additionally, the lack of counseling or feedback must directly result in an unfair evaluation.  

With regard to her 2016 EPR, the applicant contends her rater was directed to provide the ratings as annotated.  However, there is no documentation to substantiate an error or injustice in her 2016 EPR.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 15 May 18 for comment (Exhibit F).  In an e-mail dated 12 Jun 18, she states the specific reason for her request is not driven solely on the lack of feedback, which was one of many injustices she faced during this period.  The Board should consider the entire scenario of events from Aug 13 to Sep 16.  The facts remain she never stood a chance once she submitted her IG complaint.  She received a LOC for contacting her first sergeant when she feared for her safety.  Her chain of command received two letters from a mental health specialist recommending she be removed from the hostile work environment.  Prior to this encounter she was very successful and her EPRs reflect this.  This is more than just a mark down or a “4” EPR to her.  She has moved on to her current assignment and is on the path to success; however, this period is a constant reminder of the personal despair she endured.  The applicant’s complete response is at Exhibit E.  

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.  After thoroughly reviewing all Exhibits, it is the Board’s opinion the applicant is the victim of an error or injustice.  We note AFPC/DP2SPE recommends relief should be denied; however, we disagree.  The evidence clearly substantiates the applicant was the victim of a hostile work environment.  The IG, CDI and the 369 RG/CC substantiated workplace discrimination and harassment to warrant removal of her 30 Nov 14 EPR.  Although it appears the applicant did not exhaust administrative remedy by submitting an ERAB application for removal of her 30 Sep 16 EPR, the evidence clearly substantiates she was the victim of a hostile work environment and the 30 Sep 16 EPR was tainted by the new rater’s knowledge of her 30 Nov 14 EPR.  In view of this, we find it in the interest of justice to grant the applicant’s request for removal of both the contested reports.    Therefore, the Board recommends correcting the applicant’s records as 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:

	a. AF Form 910, Enlisted Performance Report (AB thru TSgt), for the reporting period of 11 Jun 14 to 30 Nov 14 be void and removed from her records and replaced with an AF Form 77, Letter of Evaluation which states “Not rated for the above period.  Evaluation was removed by Order of the SecAF.”  

	b. AF Form 911, Enlisted Performance Report (MSgt thru SMSgt), for the reporting period of 1 Oct 15 to 30 Sep 16 be void and removed from her records and replaced with an AF Form 77, Letter of Evaluation which states “Not rated for the above period.  Evaluation was removed by Order of the SecAF.”  

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-2017-03302 in Executive Session on 26 Jun 18:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 5 Jul 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, dated 13 Nov 17.  
Exhibit D.  Applicants ERAB application, dated 5 Dec 17.  
Exhibit E.  Advisory, AFPC/DP3SP, dated 1 May 18.
Exhibit F:	Notification of Advisory, SAF/MRBC to applicant, dated 15 May 18.  
Exhibit G.  Applicant’s response, dated 12 Jun 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.