RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-00745

XXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.  The Letters of Reprimand (LOR) issued on 18 May 18 and 12 Dec 18 along with the accompanying Unfavorable Information File (UIF) be declared void and removed from his Officer Selection Record (OSR).

2.  Remove any record of the “do not promote” recommendation for the 2018 promotion board.  

APPLICANT’S CONTENTIONS

His 18 May 18 and 12 Dec 18 LORs were based on false accusations and unsubstantiated claims after he elevated safety concerns that involved his command team.  

In detail, the applicant brought up concerns with an enlisted support member who was removed for creating an unsafe environment by being insubordinate and executing substandard clinical performance.  When corrective actions were taken to fix the behavior of the enlisted member, she responded by making false accusations toward the officer(s) that corrected her behavior.  This 
in-turn brought unwanted attention to the medical group command team as the nature of her performance failures were well known and showed an unsafe environment for patient care and could impair nuclear surety.  As such, the command team was concerned that higher leadership would discover that they had in fact been ignoring safety concerns and the tolerating retribution toward the whistleblowers [sic].  In response to the accusations made by the enlisted member, the group commander initiated a Commander Directed Investigation (CDI) that was unethical and ignored the accuser’s history of making false accusations.  He believes the CDI and the resulting 18 May 18 LOR was designed to identify a “scape goat” and shift attention away from the true nature of the problem.  

In reference to the LOR dated 12 Dec 18, it appears that the culture of reprisal continued with his new group commander as it was issued shortly after he admitted that he had engaged in protected communication with the IG, Congress and the BCMR.  

While these investigations appear to display a picture of him that would warrant multiple LORs, they lack any credible or verifiable evidence.  

In support of his appeal, the applicant provides a memorandum with 12 Exhibits that demonstrate how the CDI results, were known to be false and still used by his command to justify the first LOR and how the second LOR was an additional act of reprisal for identifying safety issues.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an active duty Air Force major (O-4).

On 4 Apr 18, the medical group commander appointed an Investigating Officer (IO) to conduct an investigation into allegations of misconduct involving the applicant.  The investigation was conducted from 4 Apr 18 to 27 Apr 18.  The IO conducted an analysis of the evidence, and determined not all allegations were substantiated:

Allegation 1:  On divers occasions between on or about 1 Dec 16 to present [sic], the applicant, violated AFI 36-2706, by failing to maintain a work environment free from harassment, intimidation, belittling, and other disruptive behavior.

Finding: Not Substantiated.  

Allegation 2:  On divers occasions between on or about 1 Dec 16 to present [sic], the applicant abused his power by manipulating his work schedule in a manner to avoid seeing patients or attending meetings.

Finding: Substantiated.

Allegation 3:  On divers occasions between on or about 1 Dec 16 to [sic], the applicant put patient safety at risk by refusing to see walk-in patients that came into the clinic either outside of regular appointment hours or without a previously scheduled appointment.

Finding: Substantiated. 

Allegation 4:  Between on or about 1 Mar 17 and 15 Mar 17, the applicant made a false official statement, to wit: statements in an email to [a fellow military member] regarding patient safety violations, that led to [a civilian] to receive a failing appraisal and be placed on a Performance Improvement Program in accordance with AFI 36-1001.

Finding: Substantiated.

On 19 May 18, the wing judge advocate (JA) conducted a legal review of the IO’s findings and found it legally sufficient.  The JA concurred with the conclusions that allegation 1 was unsubstantiated and allegations 2 and 4 were substantiated; however disagreed with the IO that allegation 2 was substantiated because the evidence did not support that the applicant abused his authority when scheduling patients.  

On 18 May 18, the applicant’s group commander issued him a LOR for three separate occasions of conduct unbecoming an officer due to inappropriate comments; abuse of authority on various occasions by “belittling subordinates, making demeaning comments, and speaking to technicians as if they were untrained in their field;” and for dereliction in duty when he manipulated work schedules in a manner to avoid seeing patients or attending meetings.  

On 6 Jun 18, the applicant’s commander considered the applicant’s response to the LOR and decided to maintain the LOR in his records. 

On 6 Jul 18, the applicant received a referral OPR for period of report 2 May 17 thru 29 Jun 18.   As noted in Section IX, Referral Report, the report was referred for the reasons mentioned in the 18 May 18 LOR.  

On 24 Jul 18, the applicant was notified by memorandum of his group commander’s intent to place the LOR in his OSR and on 10 Aug 18, he delayed his recommendation to place the LOR into his OSR until the applicant received the results Freedom of Information Act (FOIA) request.

On 14 Sep 18, the applicant responded to the OSR memorandum indicating that he was innocent of all the allegations and stated that the investigation was flawed and showed clear signs of bias.    

On 30 Oct 18, the applicant’s wing commander considered his response and decided to file the LOR in the applicant’s OSR.  

On 12 Dec 18, the applicant’s group commander issued the applicant a LOR for sending an e-mail that discussed Protected Health Information in direct violation of the Health Insurance Portability and Accountability Act (HIPAA). 

On 20 Dec 18, the applicant’s commander considered the applicant’s response to the LOR and decided to maintain the LOR in his records. 
 
On 9 Jan 19, the applicant was notified by memorandum of his commander’s intent to place the LOR in his OSR.  

On 9 Jan 19, the applicant responded to the OSR memorandum and requested the LOR be withdrawn completely.  He also stated that that he disagreed that the email he sent violated HIPAA because the communication was sent for the safety of the member.     

On 30 Oct 18, the applicant’s wing commander considered his response and decided to file the LOR in the applicant’s OSR.

On 5 Aug 19, the applicant received a referral OPR for period of report 30 Jun 18 thru 29 Jun 19.  As noted in Section IX, Referral Report, the report was referred for the HIPAA violation mentioned in the 12 Dec 18 LOR.  

For more information, see the excerpt of the applicant’s record at Exhibit B, the advisory at Exhibit C and the Commander Directed Investigation at Exhibit F.

APPLICABLE AUTHORITY

In accordance with AFI 36-2907, Unfavorable Information File, dated 26 November 2014: 

Paragraph 4.1. Who Can Use Counseling, Admonitions, and Reprimands. Commanders, supervisors, and other persons in authority can issue administrative counseling, admonitions, and reprimands. These actions are intended to improve, correct, and instruct subordinates who depart from standards of performance, conduct, bearing, and integrity, on or off duty, and whose actions degrade the individual and unit's mission. This includes issuing administrative counseling, admonitions, and reprimands to reservists who commit an offense while in civilian status.

Paragraph 4.1.3. Standard of Proof. While no specific standard of proof applies to administrative action proceedings, commanders should utilize the “preponderance of the evidence” standard when evaluating the evidence and every element of the offenses committed. A preponderance of the evidence means simply the greater weight of credible evidence. Whether such proof is available should be considered before initiating the administrative action. If such proof is lacking, administrative action is susceptible to being found to be legally unsupportable and, as a result, could be set aside. There is no requirement to prove any allegation beyond a reasonable doubt.

Paragraph 4.4. LORs. A reprimand is more severe than a counseling or admonition and indicates a stronger degree of official censure. Commanders may elect to file a LOR in an UIF for enlisted personnel. LORs are mandatory for file in the UIF for officer personnel. 4.4.1. For officer personnel only: If a person other than the unit commander issues a LOR, send it to the unit commander for acknowledgment and endorsement via AF Form 1058 and establish/file in an UIF. Include the member’s written acknowledgment and any documents submitted by the member. 4.4.2. The AF Form 1058 does not need to be referred to the officer since the rebuttal opportunity is offered at the time the LOR is administered (see paragraph 4.5.1). The AF Form 1058 is used only to obtain the commander’s acknowledgment of the action (for LORs administered by personnel other than the commander) and to refer the LOR for file in the UIF.

AIR FORCE EVALUATION

AFPC/DP2SSM, recommends denying the application. On 18 May 18 the applicant received an LOR for purportedly engaging in “conduct unbecoming of an officer”, “abuse”, “dereliction of duty”, and “making a false official statement.”  On 12 Dec 18, the applicant received a second LOR for purportedly “violating the Health Insurance Portability and Accountability Act (HIPAA).”  The applicant states these LORs were based on false accusations, unsubstantiated claims and happened shortly after he elevated safety concerns that involved his command team.  However, based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.   The applicant’s commander and supervisor has authority to issue a Letter of Counseling and a Letter of Reprimand IAW AFI 36-2907 paragraph 4.1. IAW AFI 36-2907 paragraph 4.1.3 there is no requirement to prove any allegation beyond a reasonable doubt. 

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 12 Jun 20 for comment (Exhibit D), and the applicant replied on 15 Jun 2020.  In his response, the applicant contends that DP2SSM’s advisory misses the entire point of his submission.  It has nothing to do with the standard of proof or a commander’s authority to administer punishment.  The reason the LORs should be removed is because he is innocent of the accusations against him and the evidence has clearly established this beyond a reasonable doubt. 

The applicant then goes on to highlight the main points of his original application and reiterates that he was denied the right to an objective, competent and unbiased investigation.  

The applicant’s complete response with rebuttal is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSM and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board notes the applicant’s allegation that the Letters of Reprimand (LORs) and the subsequent administrative actions were taken in reprisal against him for making protected communication.  While the Board takes allegations of reprisal seriously, the Board finds that the CDI was legally sufficient and the actions taken by his commander were within his authority.  Therefore, in the absence of persuasive evidence to the contrary, we do not find that the applicant has been the victim of reprisal pursuant to Title 10, U.S.C. Section 1034.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant alleges he has been the victim of a reprisal.  By policy, reprisal complaints must be filed within 60 days of the alleged incident or discovery to facilitate the inspector general (IG) investigation.  As mentioned above, we note the applicant did not file an IG complaint that alleged reprisal and it appears no investigation for reprisal was done.  Nevertheless, based on the authority granted to this Board pursuant to Title 10 U.S.C. Section 1034, we reviewed the complete 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.  While the applicant’s LOR response was a protected communication, the applicant has failed to establish the actions by his commander to uphold the LOR, initiate a UIF, and non-recommend him for promotion are in reprisal for his making the protected communication.  Therefore, in the absence of persuasive evidence to the contrary, the Board does not find that the applicant has been the victim of reprisal pursuant to Title 10, U.S.C. Section 1034.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2019-00745 in Executive Session on 17 Jul 20 and 24 Jul 20:

	, Panel Chair
	, Panel Member
	, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 31 May 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSM, dated 10 Jan 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 12 Jun 20.
Exhibit E:	Applicant’s response, dated 15 Jun 20.
Exhibit F:  Commander Directed Investigation, dated – WITHDRAWN 

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