RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04515

	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The AF Form 418, Selective Reenlistment Program (SRP) Consideration for Airmen, dated 10 Jan 15, be removed from his records.

APPLICANT’S CONTENTIONS

The applicant states the reprisal investigation was conducted improperly and with bias.  None of the documentation he submitted to the investigator was used to rebut the allegations against him.  The Department of Defense (DoD) and Air Force have refused to give him copies of all documents used in the investigation.  He asks the Board to perform a higher-level objective review to provide justice.

In a letter to the Secretary of Defense, dated 3 Nov 18, the applicant stated he served honorably for 16 years.  However, in 2014 his career suddenly took a turn for the worse.  He chose to utilize all options afforded to him as a service member, in order to seek relief for issues with his chain of command.  Because of his persistence with seeking equality, he was physically assaulted by his squadron commander on 8 Aug 14 and immediately reported the incident.  However, the entire chain of command, up to the Adjutant General chose to protect the commander and defame his character.  He commenced with using other methods to report the abuse of authority he experienced.  As a result of his actions, an unfavorable action was presented to him.  He was denied reenlistment based on false statements and documents, which he was never counseled on.  He immediately filed a Military Whistleblower Reprisal complaint.  On 20 Feb 15, DoD/IG referred the case to SAF/IG for further investigation.  However, he was not contacted by the case manager until 25 Oct 17 to provide clarification on his allegations.  He submitted nearly two hundred emails, all of which contradicted any libel used against him by his chain of command.  Nonetheless, on 21 Jun 18, he received the findings of the investigation, which stated the case was dismissed.  On 31 Aug 18, he applied for reconsideration to have a higher-level IG review because the investigation conducted was partial and biased.  The investigator did not follow the IG guidelines by having a neutral party contact him to look into his allegations.  Instead, the case manager wanted him to work with the same organization his allegations were against.  Additionally, the investigator did not consider all the evidence he submitted, nor did the investigator contact the relevant witnesses that he provided.  Based on the contents of the Report of Investigation (ROI), none of his performance history, evaluations, awards and decorations, reference letters, etc., were entered as evidence to contradict the slanderous statements made against him.  In fact, the case manager interviewed the current squadron commander, who never supervised or had any direct interaction with him, and his statements were all slander and hearsay.  Nonetheless, his direct supervisor (major) was willing to testify that his former commander made him create false documents against him.  The case manager contacted the major; however, his testimony was considered as "OFF THE RECORD" and not utilized in the ROI.  This further confirms the investigation process is flawed and broken because service members are not afforded equal opportunity, if they stand up for themselves.  In his letter to the Secretary of Defense, he requested the investigation be reopened using a set of fresh objective eyes into his allegations, stating he was only trying to clear his name and have the AF Form 418 removed from his file. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS 

The applicant is a former Air National Guard (ANG) technical sergeant (E-6).

According to NGB Form 173-1, Retention Interview Record, dated 5 Apr 14, the applicant’s commander authorized him to reenlist for 72 months. 

In a sworn statement declared on 13 Aug 14, the applicant states in part that on 8 Aug 14, his commander asked if he was refusing to provide his address for the recall roster.  As he walked into his office, the commander followed him and repeated his question.  The applicant pulled out his digital voice recorder.  The commander attempted to grab the recorder out of his hand.  In the process, the commander slapped the top of the applicant’s left hand.  The applicant responded by stating, “do not put your hands on me.”   The commander asked the applicant to leave the building.  Subsequently, the applicant informed his supervisor he was going to Security Forces to file a complaint. 

In an undated ROI, the Georgia Air National Guard (GA/ANG) Investigative Officer (IO) conducted a Commander Directed Investigation (CDI) at the direction of the Director of Staff for alleged workplace violence.  The CDI was conducted from 11-13 Aug 14:  

	Allegation 1:  On or about 8 Aug 14, the applicant’s commander instructed a non-commissioned officer to replace the applicant’s address with an address provided by a colonel.  The applicant alleges this was a violation of his privacy under the Privacy Act of 1974.  (UNSUBSTANTIATED).

	Allegation 2:  On or about 8 Aug 14, his commander assaulted the applicant in his office during an emotionally charged conversation over the applicant’s reluctance or refusal to provide a physical address for the squadron’s recall roster. (UNSUBSTANTIATED).  

The IO recommended the applicant receive the appropriate disciplinary action for being disrespectful and insubordinate to a commanding officer.  The IO also recommend an impartial and objective witness(es) be present for all communications exchanged between the applicant and his commander.

The ROI is at Exhibit C.

Per AF Form 418, dated 10 Jan 15, the applicant was not selected for reenlistment.  His commander stated the applicant had reached the limit of his potential as a Non-Commissioned Officer in the Air National Guard.  Discussions regarding his attitude, disrespect, refusal to follow orders and job performance were documented for years.  The applicant failed to bring about any change, set a terrible example to squadron members, and failed miserably at the Air Force core values.  The commander also stated the applicant was the worst non-commissioned officer he ever served with and that his attitude and behavior was incompatible with military service.  The applicant refused to sign the AF Form 418.

Per DA Form 1559, Inspector General Action Request, dated 21 Jan 15, the applicant filed an IG complaint requesting that he be allowed to reenlist.  The applicant stated his commander assaulted him on 8 Aug 14.  He contacted security forces to report the incident; however, nothing was done.  He was detailed to another section from 11 Aug 14 to 13 Dec 14.   On 16 Dec 14, he was sent back to the hostile environment.  The applicant also states that on 5 Apr 14, he was notified that he could reenlist.  However, on 10 Jan 15, he received a notice of ineligibility to reenlist from the commander.   The applicant states this is retaliation because his military record contains no bad information.

Per AFPC/DPFDF letter, dated 26 Apr 16, the Formal Physical Evaluation Board (FPEB) determined the applicant was unfit to perform the duties of his office, grade, rank, or rating for the following diagnosis:  Anxiety and Asthma. 

NGB Form 22, Report of Separation and Record of Service, effective 30 May 16, reflects the applicant was honorably discharged with authority and reason of “AFI 36-3209, Paragraph 3.14, Physical Disqualification, SPD:  RBD.”  He was credited with 17 years, 8 months, and 12 days of total service for pay.  

Per Reserve order EK-3544, dated 17 May 16, the applicant was assigned to the Retired Reserve Section and placed on the USAF Retired list effect 31 May 16 awaiting pay at age 60.

In a letter dated 21 Jun 18, SAF/IG notified the applicant of the disposition in his case (20150128-02960).  SAF IGQ concluded that the responsible management officials, did not reprise against him or abuse their authority.  Based on the evidence, SAF IGQ concluded there was insufficient justification to conduct an investigation into any of the issues under AFI 90-301 and 10 USC1034.  As a result, SAF IGQ recommended the following:

1.	That on or about 10 Jan 15, the Air Support Operations Squadron Commander (ASOS/CC), denied his reenlistment in reprisal for making a protected communication.  (DISMISSED)

2.	That on or about 10 Jan 15, the Air Support Operations Squadron Supervisor, did not recommend the applicant for reenlistment in reprisal for making a protected communication.  (DISMISSED)

Subsequently, the DoD IG reviewed the report and concurred with the conclusions.  In accordance with 10 USC 1034, their final determination was to approve SAF IGQ’s findings and dismiss all issues.  The applicant was advised of his right to petition the Air Force Board for Correction of Military Records (AFBCMR).

In a letter dated 16 Sep 19, DoD/IG informed the applicant that his request for reconsideration did not warrant further investigation (20150128-029650-Case-01).  The IG determined the applicant did not present any new or compelling information or extenuating circumstances to overturn their original determination or to support further action regarding the 28 Jan 15, reprisal complaint.  Accordingly, the applicant’s case remained closed.  The DoD/IG also advised him of his right to petition the AFBCMR.  

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

AIR FORCE EVALUATION

NGB/A1PP recommends denying the applicant’s request to remove the AF Form 418 from his records.  There is no evidence of an error or injustice.  It appears the appropriate procedures were followed in accordance with ANGI 36-2002, Enlistment and Reenlistment in the Air National Guard and as a Reserve of the Air Force, dated 1 Oct 12, with regard to the AF Form 418.  Per ANGI 36-2002, AF Form 418 is used to document non-selection/selection for continued service or reconsideration actions.  The applicant’s supervisor recommended non-selection and forwarded the AF Form 418 to the commander.  At non-selection, the applicant should have been counseled on the appeal process.  The applicant had 10 calendar days to appeal.  There is no evidence presented to suggest the applicant followed the appeals process.  The applicant continued to drill until Jul 15, which provided him enough time to submit an appeal to the AF Form 418.  The applicant did not receive a negative reenlistment (RE) code since he was medically separated.  The applicant was extended three times after the AF Form 418 due to medical evaluation board processing.  The applicant was medically separated from the ANG effective 30 May 16 and transferred to the retired reserve list.  The applicant’s reenlistment eligibility code was listed as “6I- Retirement Application has been submitted.” 

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 16 Mar 20 for comment (Exhibit F), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not 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 NGB/A1PP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  

4. The applicant alleges he has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC § 1034).  We note, the applicant filed an IG complaint however, SAF/IG, reviewed the allegations, and the findings were unsubstantiated, to include alleged reprisal.  Nevertheless, in accordance with 10 USC § 1034, we reviewed the evidence of record to reach our own independent determination of whether reprisal occurred.  We note the applicant asserts the investigation was flawed; however, we do not agree.  As such, we conclude the applicant has not established that the adverse actions taking against him were in retaliation to making a protected communication.  Therefore, it is our determination the applicant has not been the victim of reprisal based on the evidence of record in this case.  In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 

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-2019-04515 in Executive Session on 29 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 16 Sep 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	GA ANG IG ROI, undated (WITHDRAWN).
Exhibit D:	Whistleblower Reprisal Investigation dated 21 Jun 18 (WITHDRAWN).
Exhibit E:	Advisory opinion, NGB/A1PP, dated 28 Jan 20.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 16 Mar 20.

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., for Docket Number BC-2019-04515.