RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00373

XXXXXXXXXXXXXX.	COUNSEL: NONE	 

  	HEARING REQUESTED: NO

APPLICANT’S REQUEST

He requests the following based on substantiated allegation of reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, and 10 U.S.C. § 1034:   

His referral enlisted performance report (EPR) for the reporting period ending 30 Nov 18 be void and removed from his record.

His promotion sequence number (PSN) 7966 for Cycle 18E6 for promotion to the grade of technical sergeant (TSgt, E-6) be reinstated.

He be promoted to the grade of TSgt.  

APPLICANT’S CONTENTIONS

On 19 Mar 18, he reported to his supervisor he planned to report a personally identifiable information (PII) violation. He was informed by the Inspector General (IG) of his right to petition the BCMR for correction of his records in concert with the Report of Investigation (ROI) dated 1 Jun 19.  The reprisal resulted in him receiving a referral EPR and promotion ineligibility.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force staff sergeant (SSgt, E-5).

The applicant received a referral EPR for the reporting period ending 30 Nov 18.  The reason for the referral EPR was a letter of counseling (LOC) for dereliction of supervisory duties and a letter of reprimand (LOR) for unprofessional relationship with an airman.  He also received a LOR from deployed leadership for insubordinate behavior and hostile work environment.  

AF Form 418, Selective Reenlistment Program (SRP) Consideration for Airmen, dated 17 Jan 19, shows he was not selected for reenlistment by his commander.  His commander stated he demonstrated a failure to embrace Air Force core values.  He received a LOC and LOR for failing to meet standards.  He exhibited a lack of respect for his leadership and attempted to undermine their authority.  On 6 Feb 19, the applicant appealed the decision and on 29 Mar 19, his wing commander approved his appeal and restored his reenlistment eligibility.  

On 7 May 19, the applicant was honorably discharged with a narrative reason for separation of completion of required active service.  He was credited with 7 years of active duty service.  

AFMC/IG ROI dated 1 Jun 19, shows the AFMC IG conducted a whistleblower reprisal investigation pursuant to 10 U.S.C. § 1034 and DOD Directive 7050.06, Military Whistleblower Protection.  

	Allegation 1:  On or about 17 Aug 18, his superintendent issued a LOR to the applicant in reprisal for making protected communication.  (NOT SUBSTANTIATED).

	Allegation 2:  On or about 10 Nov 18, his superintendent signed a referral EPR in reprisal for making protected communication. (NOT SUBSTANTIATED).  

	Allegation 3:  On or about 12 Jan 19, his superintendent signed a non-recommendation for reenlistment letter to his commander in reprisal for making protected communication.  (SUBSTANTIATED).  

	Allegation 4:  On or about 30 Nov 18, his commander signed a referral EPR in reprisal for making protected communication.  (NOT SUBSTANTIATED).  

	Allegation 5:  On or about 17 Jan 19, his commander denied him reenlistment in reprisal for making a protected communication. (NOT SUBSTANTIATED).  

The IG recommended his commander take corrective action regarding the substantiated finding.  His wing commander overturned the denial of reenlistment; however, the applicant decided not to reenlist and left the service in May19.  

In a letter dated 25 Sep 19, the AFMC/IG informed the applicant an investigation concluded reprisal occurred.  Since reprisal was supported by the facts he was advised of his right to petition the BCMR for correction of any adverse personnel action.  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory opinions at Exhibits D and E.

APPLICABLE AUTHORITY

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

AIR FORCE EVALUATION

AFPC/DP2SPP recommends denial for reinstatement of TSgt PSN.  There is no evidence of an error or injustice with the 2018 referral evaluation, which rendered him ineligible for promotion.  The applicant then made the decision to not reenlist and separated from active duty on 7 May 19 before the PSN would have taken effect on 1 Jun 19 and before he had the opportunity to obtain a non-referral evaluation, which would have removed the ineligibility status code and rendered him eligible for promotion.  The complete advisory is at Exhibit D.  

AFPC/DP3SP recommends denial for removal of the contested EPR.  Based on the AFMC/IG ROI and the AFPC/DP2SPP advisory, there is insufficient evidence to warrant removal of the referral EPR.  According to the ROI, the applicant’s reenlistment was withheld due to reprisal, which was substantiated; however, there is no evidence of reprisal for the referral EPR.  There is nothing to prove the referral comments to be inaccurate. The complete advisory is at Exhibit E.   

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 3 Apr 20 for comment (Exhibit F), but has received no response.

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 recommendations of AFPC/DP2SPP and AFPC/DP3SP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board notes the AFMC IG ROI substantiated the allegation his superintendent reprised against him in recommending he be denied reenlistment; however, the denial of reenlistment was overturned by his wing commander.  Based on the evidence, it appears it was the applicant’s own decision to not reenlist but request voluntary separation.  The Board also notes the allegations pertaining to the referral EPR and the removal of his TSgt PSN were not substantiated.  Further, the applicant separated before his PSN was announced and would not have been promoted prior to his separation had the PSN not be canceled.  Therefore, the Board recommends against correcting the applicant’s records.

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-2020-00373 in Executive Session on 28 Apr 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 Oct 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	AFMC IG ROI, dated 1 Jun 19 (WITHDRAWN).
Exhibit D: Advisory opinion, AFPC/DP2SPP, dated 24 Feb 20.
Exhibit E:  Advisory opinion, AFPC/DP3SP, dated 3 Apr 20.
Exhibit F:  Notification of advisory, SAF/MRBC to applicant, dated 3 Apr 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.