RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02140

XXXXXXXXXXXXXX	COUNSEL: NONE
	
                                                                             HEARING REQUESTED: NOT INDICATED	

APPLICANT’S REQUEST

He be retroactively promoted from sergeant (E-4) to staff sergeant (E-5).

APPLICANT’S CONTENTIONS

All eligibility requirements were met qualifying him to test and be promoted to E-5.  However, the extremely excessive punishment of non-recommendation for promotion, dated 29 Jan 92, was a retaliation for him filing complaints of unfair work practices and treatment within the Civil Engineering’s Metal Shop.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged sergeant (E-5).  

On 12 May 82, the applicant initially entered the Regular Air Force.

On 22 Jan 87, according to documentation submitted by the applicant, a Social Actions Racial Discrimination Complaint Case (#E6-006-09) filed by the applicant was closed-out.  Although the case file was destroyed after a two-year period in accordance with (IAW) AFR 12-50, Disposition of Air Force Records, two previous Social Actions staff members verified the complaint was filed.  In addition a letter from the squadron commander verified the complaint was confirmed and all persons accused of racial discrimination were counseled on their inappropriate behavior. 

On 2 Apr 90, the applicant received his Enlisted Performance Report (EPR) for the period 4 Apr 89 thru 31 Mar 90.  Section IV. PROMOTION RECOMMENDATION – Satisfactory Performer, Consider for Promotion – Rater and Indorser rating 3.

Between 3 and 8 Apr 91, according to documentation submitted by the applicant, a Complaint Clarification concerning the allegation of race discrimination practiced by the applicant’s supervisor was conducted.  The applicant alleged his supervisor retaliated against him and threatened his life because of a previous complaint of racial discrimination filed against him in the past.  The facts of the case indicated there was a reasonable probability that the Air Force Equal Opportunity and Treatment (EOT) policy was violated.  It appeared that retaliatory actions had been taken against the applicant over an extended period of time because of his first complaint.  

On 23 May 91, the applicant received his EPR for the period 1 Apr 90 thru 31 Mar 91.  Section IV. PROMOTION RECOMMENDATION – Satisfactory Performer, Consider for Promotion – Rater and Indorser rating 3. 

On 29 Jan 92, according to documentation submitted by the applicant, IAW AFR 39-29, Promotion of Airmen, table 2, line L and paragraph 3, he received Notification of Non-Recommendation for Promotion (Removal from Selection List).  The duration of the non-recommendation action is for the duration of cycle 92-85. The specific reasons for this action are:

a.	On 15 Jun 88, the applicant used and directed profanity at a co-worker, and also attempted to alter work standards established by the Noncommissioned Officer in Charge.

b.	On 13 Feb 89, he was 40 minutes late reporting for duty.

c.	On 27 Mar 89, he made threatening remarks against, and used profanity toward, his co-worker(s).

d.	On 8 Mar 90, he was disrespectful toward his reporting official.

e.	On 11 Mar 91, he was observed speeding, both, in [City] and on [Air Force Base], in the vicinity of the main gate.

f.	On 14 Mar 91, he wrongfully left his appointed place of duty without authority to do so.

g.	On 3 Apr 91, he wrongfully took a subordinate, without proper authority to two of his personal appointments. This prevented the subordinate from being available for duty as he should have been.

h.	On 3 Jul 91, he did, without proper authority, leave his appointed place of duty to go to lunch at a time that was in violation of his established lunch time.

i.	On 3 Jul 91, he did not complete his work assignments as prescribed by his supervisor.

j.	On l Aug 91, he was reported speeding on [Air Force Base].

k.	On or about l8 Sep 91, he did not complete work as prescribed by his supervisor.

l.	On 30 Sep 91, he was 1-1/2 hours late for duty.

m.	On 30 Oct 91, he failed to attend a scheduled meeting.

n.	On 10 Jan 92, he was one hour late for duty.

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

AIR FORCE EVALUATION

AFPC/DP2SPP (Enlisted Promotions) recommends denying the application.  Their review of the documentation provided by the applicant and analysis of the facts, revealed there is no evidence of an error or injustice; the current grade information should stand.  The Notification of Non-recommendation for Promotion (Removal from Selection List), dated 29 Jan 92, IAW AFR 39-29, Promotion of Airmen, table 2, line L and paragraph 3; listed 14 adverse actions (e.g. Letters of Reprimand (LORs), Letters of Counseling (LOCs), etc.), why the non-recommendation was presented.  During the timeframe in question enlisted promotions were conducted under the Weighted Airman Promotion System (WAPS).  The applicant would have needed to compete for promotion in the required categories and reach/surpass the minimum eligibility requirements, and be recommended by unit commander in writing to be considered for promotion.  

The complete advisory opinion is at Exhibit C.

AFPC/JA recommends denying the application.  The record does not demonstrate the existence of probable material error or injustice warranting relief.  While the applicant’s submission shows some evidence of past discrimination and retaliation, there is insufficient evidence to show the commander’s decision not to promote the applicant was made in error or was improperly motivated by reprisal.  The applicant filed a Social Actions Racial Discrimination Complaint against his supervisor around 1986.  While the report no longer exists, memos from the commander and a Social Actions member confirm the complaint was filed, and the allegations were confirmed, and the individuals named in the complaint were counseled upon closure of the case.  

Between on or about 3 Apr 91 and 8 Apr 91, Social Actions conducted a second complaint clarification case IAW AFR 30-2, Social Actions Program.  Again, the applicant’s supervisor was the primary suspect.  While the supervisor denied allegations, several co-workers and other airmen confirmed the applicant’s allegations of threats of bodily harm, and a disparity in training.  The second investigative report determined there is reasonable probability the Air Force EOT policy had been violated.  Additionally, the report stated there is reasonable probability that retaliatory actions had been taken against the applicant of an extended period of time because of his first complaint.  In or around Apr 91, the applicant was moved from the Sheet Metal Shop to a different section, giving him another opportunity to start over in the squadron.  

On 29 Jan 92, IAW AFR 39-29 (C3), the applicant’s commander notified him that he was not recommended for promotion to E-5, citing 13 [sic] adverse actions.  

Reprisal is a violation of Title 10 U.S.C., § 1034.  AFR 123-11, The Inspector General Complaint Program, provides a four-part acid test to evaluate reprisal allegations.  In this case, to determine whether the commander’s Non-recommendation for Promotion Action was conducted in retaliation for filing a Social Action complaint, the four-part test is applied:

i.	Did the military member make or prepare to make a communication protected by
statute, DoD Directive, or AFI 90-301?  YES, at the time, the applicant was on active duty and had filed discrimination and retaliation complaints with the Social Actions office, under AFR 30-2.    

ii.	Was an unfavorable personnel action taken or threatened, or was a favorable action 
withheld or threatened to be withheld following the protected communication?  YES, the commander’s Non-recommendation for Promotion constitutes an unfavorable personnel action.  However, the commander’s notification also cites a number of adverse actions that may constitute unfavorable personnel actions.  

iii.	Did the official(s) responsible for taking, withholding, threatening, or influencing the 
personnel action know about the protected communication?

(a)	There is no evidence the commander who took the action that is subject to this application, was aware of any protected communication.  According to the applicant, the commander was new to the squadron and not familiar with the complaints filed in 1986 and 1991. 

(b)	The Notification of Non-recommendation for Promotion lists 14 separate adverse incidents that serve as the basis for the commander’s action.  Nine individuals documented and signed those incidents, only two of whom were aware of the Social Actions investigations.  One of the individuals was the applicant’s supervisor (subject of both investigations).  He issued the applicant a Record of Individual Counseling for reporting late for duty on 13 Feb 89, more than two years after the first investigation and two years before the second investigation. 

(c)	The second individual, MSgt L.M. was interviewed during the second Social Actions complaint clarification between 3 and 8 Apr 91.  Presumably he would have become aware of the complaint at that time.  MSgt L.M. drafted an MFR on 3 Apr 91, documenting the verbal counseling he gave the applicant that day for taking an Airman with him on personal appointments without notifying the Airman’s supervisor. 

(d)	It is possible the other individuals who issued the adverse action paperwork against the applicant were aware of his complaints to Social Actions, however, there is no definitive evidence of this in the record.

iv.	Does the preponderance of the evidence establish that the personnel action would have 
been taken, withheld, or threatened if the protected communication had not been made?  In this case the decision to non-recommend for promotion was attributed to several disciplinary actions laid out in the non-recommendation memorandum.  Objectively, these missteps can justify the non-recommend for promotion, even if the counseling by the supervisor was disregarded.  

(a)	IAW AFR 39-29, regarding recommending or approving a promotion, a commander must review and determine if the airman’s duty performance, training progress, and supervisory and leadership abilities warrant promotion.  The applicant’s missteps (showing up for work late on three occasions) would certainly qualify as poor duty performance not warranting promotion.  Additionally, it appears the applicant continued to have disciplinary issues after he moved into another shop.

(b)	Capt D.B. in an MFR dated 19 Sep 91, noted the applicant, after being assigned to planning, seldom completed more than fifty percent of his weekly assigned work.  Capt D.B. goes on to say the applicant had six months of assistance, guidance and motivation from his supervisor to improve his performance.  He concluded the applicant has not made the effort to seek out help to improve his performance.  As such, from an objective standpoint, the preponderance of evidence establishes the personnel action(s) may have been taken even if the protected communications had not been made.

(c)	Because there is documented evidence of discrimination and retaliation, it is possible the applicant, even after he moved into the new shop, continued to experience discrimination and retaliation.  The case is almost 30 years old, it is almost impossible to know if all the disciplinary actions were improperly motivated.  The fact that these adverse actions were documented by 10 individuals, to include the commander who was unaware of any protected communications, suggests there was an independent, non-retaliatory basis for the decision to not promote the applicant.  

AFI 36-3603, Air Force Board For Correction Of Military Records (ABCMR), requires applicant’s to file an application within 3 years after the error or injustice was discovered, or, with due diligence, should have been discovered.  They maintain, the applicant’s unreasonable delay, a lapse of 28 years, has greatly complicated the Air Force’s ability to address the matter, and recommend this application be dismissed for failure to file in a timely manner.  

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 10 May 21 for comment (Exhibit E), and the applicant’s response was received on 24 Jun 21.  In his response, the applicant contended the nexus between the documented injustices, proven to exist, but disregarded, ignored or overlooked and the incoming commander’s decision to deny his stripe was an unfair decision based on outdated MFRs, LOCs and LORs, and failure to investigate his history before concluding his worth for retention.  He sustained injustices and was continuously victimized, threatened, humiliated and outcast.  To support his contentions, he provides comments on six of his adverse action counselings, plus several documents identifying actions he took during the 1991 timeframe to rectify his situation, redacted testimony excerpts, and letters of support.  

The applicant’s complete response is at Exhibit F.

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 recommendations of AFPC/DP2SPP and AFPC/JA, and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board acknowledges the documentation submitted by the applicant reveals some evidence of past discrimination and retaliation, but there is insufficient evidence presented showing the commander’s decision not to promote the applicant was made in error or was improperly motivated by reprisal.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2020-02140 in Executive Session on 11 Aug 21.

, Chair, AFBCMR
, 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 19 Jun 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SPP, dated 29 Mar 21.
Exhibit D:	Advisory Opinion, AFPC/JA, signed 27 Apr 21.  
Exhibit E:	Notification of Advisories, SAF/MRBC to Applicant, dated 10 May 21.
Exhibit F:	Applicant’s Response, w/atchs, received 24 Jun 21.

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.