RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03678

XXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXX 

  	HEARING REQUESTED: NO 	 

APPLICANT’S REQUEST

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

1.  His letter of reprimand (LOR), dated 23 Mar 21, be removed.  

2.  His referral officer performance report (OPR) for the reporting period ending 2 Apr 21 be removed.  

3.  His promotion to the rank of major (O-4) be under the position vacancy (PV) promotion program, with an appropriate date of rank (DOR).

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, contends the false allegations resulting in the adverse actions and denial of PV promotion were the result of retaliation and ugly specter of discrimination.  

Due to the mishandling of his accession into his ANG unit, there were delays and disruptions in pay causing the applicant financial hardship.  The hardship forced him to find the lowest cost option for temporary housing and he accepted an offer from an ANG member to rent a basement apartment in her home for a brief period.  This fact was never hidden, was known throughout the unit and even discussed and documented in an airman comprehensive assessment (ACA) meeting with the commander, who was his supervisor.  It was known to the commander that pay and housing were major stressors for him during the period.

The records demonstrate his performance and character were outstanding up to the date he filed an inspector general (IG) complaint.  After filing two IG complaints in Feb and Aug 20, leaders involved in the IG investigations began taking adverse action against him based on manufactured allegations related to his living arrangements.  There is evidence the allegations were false and clearly retaliatory and the investigation dealt with matters three to five years old.  Ultimately, although there was no misconduct, the chain of command issued an LOR and referral OPR.  

He was also improperly denied promotion to major.  His supervision orchestrated a scenario whereas if he attempted to have himself promoted improperly despite the direction for leadership to initiate the promotion.  He was stratified “#1/45” and selected as employee of the month for the State ANG during the respective time; however, captains with lower stratification were promoted instead of him.  

Pursuant to AFI 36-2907, Adverse Administrative Actions, paragraph 2.2, the standard of proof for adverse administrative actions is the preponderance of the evidence.  Pursuant to AFI 36-2909, Air Force Professional Relationships and Conduct, and AFI 90-301, Inspector General Complaints Resolution, a supervisor must take appropriate action if it is reasonable to believe retaliation has occurred.  The errors began with the decision to allow individuals named in the IG complaints to maintain control of the investigation, resulting in a conflict of interest and continued retribution and retaliation for making a protected communication.  The command ignored applicable legal standards and abused their position and authority.  

The issuance of the OPR failed to follow procedural safeguards.  Additional adverse comments were added, and the applicant was not given the required opportunity to respond.  The OPR also includes comments related to the IG and includes false information regarding feedback that was not provided.  The investigation was flawed and based on a biased investigation that failed to obtain any credible evidence of misconduct.  

He provides a timeline of events. His landlord and tenant arrangement were consistent with the adjutant general (TAG) policy memorandum.  The actions taken against him were retaliatory based on his actions as the sexual assault response coordinator (SARC) and his attempts to protect victims.  He filed a grievance, which was dropped with no action.  With respect to the PV promotion, he contacted the State ANG in Aug 18 based on a discussion with his commander.  His commander now states he would not have recommended him for a PV promotion, but this is contrary and witnesses in the commander’s staff can recall the conversation.  On 6 Jun 19, his commander stated they approved a PV promotion for him via a text message.  However, on 8 Dec 19, he was advised by his senior rater he would be considered for promotion by the Reserve Major Promotion Board.  The timeline includes IG complaints filed for violations in completing his OPR, improper scrolling, his Uniform Service Employment and Re-employment Rights Act (USERRA) rights violations and misuse of the PV promotion regulation.  On 12 Nov 20, the WG/IG informed him they could not investigate his IG case, FRNO 2020-03721, because the subjects of the complaint were the wing and vice wing commanders, as a result the case was required to be transferred to the next level IG.  

On 11 Mar 21, the State ANG called to tell him he should not be promoted because early pin-on was reserved for members taking command.  There were follow-up emails to remove his promotion despite due process. A review of his records showed there was no promotion order, although the promotion consummated in the system with the accelerated DOR.  He was advised the adjustment would cause a debt.  NGB/A1PO indicated they did not know how his promotion had consummated and whether an order had ever been issued.  No one could explain why his promotion was taken back or the inconsistent messaging.  On 15 Mar 21, an investigation was initiated and on 23 Mar 21, he was served with an LOR.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a major (O-4) in the ANG, with DOR and effective date 30 Jul 21.    

The applicant provides TAG Policy Letter 13-07, Unprofessional Relationships, dated 12 Mar 13.  Item b (1) states landlord/tenant relationships or one-time transactions did not apply.

On 6 Aug 18, the applicant emailed the State ANG stating his WG/CC wanted to move forward with his PV promotion now that he was eligible.  He asked if it was possible to be boarded in Oct and asked what documents were required.  

The applicant provides myPers Scroll Question Discussion Thread, stating his State ANG interim appointed him in 2016; however, they did not send the request until 13 Dec 18.  He asked if it was true, he could not be promoted via the PV program due to not being scrolled and was advised to contact NGB/A1PO.  

On 20 Dec 18, NGB/A1PO issued a temporary appointment.

On 18 Feb 20, the applicant filed an IG complaint that his unit had not submitted an accession package to NGB/A1PO within 30 days of the interim appointment and he was unaware he had not been scrolled until May 18 when he inquired about the steps for his PV promotion to major that his commander had endorsed for him. The accession package was sent in Oct 18 but not submitted until 13 Dec 18.  As of Feb 20, he was still not notified if he had been scrolled.  The delay in his accession package resulted in multiple setbacks to include not being able to be promoted.  He requested his promotion to major be backdated, with back pay.    

On 9 Aug 20, the applicant filed an IG complaint regarding concern with the State ANG’s misuse of the PV Promotion and named the WG/CC and the State ANG/CC as the responsible parties.  Instead of using it to promote top performers, it was used to promote members who met minimum requirements.  He also asked if there was bias against him as the two previous executive officers were promoted under the PV program.  There appeared to be favoritism and possible toxic leadership.  He was told he would be promoted by the PV board but was then sent to the Reserve Major Promotion Board.  

In a memorandum for record (MFR) dated 18 Mar 21, the State ANG/CC stated he received information the applicant in Nov 20 made a false official statement regarding the WG/CC’s intent for his PV promotion to major.  He contacted the former WG/CC who stated he never had any intent to PV promote the applicant.  In another MFR dated 18 Mar 21, the State ANG/CC stated he received information in Nov 20 that the applicant violated the prohibition on shared living accommodations in the TAG policy letter 13-07.  

He provides a text message from the named senior master sergeant (landlord) stating she was not sure where they got, he had stayed with her for three months but believed the commander and command chief were aware he was residing at her home.  In a separate text message, she stated she recalled the WG/CC discussing PV promotion for him but that he did not follow through.  He also provides a text message from his recruiter stating they used the recruiter’s address in the accession package as he did not have an address.  

Per Special Order Number XX-X dated 7 Apr 20, the applicant was extended Federal Recognition in the grade of captain effective 4 Aug 16.  

The applicant provides record of individual printout which shows his rank of major, with DOR and effective date 12 Nov 20.  

In an email dated 11 Mar 21, NGB/A1PO informed the military personnel management officer (MPMO) they could not find a promotion order for the applicant promoting him to major but unfortunately the promotion consummated in the system with the accelerated DOR requested.  They adjusted the applicant’s grade and DOR to captain, which would cause a debt to him.  They hoped he was not wearing the rank.  They would have to check to see what had occurred and apologized for the situation.  

In an email dated 11 Mar 21, the ANG MPMO stated the wing commander approved the request for accelerated promotion and routed it accordingly.  Since he was not the promotion authority, he routed it to the State Headquarters and the Assistant TAG chose not to accelerate.  This was communicated to NGB/A1PO.  However, NGB/A1PO processed the promotion without receipt of the official accelerated promotion package from the state.  The reduction of rank is solely to correct the error made at NGB.  

On 23 Mar 21, the applicant received an LOR.  An investigation revealed between 5 Aug 16 to 15 Nov 16 he lived with the named female senior master sergeant, who was at the time the wing’s administrative assistant while he was the wing’s executive officer, and he did not compensate her for sharing living accommodations.  The conduct compromised his standing as an officer and was in violation of the TAG policy letter 13-07, Unprofessional Relationships, and AFI 36-2909, Air Force Professional Relationships and Conduct.   An investigation also disclosed that on 6 Aug 18 he made a statement with intent to deceive that his commander wanted to move forward with his PV promotion, which was false as his commander never had any intention to promote him via the PV program.  The applicant in a rebuttal response to the LOR dated 12 Jul 21, stated he received an LOR approximately 54 months after the alleged misconduct.  He disagreed with the timing, factual allegations and the motivation for issuing an LOR under the circumstances.  

The applicant received a referral OPR for the reporting period 3 Apr 20 to 2 Apr 21.  It sated he received an LOR from a general officer for an unprofessional relationship and making a false official statement during the rating period.  The additional rater upheld the referral OPR after reviewing the applicant’s response that the command was issuing the referral OPR as a result of an IG complaint.  Counsel stated in the response that referencing an LOR for conduct that occurred three to five years prior to the reporting period created a false impression of the applicant’s performance as well as his potential for future leadership and that this was made worse by including the misleading statement “during this reporting period.”  The OPR was also misleading as the rating chain was aware of the circumstances leading to the LOR and engaged in an intentional course of action to retaliate against the applicant.  The WG/CC was aware that the applicant was staying in the basement apartment of an enlisted member for a temporary period in 2016 while he was waiting to close on a house.  The arrangement involved the offer to pay rent and was known and consented to by wing leadership.  Under the circumstances, the arrangement did not violate the TAG Policy or any other guidance.   He also did not lie about the PV promotion and statements provided show he spoke to the WG/CC about a PV promotion and that the WG/CC failed to follow through.  It is not appropriate to include a reference to misconduct that demonstrably did not occur and is based on a situation that occurred over three years earlier.  The OPR was punitive action after he was forced to file two IG complaints involving the rating chain, creating a strong appearance of reprisal and retaliation.  The LOR and OPR are the culmination of a series of retaliatory actions taken against the applicant after he raised concerns with the handling of a case as the SARC.  

In a memorandum dated 4 Apr 21, his former WG/CC stated she did not know he was residing with the named senior master sergeant, and she would remember a living situation with her male executive officer and female enlisted administrative assistant.  

On 7 Apr 21, the WG/IG signed a letter stating for the record as the WG/IG, he did not discuss with the WG/CC any elements of the complaint submitted by the applicant.  

On 20 Jul 21, the applicant was discharged from the State ANG and transferred to another State ANG, effective 21 Jul 21.  

His DD Form 214, Certificate of Release or Discharge from Active Duty shows he was discharged on 8 Aug 21 and credited with 2 years, 4 months and 6 days of active-duty service.  

SAF/IGQ advised the applicant filed 25 IG cases in total and no allegations of reprisal or restriction were substantiated.  One case was investigated and not substantiated, 16 cases were dismissed and eight were considered as SAF/IG assists.  

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

APPLICABLE AUTHORITY/GUIDANCE

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

The WG/IG states given the nature of the alleged wrong and the passage of time, there is reasonable probability insufficient information can be gathered to decide.  Therefore, per AFI 90-301, the applicant’s complaint can be dismissed.

The applicant filed a complaint via the Air Force Hotline on 5 Feb 20.  He alleged between Aug 16 to 2018, the wing failed to follow a lawful regulation resulting in him not being able to promote.  He alleged the wing MPMO failed to follow a lawful regulation, which impacted his ability to be promoted.  Specifically, an accession package to NGB/A1PO was not submitted within 30 days of his interim appointment as required by AFI 36-2005, Officer Accessions.  The MPMO claimed the recruiter did not process the proper package as a part of the applicant’s 2016 on-boarding.  The commanders who allegedly would have submitted him for a PV promotion have retired and there was no official record of the applicant ever being nominated or submitted for a PV promotion.  He was officially selected for promotion via the Major Promotion Selection Board A0420A on 18 May 20.  

Per AFI 90-301, the applicant did not contact the IG within 90 days of learning of the alleged wrongdoing and with the subsequent passage of time, information cannot be gathered to decide.  The applicant alleged he was first aware of the wrongdoing in May 18.  The applicant worked with the wing recruiting office to submit a second accession package in Dec 18.  Subsequently, the wing properly accessed the applicant, and he is properly appointed as an ANG officer.  

The complete advisory opinion is at Exhibit C.

NGB/A1PO recommends denial for PV promotion.  A commander’s recommendation is not enough to warrant promotion.  They are unable to decide without a commander, group commander and the TAG endorsement for PV promotion consideration, a State PV board proceeding, to include the NGB 89-1, Proceedings of a Federal Recognition Examining Board.

The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 20 Jan 22 for comment (Exhibit E), and in an undated response, the applicant contended his leadership stated a PV promotion was appropriate for him and insinuated such a conclusion.  

On 9 Apr 19, he reached out to the Total Force Service Center (TFSC) and asked why he was not scrolled (Federal Recognition).  The Oath of Office was signed by the WG/CC on 4 Aug 16.  He ultimately filed an IG complaint with SAF/IG in Feb 20 about the scrolling and the possible implications for his promotion board scheduled for Apr 20.  

On 8 Dec 19, his officer personnel brief (OPB) did not show he was a dual status technician due to the errors by his unit.  This exposed him to possible adverse effects and career implications.  Further, on 1 Apr 20, he checked his records and learned he had been moved out of the executive officer position and was assigned to the WG/IG.  His supervisor did not inform him of the changes.  He was then advised in an email the removal from his position was to allow another officer to be promoted.  It further stated he would not be sent to IG school unless he qualified for the GS-12 position upon return from his military personnel appropriation (MPA) tour.  The email shows favoritism, abuse of authority, USERRA law violation and toxic leadership.  The actions taken to move him out of his position were for the sole purpose of promoting another person.   

He was told in the spring/summer of 2019 he would promote via the PV process.  However, moving him out of his position hurt his chances.  He was not qualified for the new position and had an overdue evaluation.  Based on his IG complaint and the foregoing, the actions taken appear to be reprisal and retaliation.  

After raising concerns, his records were updated on 6 Apr 20 to show he was made excess to the executive officer position, effective 30 Aug 16.  If he was excess, it would have been impossible to have been hired as a dual status technician on 23 Aug 16.  He was also not issued an excess letter as required by regulation.  The unit falsified documents in reprisal for making an inquiry about the situation and for filing an IG complaint.  

He provides an e-mail from his WG/CC dated 6 Apr 21, confirming he was moved from the executive officer position to the IG position to allow another officer to be promoted.  An action was then accomplished backdating the actions to show it did not happen and that he would be double billeted in the executive officer position.  They believed he would have no issues being promoted by the major’s board, which had a selection rate of 89 to 93 percent and there was no intent for him to attend IG school unless he qualified for the position.  

On 18 Mar 21, the TAG drafted two MFRs days after a telephone conversation about events that occurred three and five years earlier.  A subsequent LOR was drafted the following week, stating actions were investigated and command action was taken.  His email was in the morning of 15 Mar 21 and the “investigation” happened that afternoon.  The TAG also conducted the investigation as the lead supervisor of the organization.  The TAG then contacted the senior master sergeant who in her witness statement details the commander’s prior knowledge of the tenant-landlord situation.  The investigation centered on the fact he had an unprofessional relationship.  If a proper investigation was conducted, it would have shown he was a tenant.  The TAG policy letter on tenant landlord agreements makes the concern moot.  

With respect to his promotion, he provides two documents that show the State leadership approved the promotion.  The first is a text message from the general stating he talked with the WG/CC, and they concluded a PV promotion was warranted for him in May/Jun 19.  The discussion happened because he sent an e-mail after it appeared his WG/CC, previous supervisor, dropped the prospect.  In the fall of 2020, he sent an e-mail to the WG/CC over his concerns for the past couple of years and requested an accelerated promotion date.  Being a subordinate and an executive officer, he wished to save valuable time and help facilitate the action.  He asks how it is possible to have the virtual military personnel flight (vMPF) documents show a 12 Nov 19 DOR if the said promotion had not already been approved. 

He struggles to rely on NGB/A1P as a subject matter expert.  The emails between NGB and the State ANG Director of Staff appear that NGB/A1P gave guidance and then did not follow the guidance.  There is lack of due process and NGB/A1P helped facilitate the action.  He provides documents to show he attempted on two occasions to obtain copies of his promotion order and both times the TFSC was unable to locate the order but stated they could see he was promoted.  He was referred to NGB/A1P, he called and emailed with no response.  Not only is there a conflict of interest by NGB/A1P, but they are also responsible for the unjust actions taken against him.  

Discrimination was also a factor.  The two executive officers before him were Caucasian and both were promoted but he is Hispanic.  He was also reprised and retaliated against for his actions as a SARC in protecting victims.  While email, text or verbal communication are not typical requirements to promote a person, it was made clear to him via these types of communication he was going to be promoted.  However, in an email dated 11 Mar 21, the WG/CC informed the applicant that NGB had made an error in his promotion, and no one could figure out how he was promoted in the system 

On 18 Nov 20, the State ANG Director of Staff stated a promotion package was submitted for the applicant and asked if there was any way to have the submission returned without action as they were recently notified of a concern with the applicant and needed additional time to review the situation.

The applicant’s complete response is at Exhibit F.

ADDITIONAL AIR FORCE EVALUATION

The State ANG/JA states the applicant’s request is not supported by the evidence and should be denied.  Any delay to his accession did not impact his eligibility to promote because his commander did not support a PV promotion.  The LOR and referral OPR were supported by the evidence, which came to light in Nov 20, and served as an independent reason to administer discipline to correct misconduct by an officer.  Even if the LOR and referral OPR were removed, the applicant’s promotion would not be affected because the decision to non-concur with accelerated promotion happened before the LOR and referral OPR were issued.

The following three issues are addressed:

       Issue 1:  Whether the delay of 2 years and 4 months to access the applicant into the ANG prevented him from promotion to major.  The delay of his accession into the ANG did not prevent him from promotion to major since his commander at the time did not support a PV promotion for the applicant.

       Issue 2:  Whether the applicant suffered reprisal due to two IG complained filed in Feb 20 and Aug 20 and was issued a LOR in Mar 21, followed by a referral OPR later in 2021.  The evidence does not support the LOR was issued as retaliation or reprisal for the applicant’s complaints in 2020.  The commander was not aware of the misconduct until Nov 20, even though it had happened several years earlier.  The WG/IG confirmed the commander was never briefed on the specifics of the applicant’s IG complaints. 

       Issue 3:  Whether the removal of the LOR and referral OPR if granted by the AFBCMR would affect the applicant’s promotion to major.  The applicant was selected for promotion to major by the Reserve Major Promotion Board, the first time he met the board.  The fact he was not selected earlier for PV or accelerated promotion was not due to the LOR or referral OPR but was rather because his prior commanders did not submit him for PV promotion.

The complete advisory opinion, with attachments, is at Exhibit G.  

NGB/A1PO recommends denial for PV promotion.  The applicant’s accession package should have been processed timelier at the state level.  However, when a member is accessed into the ANG has no bearing on whether they could be granted a promotion.  Members who are pending scroll nomination approval for federal recognition can be submitted for promotion.  The promotion package in these instances would include a note that the federal recognition was pending and include the accession package identification number.  

The applicant’s intra-service transfer (Air Force Reserve to ANG) accession package was received on 13 Dec 18 and a temporary approval appointment memorandum was issued on 20 Dec 18.  The review of the accession package shows the State ANG interim appointed the applicant on 4 Aug 16.  The AF Form 133 and NGB 337 (oaths of office) validates the 4 Aug 16 date.  However, commander and TAG indorsement memorandum is dated 29 Aug 18, substantiating a delay on the part of the State submitting the accession package to NGB/A1PO.  The applicant’s federal recognition order was published on 7 Apr 20.  	

A PV promotion is not automatic and is designed to provide officers who have demonstrated high potential and exceptional abilities with the opportunity for accelerated promotion.  These promotions must be reserved for a very limited number of truly outstanding officers.  

The complete advisory opinion is at Exhibit H.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the additional advisory opinions to the applicant on 7 Mar 22 for comment (Exhibit I).  In a response dated 14 Sep 22, the applicant provides information from a 2021 IG investigation.  Based on the newly discovered information, there is a discrepancy in the timeline based on multiple official statements and concern towards retaliation, reprisal, false official statements, conspiracy, abuse of authority and civil rights violations.  The evidence shows the early promotion was denied because of a CDI initiated in 2020; however, he is not aware of an investigation in 2020, nor has he seen any documents.  If there was an investigation, his rights were violated as he was not informed.  The IO did not consider that there was a tenant/landlord agreement, State Code provides that an oral contract can be good for four years and residential oral lease agreements may be valid up to one year.  Given the TAG policy, State law and witness statements there were no laws, policies or regulations violated.  Again, leadership was aware of his living arrangements.  NGB would have made a mistake by going through the motions with his accelerated promotion if there was evidence that the request for the acceleration promotion had not gone through the proper office for review and approval as required by policy.  

The timeline provided does not match the evidence obtained through the Freedom of Information Act (FOIA).  The evidence proves the IO failed to recognize fraud, waste and abuse and instead by default continued the conspiracy of retaliation and reprisal.  

The applicant provides a memorandum from DODIG dated 9 Sep 22.  The DODIG provided the applicant with documents pertaining to DODIG’s approval to dismiss the applicant’s reprisal complaint.  The redacted IG ROI shows the applicant’s early promotion date was denied because a CDI initiated in 2020 substantiated misconduct by the applicant when he was living with an enlisted member and that he had not reimbursed her in accordance with regulations.  The TAG initially approved the accelerated promotion; however, he was unaware the request had not been coordinated for review and approval as required by policy.  There was also no evidence to show [redacted] made a false official statement.  

The applicant provides State SJA memorandum to NGB/A1PS dated 26 Feb 22.  It stated the delay of the applicant’s accession did not prevent him from promotion to the rank of major.  It was a fact his command did not support a PV promotion for the applicant.  There was also no evidence to support the applicant was issued an LOR in reprisal.  The IO was never briefed on the specifics of the applicant’s IG complaints and the investigation was on an independent basis.  There were also discrepancies with the address the applicant claimed to be living at when he arrived and the address he submitted for his orders.  The difference claimed was 60 miles. The fact is his prior commanders did not submit him for a PV promotion, which was not due to the LOR or referral OPR.  The applicant’s requests in his BCMR application are not supported by evidence and should be denied.  

The applicant’s complete response, with attachments, is at Exhibit K.  

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 the WG/IG, NGB/A1PO, and the State ANG/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Counsel contends the applicant’s denial of PV promotion to the rank of major, LOR and referral OPR were the result of reprisal and discrimination.  As evidence, counsel states the applicant’s two predecessors, who unlike the applicant were not members of a minority group, were promoted via the PV program.  However, this is insufficient to sustain the applicant was the victim of discrimination or reprisal, in violation of AFI 90-301. The Board acknowledges there were administrative errors in the processing of his accession package; however, the Board does not find the administrative delays resulted in an error or injustice to the applicant.  The applicant is reminded recommendation for a PV promotion is not an entitlement nor is it based on position.  Only very few officers are promoted early via the PV promotion program.  The majority are promoted under ROPMA, like the applicant; and being denied a PV promotion is not an unfavorable personnel action. While it appears the applicant and his commander discussed PV promotion opportunity and the applicant believed he would be promoted, there is no evidence a completed PV promotion package was ever submitted.  The Board does not know why NGB/A1PO consummated an accelerated promotion, but it is evident it was due to an administrative error.  The applicant in his rebuttal response dated 14 Sep 22 provides information obtained via a FOIA request.  The applicant contends his due process rights were violated as he was not made aware of a 2020 investigation.  However, the applicant’s LOR dated 23 Mar 21 and referral OPR ending 2 Apr 21 document the applicant’s infractions.  Accordingly, the Board finds no evidence the applicant was denied due process.  The applicant also contends he did not violate any tenant/landlord rules. The Boards finds this unresolved but immaterial to the decision to not promote the applicant via the PV promotion program.  The Board agrees with counsel the LOR was not issued in a timely manner and the misconduct three and five years earlier was included in his OPR for the period ending 2 Apr 21.  However, the Board finds his commander’s statements they were not aware of his residing at the senior master sergeant’s resident while not paying rent and that he had made a false statement regarding the PV promotion until Mar 21 as reasonable explanations for the lateness. 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-2021-03678 in Executive Session on 21 Apr 22 and 17 Oct 22:

 , 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 18 Nov 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, 151 ARW/IG, w/atchs, dated 5 Nov 20.
Exhibit D: Advisory Opinion, NGB/A1PO, dated 19 Jan 22.  
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 20 Jan 22.
Exhibit F:	Applicant’s Response, w/atchs, undated.
Exhibit G: Advisory Opinion, ITANG/SSJA, w/atchs, dated 26 Feb 22.
Exhibit H: Advisory Opinion, NGB/A1PO, w/atchs, dated 2 Mar. 22.
Exhibit I:  Notification of Advisory, SAF/MRBC to Applicant, dated 7 Mar 22.  
Exhibit J: Email, SAF/IG, dated 29 Mar 22 (WITHDRAWN).
Exhibit L: Applicant’s Response, w/atchs, dated 14 Sep 22.  
 
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.