RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03820

XXXXXXXXXXXXXX	COUNSEL: NONE
	 
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

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

1.   He receive pay and allowance for Tokyo, Japan for the period of 26 Jun 21 to 31 Aug 21, where he teleworked.  

2.  His active duty orders be amended to show his operating location (OL) reflect Tokyo and he receive the correct overseas housing allowance (OHA) and cost of living allowance (COLA).  

APPLICANT’S CONTENTIONS

After invoking sanctuary, his commander outside of her authority ordered the rescinding of the extension of his orders and curtailed his tour without cause in violation of 10 U.S.C. § 12686(a).  The Air Force Reserve Command (AFRC) then placed him on an Active Guard Reserve (AGR) tour.  The AGR order required him to be reassigned on a permanent change of station (PCS) to Robins AFB, GA with a 1 Sep 21 report not later than date (RNLTD) to finish out his service until his retirement on 1 May 22.  This was also in violation of 10 U.S.C. § 12686(a), which states a member may not be involuntarily released from duty where he invoked sanctuary before becoming eligible for that pay.  He should have been allowed to remain in Japan with all pay and allowances rather than being reassigned.  

AFRC/DPAA refuses to modify his orders to allow him to receive the pay and allowance for his telework period.  The AF/A1 Telework and Remote Work Guide, dated 14 May 21 states an operating location (OL) must have been established.  It also states the alternate duty location (ADL) is a location away from the permanent duty station (PDS) that has been approved for the performance of assigned official duties and other approved activities.  It may be a service member’s home, telework center or other approved worksite codified on the completed DD Form 2946, Telework Agreement.  Service member’s allowances and entitlements is based on the approved OL and not the location of the owning organization.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force lieutenant colonel (O-5).  

AF Form 938, Request and Authorization for Active Duty Training/Active Duty Tour, dated 27 Mar 19, placed the applicant on military personnel appropriation (MPA) orders for the period of 30 Mar 19 to 30 Sep 19.  It shows his unit of assignment location was Scott AFB, IL.  His current address was in Belleville, IL and he would report to Air Force Element, Yokota AB, Japan.  

On 17 Apr 19, the applicant signed the Statement of Understanding (SOU) Waiver of Active Duty (AD) Sanctuary to perform a period of active duty from 30 Mar 19 to 24 Sep 19.  The SOU stated if he served the period of active duty offered, he would then serve on active duty within two years of becoming eligible for retired pay and that he could not be involuntarily released from active duty without approval by the Secretary of the Air Force (SecAF) before he became eligible for retired pay.  The waiver meant he would not receive sanctuary protection even though he would be serving on active duty within two years of becoming eligible for retired pay.  On 18 Apr 19, the Readiness Integration Organization Commander (RIO/CC) approved the request to waive his sanctuary protection.    

Per MPA order dated 19 Sep 19, the applicant’s MPA tour was extended to 9 Mar 20.  The amendment stated all other provisions of the original order remained the same.  

Per MPA order dated 21 Oct 19, the applicant’s MPA order was extended to 30 Sep 20, all other provisions remained the same.  

In an email dated 25 Aug 20, AFRC/A1K informed the applicant the RIO was required to ensure he waived active duty sanctuary before approving the extension/modification of his active duty order from 9 Mar 20 to 30 Sep 20.  

The applicant provides memorandum dated 27 Aug 20 to AFRC/A1K and ARPC/DPAA, in which he submitted his claim for active duty sanctuary protection.  He stated he was aware as a result of claiming sanctuary he would become an AGR asset and eligible for assignment based on the needs of AFRC.  

Per MPA order dated 28 Sep 20, the applicant’s MPA order was extended to 28 May 21.  

Per MPA order dated 22 Jan 21, the applicant’s MPA order was extended to 28 Jul 21. 

On 20 Apr 21, his unit MPA manager informed AFRC the applicant’s MPA order had been extended to the end of the fiscal year and requested amendment of his orders.  

His commander in an email dated 21 Apr 21, stated they were unaware of his invoking sanctuary since he signed a sanctuary SOU stating he would not invoke sanctuary.  She stated since he invoked sanctuary, AFRC would be working to reassign him on a permanent change of station (PCS) to an established AGR assignment based on the needs of the Air Force.  His commander asked if he was aware that in accordance with AFI 36-2131, Administration of Sanctuary in the Air Force Reserve Components, that once there was a breach of contract, the tour would be terminated.  

On 24 Apr 21, the applicant was advised that although the sanctuary SOU states the active tour would be terminated, per AFI 36-2619, Active-Duty Operational Support (ADOS)-Active Component (AC) Man-Day Program, he was afforded a 60-day notification of tour curtailment and his tour would be curtailed to 25 Jun 21.  

On 3 May 21, the applicant filed an Article 138 complaint alleging his commander wrongfully rescinded his MPA order extending his tour to the end of the fiscal year claiming he was in breach of his contract.  He requested the early curtailment of his orders be corrected, his orders be extended to the end of the fiscal year as initially approved and he be permitted to curtail his AGR tour upon confirmation of a start date.  

Per DAF/IGQ, the applicant filed an inspector general (IG) complaint on 20 Oct 21, alleging his commander in reprisal canceled an approved extension of his active duty orders and curtailed his tour without cause.  He was then placed on PCS from his home at Yokota AB to Robins AFB for the purpose of retiring in an AGR position.  There were also multiple occurrences identified from 30 Mar 19 and onward, to include at AFRC, in violation of 10 U.S.C. § 12686.  DAF/IGQ conducted an inquiry and dismissed the complaint of reprisal.  DAF/IG found the applicant did not allege he was reprised against due to any protection communication regarding his sanctuary.  The information gathered showed the actions were not taken in reprisal but in accordance with applicable guidance in response to the curtailment of his tour and the start of his subsequent tour.  Accordingly, there was insufficient evidence to indicate wrongdoing and an inadequate basis to warrant further investigation.  Therefore, his complaint was dismissed and they closed the case.  The AF/RE also responded to his Congressman stating that while the applicant on 28 Apr 21 requested to update his residence to reflect Japan instead of his primary residence of Omaha, NE, his AGR assignment order began in Nebraska with reporting instructions to Robins AFB.  In accordance with the Joint Travel Regulation (JTR), the applicant had PCS entitlements from Japan back to his original residence.  The travel allowance would reflect Omaha, NE and not Japan; however, the AGR order would not include any dependent travel from Yokota AB.    

The applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, issued 30 Apr 22, shows he performed a period of active duty from 26 Jun 21 to 30 Apr 22.  He was credited with 10 months and 5 days of active duty service.  

On 1 May 22, the applicant retired in the rank of lieutenant colonel per special order dated 11 Apr 22.  He was credited with 20 years and 16 days of active service for retirement.  

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

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

AFRC/A1K recommends denial.  The evidence points to a telework arrangement (not remote work).  There was no authorization an operating location (OL) was established for remote work from Yokota AB.  The applicant has provided no proof or documentation he was authorized or approved to operate in a remote work status.  The applicant started his AGR assignment order, which authorized him to telework from Yokota AB starting 26 Jun 21 to 31 Aug 21, with a delayed reporting to Robins AFB, GA no later than 1 Sep 21.  

The Headquarters Air Force Telework/Remote Work Guide, dated 14 May 21 defines telework for service members as a work arrangement where a service member performs assigned official duties and other authorized activities at an approved alternative duty location (ADL) on a regular, recurring or a situational basis.  Remote work is an arrangement in which the service member is assigned to a unit, but does not work in the vicinity of the unit.  For a service member to perform remote work, an OL must have been established.  

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 13 Apr 22 for comment (Exhibit D), 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 recommendation of AFRC/A1K and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant asserts his commander ordered the cancellation of his MPA tour extension in Japan in reprisal for making protected communication; however, the Board finds no evidence the applicant was reprised against per 10 U.S.C. § 1034.  In this respect, the Board agrees with the DAF/IGQ finding there was no evidence of reprisal and the cancellation of the MPA tour extension and placement on an AGR tour were within established procedures and policy.  The applicant also contends his reassignment on an AGR tour at Robins AFB violated his sanctuary status; however, the Board notes on 17 Apr 19, the applicant signed the SOU Waiver of Active Duty Sanctuary Tour for the period of 30 May 19 to 24 Sep 19 and the extension orders stated the provisions of the initial tour remained.   The applicant also requests the Board amend his AGR order to show his OL was Tokyo, Japan so he may be entitled to OHA and COLA.  However, there is no evidence he was approved for remote work with Tokyo, Japan as the OL in accordance with the Air Force Telework and Remote Work Guide dated 14 May 21.  Accordingly, the Board does not find it in the interest of justice to amend his AGR order to permit receipt of additional allowances he was not entitled to receive. Therefore, the Board 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 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-2021-03820 in Executive Session on 31 May 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 10 Dec 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Memorandum, DAF//IGQ, w/atchs, dated 27 Jan 22 (WITHDRAWN).  
Exhibit D:	Advisory Opinion, AFRC/A1K, w/atchs, dated 12 Apr 22.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 13 Apr 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.