RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00092

XXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXX

  	HEARING REQUESTED:  YES	 

APPLICANT’S REQUEST

The following corrections be made based on allegations of reprisal pursuant to DoDD 7050.06, Military Whistleblower Protection, and 10 U.S.C. § 1034.   

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

 2.  All derogatory information be removed from his record.  

3.  He be promoted to the grade of senior master sergeant (E-8) and receive the associated back pay.

APPLICANT’S CONTENTIONS

He has exhausted all appeals.  The evaluations report appeals board (ERAB) denied his request for removal of the retaliatory and inequitable EPR.  There are procedural and equitable errors in regards to the derogatory information and the report.  

Counsel, on behalf of the applicant, states his client was directly injured by systemic racial disparity and cites the Air Force Inspector General (IG) Independent Racial Disparity Review Report of Inquiry (ROI) dated Dec 20.  As a Black male senior noncommissioned officer (SNCO), he has experienced racial bias and disparity throughout his career.  The information in his record continues to be used as a means to hamper his career.  The Board should factor in that race contributed to some of the negative actions of his command that caused him not to be promoted and to have received unwarranted administrative disciplinary action.  If he were allowed to compete on equal footing, he would be promoted.

The IG report found letters of reprimand (LOR), letters of admonishment (LOA) and letters of counseling (LOC) were three times more likely to occur for Black males.  He was the subject of racial disparity. He was called into the commander’s office and questioned about his skills and qualifications.  This does not happen to white male SNCOs.  They are considered to be fully qualified, while the applicant with 18 years of service was considered to be in training for a job he was promoted to do.  His record speaks for itself.  He had exemplary accomplishments and service and wishes to continue his military service.  

Within 45 days of being assigned his rater, his career spiraled downward.  He received an adverse action against him every other Friday.  He received an LOR and a record of individual counseling (RIC) for errors and incongruous data on a report he completed.  He did not edit the notes from flight superintendents that had run-on sentences and punctuation errors.  This had not been a problem previously and his supervisor apologized.  His supervisor gave him more responsibility and updated his duty title.  Then in less than 24 hours, he received his latest LOR and was removed from his duties for reasons unknown to him and his area defense counsel (ADC).  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force master sergeant (E-7).

The applicant received a referral EPR for the reporting period 1 Oct 17 to 30 Sep 18.  The EPR states the applicant received an LOR and his performance was sub-par, which led to multiple production discrepancies.  He lacked program ownership, communicated ineffectively and was removed from his position.  In his response to the EPR dated 23 Oct 18, he states he did not mismanage the program.  There were discrepancies prior to his arrival and he assumed responsibility in uncovering and resolving the discrepancies to better posture the squadron.  He also stated his ADC requested specifics to the LOR dated 25 Sep 18; however, his rater declined to provide the clarification.  It was unclear how he did not meet expectations, how he was disrespectful or how his performance was sub-par.  Within the time he was assigned to the flight, his rater had selected him as the SNCO of the quarter nominee and offered to nominate him to attend a sister service enlisted professional military education (PME) course.  The positive acts do not reflect the actions taken against him in the span of 25 days reflected in the report.  The RIC dated 14 Sep 18, attached to the applicant’s response states he was counseled for presenting an inaccurate and poor quality product to the commander.  

On 6 May 19, the applicant was notified the ERAB denied his request for removal of the referral EPR.  The board was not convinced there was an error or injustice based on the evidence and the absence of any input from the rating chain.

The applicant was ineligible for promotion to senior master sergeant for the Calendar Year (CY) 19E8 board due to the referral EPR.  He was considered but not selected by the CY20E8 and CY21E8 promotion cycles.  

The Air Force IG Case File Worksheet generated 14 Apr 21, shows the applicant filed an IG complaint on 13 Mar 19 and the case was closed on 25 Mar 19.  The nature of the complaint was lack of feedback.  The applicant was advised he was covered under the Whistleblower Protection.  He was also advised that from an IG perspective the only violation that may have occurred was not receiving a mid-term feedback within 30 days of requesting one in accordance with AFI 36-2406, Officer and Enlisted Evaluations Systems, paragraph 2.2.  The applicant did not return the AF Form 102, Inspector General Complaint Form, or further contact the IG office.  The case was closed.  
 
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/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.  

AFI 36-2406, Officer and Enlisted Evaluations Systems, paragraph 1.10, Referral Evaluations. Referral procedures are established to allow the ratee due process by giving the ratee an opportunity to respond and/or rebut any negative ratings or comments before it becomes a matter of record.  It also allows evaluators to consider all the facts, including any they may not have been aware of, prior to the evaluation becoming a matter of record.

AFI 36-2907, Adverse Administrative Actions, paragraph 4.1.3, Standard of Proof.  While no specific standard of proof applies to administrative action proceedings, commanders should utilize the “preponderance of the evidence” standard when evaluating the evidence and every element of the offenses committed.  A preponderance of the evidence means simply the greater weight of credible evidence.  When such proof is available, it should be considered before initiating administrative actions.  

AFI 36-2502, Enlisted Airman Promotion and Demotion Programs, Table 1.2, Determining Ineligibility for Promotion for Regular Air Force Airmen, a referral report renders an airman ineligible for promotion during the respective promotion cycle.  

The Inspector General Department of the Air Force, Report of Inquiry (ROI), Independent Racial Disparity Review, Dec 20, The Independent Review confirmed racial disparity exists for Black service members in law enforcement apprehensions, criminal investigations, military justice, administrative separations, placement into occupational career fields, certain promotion rates, professional military educational development and leadership opportunities.  While the data shows racial disparity, it did not indicate causality.  Administrative Disciplinary Actions, Unlike Articles 15 and courts-martial, there is no requirement for supervisors, first sergeants or commanders to consult with the base legal office on administrative disciplinary actions.  There is no tracking of whether supervisors and commanders issue LORs, LOAs and LOCs in a similar manner, magnitude and frequency to enlisted members, regardless of race, gender or ethnicity.   

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denial for removal of derogatory information.  The commander and supervisor have authority to issue an LOR in accordance with AFI 36-2907 and per paragraph 4.1.3, there is no requirement to prove any allegations beyond a reasonable doubt.  Further, there is no action to remove the LOR as it was not filed in his military record. 

The complete advisory opinion is at Exhibit D.

AFPC/DP3SP recommends denial for removal of the referral EPR.  The applicant filed an ERAB, which was denied.  The applicant received a referral EPR after receiving three corrective actions in less than 25 calendar days, an LOR dated 31 Aug 18, downgraded to a letter of admonishment, a RIC dated 14 Sep and 18 and an LOR dated 25 Sep 18, relieving him of his duties.  

The complete advisory opinion is at Exhibit E.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the counsel and the applicant on 7 Jul 21 for comment (Exhibit F).  Counsel states the applicant has been directly injured by the systemic racial disparity found in the Air Force.  The Air Force has not provided a means or offered any long-term solution for the racial disparity but suggests a fix must be found.   As a Black male senior noncommissioned officer (SNCO) in the Air Force, he experienced throughout his career racial bias and disparity.  The Board should factor in the reality of what it means to be a Black male SNCO in the Air Force and that there is a high likelihood that race contributed to some of the negative actions of his command that caused him not to be promoted and to have received unwarranted administrative disciplinary action.  The conclusion of the ROI, Independent Racial Disparity Review says local leaders and commanders are influenced by race and have too much personal power over the career of the Black male NCO.  With no system of accountability, it becomes imperative for the Board to review the applicant’s case with an understanding that these leaders have not been held accountable for their actions.  The applicant’s record speaks for itself.  He has had exemplary accomplishments and service.  

The advisory opinions reiterate Air Force instructions but do not address relief for the disparity directly controlled by the Secretary of the Air Force.  Counsel is discouraged the advisory opinions do not address the issues presented.  The Air Force has not adequately responded to the applicant’s complaint.  

The complete response is at Exhibit H.  

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/DP2SSM and AFPC/DP3SP and finds a preponderance of the evidence does not substantiate the applicant’s contentions to warrant removal of his referral EPR and derogatory information from his record or that he be promoted to the grade of E-8.   Counsel argues the applicant’s LOR, RIC, and referral EPR were retaliatory, inequitable and he was injured by systemic racial disparity and cites the Air Force IG ROI, Independent Racial Disparity Review.  Counsel also contends the applicant would have been promoted to the grade of E-8 if allowed to compete on equal footing.  However, other than his own uncorroborated assertions, counsel has provided insufficient evidence the applicant was reprised against due to race.  Moreover, the Board notes the applicant acknowledges he did not make the corrections to the reports he prepared for his commander and that he would be naïve to believe he was at no fault.  While the applicant may not have anticipated the actions taken against him, there is no evidence he was the victim of racial disparity or that the referral EPR, LOR, or RIC were issued unjustly or in violation of Air Force instructions.  Therefore, the Board recommends against correcting the applicant’s records. Furthermore, counsel has not established that the applicant made a protected communication or that the aforementioned derogatory actions were rendered in retaliation for making a protected communication.  In view of the foregoing and in the absence of persuasive evidence to the contrary, the Board does not find the applicant has been the victim of reprisal pursuant to 10 U.S.C. § 1034 to warrant granting any of the requested relief.

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-2021-00092 in Executive Session on 11 Aug 21 and 27 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 22 Sep 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  IG Case File Worksheet (2019-05131), dated 14 Apr 21 (WITHDRAWN).
Exhibit D:	Advisory Opinion, AFPC/DP2SSM, dated 28 Apr 21.
Exhibit E:  Advisory Opinion, AFPC/DP3SP, dated 2 Jul 21.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 7 Jul 21.
Exhibit G:  AF IG ROI Independent Racial Disparity Review, dated Dec 20.  
Exhibit H:  Counsel’s response, w/atch, undated.  

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.