RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01511

XXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.   His demotion to senior airman be revoked.

2.   His reenlistment eligibility (RE) code be changed to allow him to reenlist.

APPLICANT’S CONTENTIONS

He was unjustly demoted to senior airman as a result of retaliation against him for filing an Equal Employment Opportunity (EEO) complaint and an Inspector General (IG) Whistleblower complaint.  These complaints were filed due to his leadership’s attempts to stymie his involvement as a Victim Advocate in the XXXXX Air National Guard (ANG) Sexual Assault Prevention Response (SAPR) program.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former ANG senior airman (E-4). 

On 14 Mar 19, the applicant filed an IG complaint, FRNO XXXXX, with the XXX WG/IG alleging of a plaque in the workplace communicating unprofessional relationships and inappropriate conduct.  On 28 Aug 19, the case was closed stating the inquiry substantiated the above allegation and has found that appropriate action by unit leadership has occurred. 

On 11 Apr 19, the commander appointed an official to conduct a Command Directed Investigation (CDI).  The CDI was conducted from 15 Apr 19 to 9 May 19 to determine if the applicant had a qualifying convection, a misdemeanor crime of domestic violence, under the Lautenberg Amendment.  The investigation substantiated the allegation finding the applicant was convicted on or about 3 Mar 05 for disorderly conduct, domestic violence related, by a civilian court which is a qualifying convection under the Lautenberg Amendment.

Dated 12 Sep 19, a letter to the applicant from the Secretary of the Air Force Inspector General, Complaints Resolution Directorate (SAF/IGQ) indicates the applicant’s complaint, FRNO XXXXXX, was dismissed.  The XXXXX/IG conducted a complaint analysis into the allegations of reprisal and abuse of authority and concluded the responsible management officials did not reprise against him or abuse their authority.  SAF/IGQ reviewed the report and concurred with that conclusion.  The Department of Defense Inspector General, Whistleblower Reprisal Investigations (IG DoD/WRI), concurred with the determination and in accordance with DoD policy, approved the report and dismissed the issues.
	
On 15 Jan 20, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged in the grade of senior airman (E-4) after serving 4 years, 6 months, and 15 days of active duty.  He was discharged, with a narrative reason for separation of “Misconduct (Minor Infractions).”  His reentry (RE) code is listed as N/A.

On 15 Jan 20, NGB Form 22, National Guard Bureau Report of Separation and Record of Service, indicates the applicant was honorably discharged from the XXXXX Air National Guard for misconduct, a pattern of minor disciplinary infractions with a RE code of “6H” which denotes “Pending Discharge-Involuntary” and not eligible to reenlist.

For more information, see the excerpt of the applicant’s record at Exhibit B, the advisories at Exhibits C and G and the Investigation Reports at Exhibits E and F.

AIR FORCE EVALUATION

NGB/A1PP recommends denying the applicant’s request to correct his grade and RE code on his DD Form 214 and his NGB Form 22.  The codes listed on the documents fit with the misconduct reasons that unit leadership chose to use.  NGB/A1PP can only advise as to whether the reason codes listed on the separation documents are correct in accordance with AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members.  With respect to the discrimination claims, we recommend JA review the case and make a legal determination as to whether the decision to separate the member for cause was in fact a retaliation against the member based on discrimination.  The applicant was involved in two separate racial discrimination complaints with his unit leadership as well as an IG complaint involving the posting of highly offensive and inappropriate material in the workplace by high immediate supervisor.  The first complaint was an information resolution request (IRR) with his state equal employment manager (SEEM) on or about 26 Jul 18.  The second was on or about 8 Feb 19 after the applicant claimed a gross mishandling of the IRR complaint previously submitted.  Both of these complaints were with regards to the applicant being targeted for mistreatment based on his newly assigned SAPR duties. Additionally, a separate IG complaint was initiated by the applicant on or about 14 Mar 19, involving his supervisor’s display of a highly offensive and inappropriate plaque posted in the workplace.  Per the applicant’s claim, unit leadership retaliated against him because of these complaints with the use of a backdated individual counseling session (AF Form 174).  Additionally, the applicant claims subsequent adverse personnel actions were taken against him by his chain of command which would be predicated off this AF Form 174.  The actions culminated in the demotion of the applicant, as well as the narrative reason for separation as “misconduct minor infractions” listed on the DD Form 214 as well as the reason given on the NGB Form 22 stating, “misconduct-pattern-minor disciplinary infraction-SPD JKN.”

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 19 Nov 21 for comment (Exhibit D), but has received no response.

ADDITIONAL AIR FORCE EVALUATION

DAF/JA recommends denying the applicant’s request to restore his grade to staff sergeant and remove all separation codes from his record that would bar his reentry into the service.  The squadron commander and the Adjutant General of the XXXXX National Guard did not abuse discretion in administering any of the disciplinary actions, administrative actions, or separation actions, to include the applicant’s demotion and separation code.  The actions taken were within the permissible range for the applicant’s conduct, and within the commander’s and the Adjutant General’s discretion.  Prior to his demotion, he had received numerous administrative disciplinary actions, including verbal and written counseling.  The basis of demotion was AFI 36-2502, Enlisted Airman Promotion and Demotion Programs, paragraph 9.4.2. titled “Failure to fulfill non-commissioned officers (NCO) Responsibilities,” and AFH 36-2618, The Enlisted Force Structure,  paragraph 4.4.1. requiring NCOs to exhibit professional behavior, military bearing, and respect for authority.

The complete advisory opinion is at Exhibit G.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 1 Feb 22 for comment (Exhibit H), 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 NGB/A1PP and DAF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, the Board found the squadron commander and the Adjutant General of the XXXXX National Guard did not abuse discretion in administering any of the disciplinary actions, administrative actions, or separation actions, to include the applicant’s demotion and separation code.  The actions taken were within the permissible range for the applicant’s conduct, and within the commander’s and the Adjutant General’s discretion.  Nor were the codes listed on the applicant’s separation documents incorrect in accordance with AFI 36-3209.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant alleges he has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC § 1034).  The Board noted the applicant filed a complaint with the IG Office and a complaint analysis was conducted into the allegations of reprisal and abuse of authority, however, the IG Office concluded the responsible management officials did not reprise against him or abuse their authority.  Nevertheless, in accordance with 10 USC § 1034, the Board reviewed the evidence of record to reach its own independent determination of whether reprisal occurred.  Based on the Board’s review, they do not conclude the applicant has been the victim of reprisal stating the applicant failed to establish his leadership reprised against him or abused their authority based on discrimination.  Therefore, the Board does not find the applicant has been the victim of reprisal pursuant to 10 USC. Section 1034.  

5.  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-2021-01511 in Executive Session on 15 Dec 21 and 16 Mar 22:

, Panel Chair
, Panel Member
, 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 20 Jan 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, NGB/A1PP, w/atch, dated 18 Aug 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 19 Nov 21.
Exhibit E: CDI Case File, dated 9 May 19 - WITHDRAWN.
Exhibit F: IG Case Files - WITHDRAWN.
Exhibit G: Advisory Opinion, DAF/JA, dated 31 Jan 22.
Exhibit H: Notification of Advisory, SAF/MRBC to Applicant, dated 1 Feb 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.