RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02308

XXXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Substantiated Investigation Without Written Command Action, dated 23 Feb 21 and the attached Adverse Information Summary (AIS) be removed from her record.  

APPLICANT’S CONTENTIONS

The derogatory file was unjustly filed in her record.  Per her area defense counsel (ADC), the inspector general (IG) investigation failed to abide by regulations governing the conduct of the investigation.  As a result, the findings are legally insufficient.  She is also suspicious of reprisal and provided a written and verbal report of harassment and bullying by her supervisor who conducted the investigation against her.  She has provided a preponderance of evidence substantiating proof to rebuke the allegations.  The rebuttals requested and provided to her group commander (GP/CC) were required to be provided to AFPC; however, all of the documents/attachments were not included.  This left out important evidence to rebuke the allegations.  The derogatory file is impacting her career negatively in regards to promotion and other career enhancement opportunities.  

An IG investigation against her was closed on 9 Oct 20.  She was notified AFPC initiated the request for her command to provide an AIS, a signed memorandum for record (MFR) and a rebuttal response from her if she chose to submit them.  The rebuttal requested was for the AIS with allegations she failed to adequately in-process and train one her subordinates and created a hostile and toxic work environment.  The unit was a toxic environment before she assumed her position.  On her first day in the unit, she was approached by members of her unit regarding gossip, inappropriate dress and appearance and the utilization manager resigned sending an e-mail describing the culture of the work environment.  She discussed the issues with members of her unit and was faced with insubordination and employees taking extended lunch hours.  Case managers undermined her authority and reputation with the new GP/CC.  The AIS implies she was terminated from her position.  However, after two years of harassment from subordinates and a year of harassment and bullying by her supervisor, she met with the GP/CC on 22 Sep 20 with an MFR that she read requesting she be moved to a new work center.   

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a currently serving major (O-4) in the Air Force.

The applicant provides a memorandum from her wing IG to her GP/CC dated 9 Oct 20, indicating completion of the IG referral report (FRNO XXXX-XXXXX).  The findings of the investigation are as follows:

	Allegation 1.  The applicant failed to adequately in-process and train the complainant. (SUBSTANTIATED).  

	Allegation 2.  The applicant formed a hostile and toxic work environment by inaction and abdication of responsibility.  (SUBSTANTIATED).  

The investigating officer (IO) stated although both allegations were substantiated based upon the preponderance of evidence, the investigation demonstrated the toxic environment was not solely due to the applicant.  However, the investigation made clear the applicant was incapable of rectifying the situation.  Thus, the applicant was transferred to another duty section.  

On 16 Nov 20, the applicant was notified by her wing commander she was not selected for promotion to lieutenant colonel (O-5) by the CY20C Lieutenant Colonel (Chaplain/Nurse Corps) Selection Board.  However, she was selected for continuation.

On 19 Nov 20, the applicant accepted selective continuation to 24 years total active federal commission service.  

The applicant’s automated records management system (ARMS) record includes a memorandum from her group commander titled “Substantiated Investigation Without Written Command Action” dated 23 Feb 21, AIS and the applicant’s MFR dated 25 Feb 21.  The AIS was referred to the applicant for comment before it was filed in her master personnel records (MPR) and officer selection record (OSR) in accordance with DAFPM 2020-36-03, Adverse Information for Total Force Officer Selection Boards.  On 24 Feb 21, the applicant acknowledged the memorandum and on 1 Mar 20 provided a MFR dated 25 Feb 21, with attachments, to include from her ADC who stated there were substantial errors in the investigative process and the case was legally insufficient.  The ADC stated the allegations should not be considered substantiated because the conclusion was reached by an IO without authority and did not follow guidance.  The IO also never interviewed the applicant or provided her the opportunity to respond to the allegations.  As a result, the investigation’s findings should not be considered by the promotion board in evaluating the applicant’s fitness for service in the higher grade.  

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

APPLICABLE AUTHORITY/GUIDANCE

AFI 36-2608, Military Personnel Records Systems, Required Adverse Documents, paragraph 2.2.2.3.1, Any substantiated adverse finding(s) or conclusion(s) from an officially documented investigation or inquiry, regardless of whether command action was taken as a result.  This may include, but is not limited to, commander directed investigations (CDI), IG and equal opportunity investigations.  In those cases where written command action was not taken, the substantiated findings are filed in the OSR via a MFR capturing the details of the investigation, findings and rationale for no command action.  

AFI 90-301, Inspector General Complaints Resolutions, Table 3.11, When to Refer a Complaint, Rule 1, The complaint is a matter not appropriate for the IG complaints resolution program.  Refer the complaint and the referral completion report template to the office having functional responsibility.  

AIR FORCE EVALUATION

DAF/IGQ states the IG correctly reviewed/analyzed the subject matter of the complaint and referred the matter to command in accordance with AFI 90-301, chapter 3.  The complaint named the applicant as the subject and the issues brought to the IG were appropriate for command channels.  The IG referred the issues to the command for resolution and instructed the commander to return a Referral Completion Report (RCR) to the IG for case closure.  The RCR provides the IG with the details of what action was taken by the commander to resolve the issues brought to the IG’s attention.  This was completed in accordance with AFI 90-301, Table 3.11, Note 1, the issues were not appropriate for the IG Complaints Resolution Program.  

The IG did not conduct an investigation with regards to the complaint and it was appropriately referred to command for action and resolution.  The commander conducted interviews, collected evidence, and then documented the analysis of the findings in a report of investigation (ROI).  The ROI substantiated two allegations against the applicant.  It is important to note, the derogatory file titled “Substantiated Investigation Without Written Command Action” dated 23 Feb 21 is created and signed by the commander.  

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 1 Sep 21 for comment (Exhibit D), and the applicant replied on 30 Sep 21.  In her response, she contends the advisory opinion shows the documentation submitted was a CDI and not an IG investigation.  The materials she received were ambiguous to what type of investigation was conducted.  However, if it was a CDI, the critiques of the investigation are still valid since procedures were not followed.  Due to the procedural flaws of the investigation, her substantiated rebuttal of both allegations was not taken into account and was not included in the ROI.  The flaws of the investigation are glaring.  She was never notified of an investigation until she was asked to sign the ROI almost five months after the conclusion of the investigation.  At that time, she provided a rebuttal, which was sent to the commander.  However, after reviewing the document sent to AFPC, much of her submission was removed to include supporting evidence to rebut the allegations.  She provides those documents with her case.  She asks the Board to recognize the deficiency of the unjust investigation and remove it from her record.  

The applicant’s complete response is at Exhibit E.

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 DAF/IGQ and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant contends the investigative process was flawed and unjust; however, she has provided insufficient evidence to substantiate the investigation was not conducted in accordance with AFI 90-301 or that the AIS was improperly placed in her records.  Based on the evidence, the Substantiated Investigation Without Written Command Action was based on two substantiated allegations and required to be placed in her records per AFI 36-2608.  The applicant also contends she was bullied and reprised against; however, she has provided no evidence to substantiate this to be the case.  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-2021-02308 in Executive Session on 20 and 25 Oct 21:

 , 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 5 Jul 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/IGQ, w/atchs, dated 1 Sep 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 1 Sep 21.
Exhibit E:	Applicant’s Response, w/atchs, dated DD 30 Sep 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.