RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02379

XXXXXXXXXXXX	COUNSEL: NONE	 

  		HEARING REQUESTED: YES 

APPLICANT’S REQUEST

He requests the group and wing level stratification, push for command assignment and endorsement for senior development education (SDE) on his 2018 and 2019 officer performance reports (OPRs) be changed based on substantiated allegations of reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, and 10 U.S.C. § 1034.

APPLICANT’S CONTENTIONS

Based on the Inspector General (IG) findings and recommendation, he requests correction of his OPRs.  His documented record of performance prior to, during and after the reprisal actions justify a higher group and wing stratification.  He should have received the“#1” squadron commander stratification for the group in 2018 and 2019 and “#4” for the wing in 2018 and a higher number stratification in 2019.   He requests the OPRs be corrected rather than redacted as they will affect his promotion recommendation for the grade of colonel (O-6) in 2022 and SDE designation.  

Prior to reprisal, he was an Air War College Outstanding Graduate, his major command’s (MAJCOM) field grade officer of the year, stratified “1 of 16 Director of Operations” and hired internally for command by the outgoing wing commander.  He transformed a fledging unit into a high performing team.  However, the transformation took place amid resistance, turmoil and reprisal from the group commander (GP/CC), who was later removed and retired with a reduction in grade.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

His AF Form 707, Officer Performance Report (Lt thru Col), for reporting period ending 1 Feb 19, shows the rater and additional rater recommended SDE in-residence but did not include any stratification statement or command recommendations.  

The AF Form 707 for reporting period ending 1 Feb 20, shows his rater stratified him as “2/4” lieutenant colonels, “#2/3” superstar squadron commanders, stated he was on track for group command and recommended SDE.  The additional rater’s statement included a recommendation for SDE but did not include any stratification statements or push for command.  

SAF/IGQ provides the Report of Investigation (ROI) prepared by the applicant’s MAJCOM/IG concerning allegations of reprisal and restriction for the period of 17 May 19 to 22 Jul 19, (DCATS Number 20190505-057877-Case 1/02). Which shows the following allegations:   

	Allegation 1:  On or about 6 Feb 19, the GP/CC denied the applicant a favorable stratification resulting in a downgraded OPR (reporting period 2 Feb 18 to 1 Feb 19) in reprisal for making protected communication. (SUBSTANTIATED).  The evidence indicated due to the GP/CC’s feelings of betrayal, distrust and disloyal behavior, the applicant was denied a favorable stratification in reprisal for reporting the GP/CC’s toxic leadership to the wing vice commander (WG/CV).  

Allegation 2:    On or about 11 Mar 19, the GP/CC did not recommend the applicant for consideration to attend a SDE course in reprisal for making protected communication.  (NOT SUBSTANTIATED).  The evidence indicated the GP/CC did recommend the applicant for SDE.

Allegation 3:  On or about 9 May 19, the GP/CC withheld a favorable personnel action by not forwarding his request for nomination for squadron command in reprisal for making a protected communication (SUBSTANTIATED).  The evidence indicated the GP/CC sustained a level of animosity against the applicant for making his protected communication to the WG/CV.  The GP/CC confronted both his squadron commanders to see if they had made the complaint and indicated a feeling of disdain against the person who made the complaint.  When the applicant told the GP/CC he was the one who made the complaint, his treatment changed for the worse.  The feelings of betrayal, distrust and disloyalty played a significant role in the GP/CC’s eyes, which resulted in not forwarding coordination on the applicant’s letter of intent for squadron command.

Allegation 4:  On or about 6 Sep 18, the GP/CC told him that reporting violations to the wing was dangerous and disloyal, causing the applicant to believe he was restricted from reporting violations to the IG.  (SUBSTANTIATED).  The IO concluded the GP/CC attempted to restrict the applicant in violation of 10 U.S.C. § 1034.  

Allegation 5:  On or about early Apr 19, the GP/CC told the applicant and other members he intended to take action against two IG complainants for potentially lying in their IG complaints to dissuade the applicant or anyone else from reporting violations to the IG.  (SUBSTANTIATED).  The IO concluded the GP/CC attempted to restrict the applicant in violation of 10 U.S.C. § 1034.  

The IO recommended the commander take appropriate corrective actions regarding the substantiated findings and the applicant petition the AFBCMR for correction of his records based on the substantiated findings.  

The applicant provides a memorandum from his MAJCOM IG dated 3 Feb 20, which states the IG conducted an investigation in the applicant’s 22 Apr 19 complaint of reprisal and restriction. On 23 Jan 20, the SAF/IGQ reviewed the ROI and forwarded the case to the Department of Defense (DOD) IG Whistleblower Reprisal Investigations Directorate.  On 31 Jan 20, the DOD IG approved the findings of the investigation.  The provided IG summary reflects the above allegations were substantiated; however, the ROI showed Allegation 2 was not substantiated.  
	
For more information, see the excerpt of the applicant’s record at Exhibit B and the applicable authority/guidance.  

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, The evaluation report appeals board (ERAB) will not consider nor approve requests to 10.2.4.1. Void an evaluation when the error or injustice can be corrected administratively. 10.2.4.2. Void an evaluation while keeping attachments to that evaluation. 10.2.4.3. Void an evaluator's section while keeping comments or ratings of subsequent evaluators. 10.2.4.4. Void an evaluator's comments, but keep the ratings (or vice versa). 10.2.4.5. Delete required information or add unauthorized information to an evaluation. 10.2.4.6. Change (except for deletions) an evaluator’s ratings or comments if the evaluator does not support the change. When an evaluator supports changing ratings, all subsequent evaluators must also agree to the changes (including the commander on EPRs, the reviewer on OPRs, and the Management Level Review Board President on PRFs). (T-1). Justification is required from the original evaluators. See Attachment 2, paragraph A2.3. 10.2.4.7. Re-accomplish an evaluation without the applicant furnishing the new evaluation.

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 the victim of an error or injustice.  As evidenced by the ROI provided by SAF/IGQ and the substantiated allegations of reprisal, the applicant was the victim of reprisal for making protected communication in violation of 10 U.S.C. § 1034 and AFI 90-301.  While the applicant did not previously apply to the ERAB for correction of his OPRs, the requested corrections are outside the purview of the ERAB per AFI 36-2406; therefore, the Board finds his application is ripe for adjudication by the Board.  The applicant requests his OPRs for the reporting periods ending 1 Feb 19 and 1 Feb 20 be changed to include group and wing level stratification, push for command and recommendation for SDE.   He contends he should have received the “#1 squadron commander” for the group” and “#4 squadron commander” for the wing for his OPR, with close out date 1 Feb 19.  He also contends he would have received a higher wing stratification for the OPR, which closed out on 1 Feb 20.  However, it is not possible for the Board to know how the applicant would have stacked and racked against his peers or that he would have been stratified as he contends.  In this respect, the Board recommends his additional rater/wing commander at the time of the close out of the OPRs be directed to re-write the AF Forms 707, Section V. Additional Rater Overall Assessment, to include any stratification and recommendations for command and SDE the applicant would have received had it not been for the substantiated allegations of reprisal.  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the applicant’s request.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

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 pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show his AF Forms 707, Officer Performance Reports (Lt thru Col), Section V. Additional Rater Overall Assessment, for reporting periods of 2 Feb 18 to 1 Feb 19 and 2 Feb 19 to 1 Feb 20, be revised by the additional rater/wing commander, to include any appropriate stratification statements and recommendations for command duty and senior development education (SDE). 

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-2021-02379 in Executive Session on 1 Feb and 22 Feb 22:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 12 Jul 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Applicable Authority/Guidance, AFI 36-2406.  
Exhibit D:	SAF/IGQ, ROI (WITHDRAWN).  

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.