RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02580

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXX
	 
  	HEARING REQUESTED: NO	 

APPLICANT’S REQUEST

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

1.   His letters of reprimand (LOR) dated 13 Jun 17 and 26 Jan 18 be removed from his record; or in the alternative, they be placed in a secured file.  

2.   His referral officer performance report (OPR) for the reporting period ending 1 Nov 18 be removed from his record.  

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, states he was the subject of a baseless investigation conducted after fraudulent accusations were made in reprisal for making protected communications concerning another investigation.  The commander directed investigation (CDI) was conducted by a biased investigating officer (IO) who had close personal ties with the complainant.  The IO failed to establish the requisite elements by a preponderance of the evidence, rendering the findings legally insufficient.  As such, the LORs based on two separate CDIs must be removed in the interest of justice.  The CDI reviewing officer was so disgusted with the egregiously biased CDI, he asked to be recused as the IO.  The OPR was premised on the same factually and legally insufficient conclusions reached by the IOs.  

The first CDI was conducted after he was falsely accused of misconduct, to include having a sexual relationship with a married female officer and engaging in an inappropriate relationship, which was prejudicial to good order and discipline.  He and the female officer vehemently denied engaging in sexual intercourse while inside a vault and the CDI concluded there was not enough evidence to substantiate the allegation.   The complainant received a less than favorable OPR from the female officer and was exhibiting concerning behavior.  Further, during the investigation, several witnesses came forward and provided statements contradicting the complainant.  Despite the overwhelming statements indicating nothing inappropriate occurred, the IO substantiated the allegation.  The IO engaged in gender stereotypes and concluded a male and female service member should not be seen together because of perception.    

On 13 Jun 17, he received an LOR for his alleged inappropriate relationship.  In his rebuttal on 13 Dec 17, he outlined the shortcomings of the IO, to include being overly familiar with the complainant, failure to make an appropriate credibility determination and the inability to apply the facts uncovered.  

On 21 Nov 17, he received notice of a second CDI for events that occurred on 16 Oct 17.  An officer facing sexual assault/harassment allegations attempted to take pictures of him in order to coerce him into making statements on his behalf.  The Board should be aware he was the primary witness against the officer regarding sexual assault/harassment charges.

On 19 Jan 18, the IO concluded the investigation into allegations he fraternized with an enlisted member and made false official statements during the course of the investigation.  There was no evidence uncovered during the course of the investigation that he knew the woman in question was an enlisted service member.  However, on 26 Jan 18, he received an LOR for the alleged incident while on temporary duty (TDY).  

On 31 May 19, he was served with notification he was receiving a referral OPR.  The OPR contains numerous inaccuracies, false statements and other regulatory violations.  The OPR references conduct which occurred outside the rating period, to include mentioning both LORs.  In Sep 19, he submitted his rebuttal to the referred OPR and highlighted the inaccuracies, false statements and regulatory violations.

On 7 Jul 20, an IO was appointed to look into the allegations the vice commander discriminated against the applicant.  On 30 Oct 20, the IO requested to be recused stating he did not agree with the series of findings leading to the investigation.  He stated after reviewing over 1,089 documents provided by the Equal Opportunity (EO) Office, he concluded the informal resolution request (IRR) preceding the formal resolution request (FRR) insufficiently addressed the circumstances leading to the LOR.  The IRR failed to fully consider the nature of the CDI, which relied on circumstantial evidence or assumptions and not concrete evidence to materially support actions taken.  There is ample evidence to indicate that it is more likely than not that the allegations are false and were made in retaliation.  The IO in the report of investigation (ROI) noted the complainant displayed paranoid behavior and consistently brought up their less than positive OPR shortly before the allegations were made.  Several witnesses interviewed denied any inappropriate relationship had occurred.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

Counsel provides extracts of a redacted ROI showing a CDI was conducted pertaining to allegations the applicant, a married man, and [Redacted], an officer and married woman wrongfully had sexual intercourse to the prejudice of good order and discipline.  

	Allegation 1: The complainant on 4 May 17 entered the intelligence vault and discovered the applicant and [Redacted] inside a room in the vault.  There were no other direct witnesses and while the circumstantial evidence was strong, the IO could not find a preponderance of the evidence to show the applicant wrongfully had sexual intercourse on the evening of 4 May 17.  (UNSUBSTANTIATED).  

	Allegation 2.  The applicant knowingly had an extramarital affair or unprofessional relationship.  Based on the preponderance of the evidence and credible testimony regarding the TDY and circumstantial evidence, the IO concluded the applicant knowingly had an extramarital affair or unprofessional relationship.  (SUBSTANTIATED).  

On 13 Jun 17, the applicant received an LOR for displaying poor judgment and failure to fulfill his responsibilities as a field grade officer from Dec 16 to May 17.  His actions created a perception of an inappropriate relationship with another officer, which was prejudicial to good order and discipline.  In a rebuttal response dated 13 Dec 17, the applicant stated much of the testimony was false, inaccurate or misrepresented by the IO and/or influenced by discredited witnesses.   He also requested consideration as this was the first administrative action ever taken against him in over 17 years of service.

SAF/IG provided ROI of CDI concerning abuse of authority and other misconduct dated Jan 18, which shows a CDI was initiated on 17 Nov 17 pertaining to events occurring on 16 Oct 17 during a TDY.  The factual background for the CDI was an alleged altercation between the applicant and [Redacted-major] while TDY when both went to a hotel bar following the events of an industry day.  The ROI addresses the following allegations pertaining to the applicant: 

	Allegation 2:  On or about 16 Oct 17, the applicant caused an altercation to occur that would be considered a violation of Air Force standards (UNSUBSTANTIATED).  

	Allegation 3:  On 16 Oct 17, the applicant engaged in an unprofessional relationship (fraternization) as the term is defined in AFI 36-2909, Air Force Professional Relationships and Conduct.  A video showed the applicant with a female in civilian clothes who was an enlisted services team member from another State Air National Guard (ANG).  The IO noted the applicant was married to someone else.  (SUBSTANTIATED).  

	Allegation 5:  On or about 16 Oct 17, the applicant made false statements concerning the 16 Oct 17 allegations.  After reviewing the various witness testimonies, to include the applicant’s interview with his attorney stating he could not remember the events, video and texts, the IO determined there was sufficient evidence to show the applicant made false statements.  (SUBSTANTIATED).  

	Allegation 7:  On or about 16 Oct 17, the applicant made threatening statements to [Redacted] concerning an ongoing Office of Special Investigations (OSI) investigation.  While the applicant stated [Redacted] should apologize or that it could go to court martial and that he was going to be done could have been perceived threatening, there were no witness statements to support the allegation. (UNSUBSTANTIATED).   

On 26 Jan 18, the applicant received an LOR for compromising his standing as a field grade officer while on TDY.  On 16 Oct 17, while in uniform, he fraternized with an enlisted member and engaged in unprofessional behavior.  He was also untruthful to his chain of command concerning the 16 Oct 17 encounter, choosing to make false verbal and written statements about the allegations on a number of occasions.  On 5 Feb 18, counsel and applicant submitted a rebuttal to the LOR disagreeing with how the LOR characterizes the events on 16 Oct 17.  The video evidence in the CDI was gathered in an attempt to slander the applicant.  There was also no evidence in the CDI that supported the claim he knew the subject was an enlisted member or that he was untruthful to his chain of command.  It was obvious his command was purposely orchestrating actions to slander him. His counsel requested the applicant’s positive service record be considered and the LOR be rescinded.  

The applicant received a referral OPR for the reporting period ending 1 Nov 18 for appearance of an unprofessional relationship at home and deployed with a major and fraternization in uniform at a bar and lying when asked. It also stated two LORs were issued.  

The Wing Equal Opportunity (EO) memorandum for record (MFR) dated 9 Jul 20, stated an IO was appointed for investigation into allegations of alleged discrimination against the applicant by the operations group commander (OG/CC).  It stated the matter had already been through the IRR and the complainant appealed to the FRR and that the National Guard Bureau Equity and Inclusion Complaints Management and Adjudication Office would make the final determination on the FRR.  

On 30 Oct 20, the appointed IO into the applicant’s discrimination complaint requested he be relieved as the IO.  His review of the documents prejudiced him in that he did not agree with the series of findings leading to the investigation.  He also stated the IRR and FRR insufficiently addressed the circumstances leading to the LOR for the complainant.  The subsequent leadership inquiry report (LIR) relied on circumstantial evidence or assumptions of fact and not concrete evidence.  There was considerable doubt about the veracity of the statements leading to a substantiated claim of an improper relationship of an extramarital affair or unprofessional relationship.  The applicant also highlighted issues with the command climate that were not sufficiently considered in the inquiries and CDI.  

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

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

XXNG/JA recommends denial.  The applicant has not met the burden to demonstrate that the CDIs or resulting LORs and OPR were based on material errors or injustices or that they were not legitimate agency actions.  The command should not be expected to ignore information, even if it came from a motivated or biased source, and evidence of officer misconduct, even when provided by a source that might be demonstrated to have animus can lead to CDIs and consequences if the commander determines adverse administration action is appropriate.  More importantly, the original CDI was not in retaliation or reprisal but was more likely an indication of a pattern of CDIs into a unit that was experiencing an overall breakdown of good order and discipline.

In accordance with AFI 36-2907, commanders and other members of the chain of command can issue administrative actions in an effort to improve, correct and instruct subordinates who depart from standards of performance or whose actions degrade the individual and unit mission.  The actions taken by the applicant’s chain of command were within their authority and insufficient evidence was provided to justify overturning the decisions to issue the LORs and referral OPR.  Further, the applicant was afforded due process during the CDIs and when he received the LORs and the referral OPR.  The conclusions of the CDIs are legally sufficient and the LORs and referral OPR were within the commander’s discretion and authority.  

The allegations of reprisal are also without merit.  The applicant was investigated for misconduct unrelated to the alleged reprisal and for matters that are sufficient for a CDI and when substantiated.  Counsel contends the applicant was the subject of a baseless investigation conducted after fraudulent accusations were made in reprisal for engaging in protected communications concerning another investigation.  What the protected communication was seems intentionally vague but it appears to be related to the applicant’s previous cooperation in an investigation concerning coercion to prevent further cooperation.  The alleged reprisal appears to be the CDI into the applicant after the applicant was a witness in an investigation against [Redacted].    

Per 10 U.S.C. § 1034 and AFI 90-301, members of the armed forces shall be free from reprisal for making protected communication.  Reprisal means taking or threatening to take an unfavorable personnel action or withholding or threatening to withhold a favorable personnel action for making protected communication.  However, AFI 90-301 is clear that nothing in the instruction would dissuade commanders from taking timely and appropriate corrective actions for legitimate reasons, whether the information regarding the misconduct came through a protected communication.  Further, the record does not show the applicant filed any IG within the required time period, although he indicated in the rebuttal to the LOR dated 26 Jan 18 that there would be calls from his Congressional office and IG.  

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 23 Feb 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 XXNG/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Counsel contends the applicant’s LORs and referral OPR should be removed from his record due to the baseless investigations conducted after false accusations and the bias of the IO who had close personal ties with the complainant.  However, the Board finds counsel has not sustained his burden of proof to overturn the presumption of regularity.  Absent evidence to the to the contrary, there is a presumption of regularity in the conduct of governmental affairs in that officers of the government discharge their duties in accordance with law and policy.  In this respect, the Board concludes while counsel contends the applicant did not commit adultery or engage in fraternization, the evidence is sufficient to conclude the applicant violated AFI 36-2909 by failing to maintain professional relationships and displaying poor judgment, which were prejudicial to good order and discipline. Counsel also contends the applicant was reprised against for making protected communication.  However, based on the evidence, it appears the applicant’s EEO complaint of discrimination and reprisal was reviewed by the IRR and FRR in accordance with established regulations.  Moreover, the Board finds no evidence the applicant was reprised against for making protected communication, in violation of AFI 90-301.  Therefore, the Board recommends against correcting the applicant’s records.

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-2021-02580 in Executive Session on 21 Apr 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 22 Jun 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  ROI, SAF/IG, dated Jan 18 (WITHDRAWN)
Exhibit D:	Advisory Opinion, DCNG/JA, w/atchs, dated 11 Feb 21.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 23 Feb 22.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph