RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02910

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXXX

  	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

He requests the following based on allegations of discrimination and reprisal pursuant to DoDD 7050.06, Military Whistleblower Protection, and 10 U.S.C. § 1034 for submission of an Equal Employment Opportunity (EEO) complaint:

1.  His nonselection for retention and involuntary curtailment of his active duty tour be void.

2.  His letter of reprimand (LOR) dated 17 Jan 18 and letter of counseling (LOC) dated 20 Jun 19 be removed from his record.

3.  He be reinstated onto active duty and his records reflect no break in service effective 30 Nov 18 to present.

4.  He accrued 65 days of leave from 30 Nov 18 to present.   

5.  He receive reimbursement for relocation expenses incurred in Nov 18.  

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, states he was an Active Guard Reserve (AGR) in the medical group (MDG) as the superintendent and supervisory health systems specialist when he received an LOR on 17 Jan 18 for failure to prepare for a SAV conducted on 3-7 Jan 18.  Significant deficiencies were noted within the MDG, to include some in his area of responsibility. He performed well and received only positive comments and ratings on his evaluations.    It is clear the LOR was to hold him solely responsible.

On 18 Jun 18, a no-notice wing inspection was conducted by the inspector general (IG) office.  The inspection found the MDG’s case management processes were ineffective.  As a result of the inspection, the applicant received a letter of admonishment (LOA) on 20 Jun 18 for failing to follow orders regarding case management.  

On 25 Jul 18, the applicant received notice of his wing commander’s (WG/CC) recommendation for an involuntary tour curtailment.  It was recommended he be separated immediately for cause from the AGR program due to recurring substandard performance.  

On 11 Oct 18, the applicant’s vice wing commander (WG/CV) informed him the Adjutant General (TAG) and the Director of the Joint Staff nonconcurred  with the recommendation for involuntary tour curtailment, finding it was not supported by requirements.  However, the WG/CC intended to resubmit a reconsideration request following the imposition of a referral enlisted performance report (EPR).  Despite the disapproval of the tour curtailment, his leadership continued to take adverse actions against him.  On 18 Oct 18, he received notice of a referral EPR.  

On 29 Oct 18, he submitted a military equal opportunity (MEO) complaint for discrimination based on his race.  Fearing retaliation and/or reprisal and further adverse actions, he felt he had no option but to resign his position.  On 29 Oct 18, he submitted a request for early release from his AGR tour, with terminal leave beginning 3 Nov 18.  His resignation was accepted.  He relocated and accepted a position with the Defense Health Agency.  

At the time of his resignation, his expiration term of service (ETS) was approaching and he was scheduled to reenlist on 2 Dec 18.  However, without notice, his reenlistment was canceled.  He was informed his WG/CC would not allow him to reenlist.  After filing an IG complaint, in addition to his MEO complaint, he was permitted to reenlist on 14 Feb 19.  Although he was permitted to reenlist, he received notice that on 1 Feb 19, he would undergo an ANG Selective Retention Review Board (SRRB) scheduled to convene on 7 May 19.  On 8 May 19, he was nonselected for retention with a separation date of 1 Oct 19. He was then transferred to the Air Force Reserve.

As a result of the MEO complaint and findings of disparate treatment and a possible abuse of authority, both parties settled the MEO complaint that the applicant’s 2018 referral EPR would be corrected to remove all disparaging remarks.

He would not have resigned from his position if not for the repeated threats for curtailment and non-retention.  His leadership continued to take adverse actions against him after his constructive resignation.  He was the victim of unlawful discrimination, reprisal and adverse actions without legal justification.  Upon investigation into his complaints, it was determined “there was prima facie evidence he received disparate treatment from a similarly situated member.”  He was unjustly punished for the shortcomings of the wing while his direct supervisor received no adverse action but was rewarded for his performance and promoted to a new position.  

He was selected for retention by the CY2015 AGR Continuation Board and retention for 20 years and 6 months and entered into the AGR career status program.  This would have guaranteed his eligibility for retirement.  Instead, he was required to sign a waiver of his active duty sanctuary, which denied his eligibility for retirement benefits he rightfully earned.  
 
The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a chief master sergeant (E-9) in the Air Force Reserve.  

Counsel provides an LOR dated 17 Jan 18.  The LOR states an investigation disclosed on 2 Dec 18 he was notified to provide documents requested by the SAV team.  However, on 4 Jan 18, the required documents were not ready for review as requested.  

Counsel provides an LOC dated 20 Jun 18.  The LOC states that on 18 Jan 18 and 3 Jun 18, the applicant failed to follow his commander’s orders regarding the initiation of case management as directed.  

On 11 Jul 18, the applicant voluntarily waived his right to invoke sanctuary as provided under 10 U.S.C. § 12686(b).  The applicant acknowledged he understood his signature meant he would not receive sanctuary protection.   

On 24 Jul 18, the MDG/CC informed NGB/HR he acknowledged the applicant’s decision to apply for an active duty medical information technology specialist position at the ANG Readiness Center (ANGRC).  The MDG/CC agreed to release the applicant if selected for the position.  

On 25 Jul 18, the WG/CC informed the applicant of his intent to recommend his AGR tour be involuntarily curtailed for cause.  The reason for the recommendation for separation from the AGR was his substandard performance.  On 8 Aug 18, the applicant submitted his response to the involuntary tour curtailment.  He provided details of the events and noted his last five EPRs did not document any issues or problems related to the cause for curtailment.  

On 5 Sep 18, the TAG approved the recommendation for involuntary curtailment from the AGR program, finding sufficient cause for removal.  The applicant was informed his Title 32 AGR tour curtailment would be effective no later than 60 days from the signature on the memorandum.  

In a memorandum dated 22 Oct 18, the applicant tendered his resignation of his supervisory health systems specialist position, requesting his terminal leave begin on 3 Nov 18.  On 29 Oct 18, the applicant tendered his resignation and requested early release from his AGR tour (end date of 13 Feb 19).    

On 29 Oct 18, the applicant filed a State Informal Resolution Request (IRR), and NGB Form 333, Discrimination Complaint in the Army and Air National Guard, alleging he was discriminated against on the basis of race, color, ethnicity or national origin.  The applicant made six allegations pertaining to the curtailment of his AGR tour and his referral EPR.  It was concluded the applicant’s allegations of discrimination were unfounded and he was not the victim or reprisal or retaliation.  It was recommended the applicant’s EPR be reaccomplished with removal of the referred rating.  The applicant’s remaining requested actions for resolution and remedy were denied and dismissed. 

On 1 Feb 19, the applicant’s State ANG/CC recommended the applicant for non-retention for the CY2019 SRRB scheduled to convene on 7 May 19.  NGB Form 27, Federal Retention Evaluation/Recommendation, dated 28 Mar 19, stated the applicant would become excess due to resigning his AGR position and there were no other available chief master sergeant drill status positions within the MDG to reassign the applicant.  The applicant had over 22 years of satisfactory service and over 4 years’ time in grade.

On 8 May 19, the State ANG/CC informed the applicant of his non-retention in the State ANG.  It stated he could elect to transfer to the Air Force Reserve program, transfer to an ANG unit outside of the state or transfer to the Retired Reserve.  If he did not elect any of the options, he would be discharged from the ANG and the Reserve of the Air Force with no military affiliation or benefits.  On 29 May 19, the applicant acknowledged the non-retention in the State ANG.

On 20 Jul 19, the applicant was discharged from the ANG in the rank of chief master sergeant and transferred to the Air Force Reserve.  He was credited with 6 years, 5 months and 7 days of active duty service for the period.  

Counsel provides the NGB memorandum dated 7 Nov 19 to the State EEO Manager (EEM) and HRO office, titled NGB Notice of Proposed Resolution for the Applicant, NGB Case No I-2019-058-AR-F-CON.  On 29 Apr 19, an inquiry into the applicant’s IRR with the State EEM concluded that no discrimination occurred.  On 30 Apr 19, the applicant submitted a Formal Resolution Request (FRR).  The State submitted the matter to NGB on or about 8 May 19.  The memorandum addresses the following allegations:    

	Allegation 1.  He was discriminated against on 25 Jul 18 when his WG/CC served him with notice of intention to recommend his AGR tour be involuntarily curtailed.  Similarly situated leadership with direct authority did not receive equivalent administrative actions, scrutiny or were ostracized.  (UNSUBSTANTIATED).  

	Allegation 2.  He was discriminated against shortly after 8 Aug 18 when the WG/CC dismissed due process using the findings of a no-notice IG inspection to support an involuntary AGR tour curtailment. (UNSUBSTANTIATED)  

	Allegation 3.  He was discriminated against on 11 Oct 18 when the WG/CV relayed a status update of his pending AGR tour curtailment by notifying the applicant the TAG had nonconcurred; however, the WG/CC intended to resubmit the AGR tour curtailment request with a memorandum for record (MFR) and referral EPR.  Similar situated leadership with direct authority over specific programs had not received equivalent administrative actions.  (UNSUBSTANTIATED)

	Allegation 4.  He was discriminated against on 16 Oct 18 when his rater notified the applicant without prior mention of the projected referral EPR.  Similarly situated leadership with direct authority over specific programs did not equivalent administrative actions, scrutiny or were ostracized. (UNSUBSTANTIATED)

	Allegation 4.  On 4 Nov 18, secondary to filing EEO protected communication on 29 Oct 18, the WG/CC directed a referral EPR be processed.  The comments on the EPR were contradictory to the rater’s comments.  (UNSUBSTANTIATED)  

	Allegations 5.  He was subject to reprisal/retaliation on 4 Nov 18, secondary to filing protected communication 29 Oct 18, when the WG/CC directed a referral EPR, which included comment “Do Not Retain.” He was subsequently disadvantaged by the personnel action of the WG/CC signing a recommendation approving him for an active duty operational support announcement, which included a statement that he would remain assigned to the State ANG.  (UNSUBSTANTIATED).  

	Allegation 6:  He was subject to reprisal and discrimination on 4 Nov 18 after filing an EEO complaint on 29 Oct 18, which included comment. “Do Not Retain.”  (UNSUBSTANTIATED).

The NGB response stated that in any proceeding involving a charge of employment discrimination, the burden remains with the complainant to prove unlawful discriminatory animus motivated the agency’s actions.  It was clear the agency leaders had lost confidence in the applicant due to his failures related to the SAV and IG inspections and related complaints.  The agency’s reasons for its personnel actions were in line with its decision to remove the applicant from the MDG.  While it does appear the two MDG leaders were treated differently, the agency clearly articulated why the approaches were different in the investigation.  The evidence in the ROI is overwhelming.  The applicant has failed to prove by a preponderance of the evidence he was the victim of discrimination, reprisal or retaliation.  The agency should have processed the applicant’s evaluation properly.  The agency mishandled the EPR as several key leaders believed a reprimand required a referred evaluation.  The agency also failed to allow the applicant to rebut the evaluation.  The failures appear to be because the agency was fixated on trying to remove the applicant as they had lost faith in his abilities to lead the MDG.  Senior leaders felt a referred evaluation would help convince the TAG to curtail the applicant’s tour.  There is no evidence the agency discriminated against the applicant based on race, color or national origin and disparate treatment therefore is unsubstantiated.  The agency should review the EPR and reconsider its comments in light of the evidence in the ROI and the questionable legal guidance provided by the agency’s legal advisor regarding the referral EPR process.

The applicant requested a hearing for his complaint against his State ANG pursuant to the National Guard Discrimination Complaint Program.  Per the hearing officer decision dated 16 Dec 19, the request for resolution was dismissed as settled.   The revised EPR was acceptable and signed by the applicant. The applicant’s automated records management system (ARMS) does not include a referral EPR.  

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.

Title 32 U.S.C. activation means the State authorized or directed by the President to mobilize or activate performance on active duty under State control, but with pay and benefits provided by the federal government.  

ANGI 36-101, Air National Guard Active Guard Reserve Program, paragraph 8.4.1. AGRs may request early release from their AGR tour based on personal hardship or other valid reason.  They must submit a fully justified curtailment request through their chain of command (including the HRO) to the TAG, who is the final approval/disapproval authority.  This authority may be delegated to the HRO.

AIR FORCE EVALUATION

NGB/A1PP recommends denial.  The applicant had the opportunity to withdraw his approved curtailment action and chose to keep his AGR curtailment.  Therefore, reinstatement back to AGR, reimbursement of relocation costs and leave accrual are not authorized.  

The authority for accessing a member into the AGR program lies within the state HRO.  The ANG SRRB program is a force management tool used by commanders to review retirement eligible personnel.  The SRRB program serves as a mechanism to ensure career development opportunities are afforded to airmen while securing mission viability and career expectation of assigned personnel.  The TAG has the authority to separate a member as long as a member meets eligibility based on the calendar year SRRB.  The applicant also decided to transfer versus retire as described in ANGI 36-2651, Air National Guard Selective Retention Review Boards.    

The applicant states he wants his LOR to be removed from his record; however, in accordance with AFI 36-2907, Adverse Administrative Actions, paragraph 2.4.3, he had the opportunity to submit comments for consideration but chose not to do so.  With respect to the LOA, he appealed and as a result, the LOA was downgraded to an LOC.

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 20 Oct 21 for comment (Exhibit D), and the counsel replied on 17 Nov 21.  Counsel states the investigation into the applicant’s MEO complaint found the agency “mishandled” his evaluation and was fixated on trying to remove the applicant.  The investigation clearly noted they wanted him out; thereby, corroborating his assertions about the motives of his leadership in taking adverse actions against him.

The advisory fails to address that the actions against him were unlawful discrimination.  Because the underlying basis for the LOR, LOC and involuntary tour curtailment was improper and discriminatory, it is erroneous and unjust.  

The advisory also states he had the opportunity to withdraw the curtailment action.  However, it does not address the discrimination, which resulted in his constructive resignation.  As addressed, he only submitted his resignation in order to prevent further unlawful discrimination against him.  He had no realistic alternative.  The resignation was the result of improper acts by the agency and was not a voluntary resignation.  But for the unlawful discrimination, he would not have received the LOR or LOC and would not have been forced to resign and transfer to the Air Force Reserve.

Because the actions were the result of unlawful discrimination, the appropriate remedy is to remove all adverse actions, to include the LOR, LOC and the resignation and reinstate the applicant to the position he was in prior to the discrimination.  

The applicant’s complete response, with attachment, 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 NGB/A1PP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Counsel contends the applicant was reprised against for making protected communication in accordance with 10 U.S.C. § 1034 and AFI 90-301 and the applicant’s LOR, LOC and the involuntary curtailment of his AGR tour were the result of race discrimination, reprisal and retaliation.  However, counsel has provided no evidence to substantiate the contentions.  Moreover, the State Informal and Formal IRR failed to substantiate the applicant’s six allegations he was the victim of reprisal, discrimination, retaliation, unjust actions or abuse of authority.  Counsel also contends the applicant was treated differently than a similarly situated member on the basis of race; specifically, his supervisor was not held responsible for the shortcomings of the work center.  However, counsel has provided insufficient evidence to show the applicant and his supervisor, with different ranks and responsibilities, were similarly situated or that they were treated differently on the basis of race.  Moreover, the Board does not find the mishandling of the applicant’s EPR as evidence he was unjustly curtailed from his AGR tour.  In this respect the Board notes the curtailment of his AGR tour as documented in the WG/CC’s memorandum dated 25 Jul 18, was the result of the applicant’s failure to perform his duties and the deficiencies as noted by the SAV and the Wing Inspections.  The applicant also does not have a referral EPR.  Further, this Board, which serves on behalf of the Secretary of the Air Force, in the correction of military records, is without authority to reinstate the applicant on Title 32 AGR orders as this authority remains with the State ANG. 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-2021-02910 in Executive Session on 20 Jan 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 27 Aug 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, NGB/A1PP, w/atchs, dated 12 Oct 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 20 Oct 21.
Exhibit E:	Applicant’s Response, w/atchs, dated 17 Nov 21.