RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00010

XXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: YES  

APPLICANT’S REQUEST

The letter of counseling (LOC) and substantiated inspector general (IG) complaints against him be removed from the Inspector General (IG) Automated Case Tracking System (ACTS).  

APPLICANT’S CONTENTIONS

The LOC was never completed and he was not informed it would be placed in a records system.  He was recently selected by the command chief master sergeant screening board; however, after a review of the ACTS database and discovery of the LOC, his name was removed from the list.  He was never made aware that the LOC could go into the IG ACTS database.  

A month prior to the Apr 17 unit effectiveness inspection (UEI), the squadron commander (SQ/CC) received two anonymous statements in the SQ/CC comment box.  The SQ/CC maintained the sole key to the box.  The two comments alleged the director of business operations and the flight chief were making undermining comments with racial undertones about him and the commander, who are both African American.  Although race is not normally highlighted, it was a major point of contention by a small group in the unit.  The flight chief who stated she had issues with the SQ/CC’s race quit.  The SQ/CC received a hiring list and hired an employee from the major command (MAJCOM) staff.  The newly hired employee was friends of the UEI team and held a dinner for them at her home.  During the UEI, a member of the IG walked into his office stating he was there to talk about morale with some people.  After completion of the UEI, he and the SQ/CC were notified of a meeting with the wing commander (WG/CC), mission support group commander (MSG/CC), command chief and group superintendent regarding AF Forms 102, Inspector General Complaint Form, alleging complaints about him and the SQ/CC.  The MSG/CC then advised the SQ/CC that there was a complaint he was walking around work centers to check hand writing samples in an attempt to find out who wrote the complaints.  He had only seen typed forms with redacted information.  

On or about 9 May 17, he was called into the MSG/CC’s office and the LOC was read to him.  He was completely caught off guard.  The allegations were untrue and proven to be unsubstantiated.  The acting first sergeant told him the LOC would be given back to him, not used against him, nor would it be forwarded anywhere.  He never provided a response to the LOC and the original signed copy was returned to him.  He was never informed it would be placed in any system of record but recently learned it had been forwarded to the IG.  If given the opportunity to address the allegations, he would have done so.  He did not bully, demean or threaten anyone.  The allegations could have easily been disproven and nothing was substantiated.   

He provides a letter of support dated 3 Jan 22 from a judge advocate (JA) officer, which provides the timeline of the complaints and the LOC.  On 22 Oct 18, he was provided the final notice of the substantiated finding.  He was verbally counseled and advised it would not impact his opportunity to become a command chief.  Three years later, in Oct 21, he was made aware his name was removed from the command chiefs’ list due to the cases in the ACTS.  The Chief Master Sergeant of the Air Force (CMSAF) advised his name would be put back on the list if the items were removed from the record.  AFI 90-301, Inspector General Complaints Resolution, changed in Dec 18 to allow findings to be used for boards but it also afforded members an opportunity to provide a response and submit rebuttal documents.  He was not afforded due process.  The basis for the LOC, substantiated finding and related verbal counseling should be removed.  The IG investigation was plagued by issues and the not substantiated finding was overturned by the MAJCOM IG, who was friends with the probable complainant.  The LOC should also not have been considered by the command chief screening board because his case closed out months before the changes were made to AFI 90-301.  Past IG cases pertaining to the legal review of the allegation of restriction are cited in support of his request the investigation was not conducted in accordance with AFI 90-301.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force chief master sergeant (E-9).  

On 1 Oct 18, the MAJCOM/IG informed SAF/LL the allegation the applicant on or about Oct 15 to May 17, restricted squadron members from making statements to the IG by creating an atmosphere of fear and causing a chilling effect in violation of 10 U.S.C. § 1034 was substantiated.  It stated the report of investigation (ROI) was reviewed by the MAJCOM/IG, Secretary of the Air Force IG (SAF/IG) and the DOD IG.  The DOD IG agreed with the MAJCOM addendum to the ROI.  The matter was considered closed.  The memorandum states IG records were not to be used as attachments or exhibits to other official records without the written approval of the authority responsible for making determinations upon completion of stated need.  

The applicant is projected for retirement on 1 Oct 22.  

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, No person may restrict a member of the armed forces in communicating with a member of Congress or an IG.  

AFI 90-301, paragraph 7.8, 28 Dec 18, Centralized screening for purpose outside of the promotion process can also be accomplished by SAF/IGQ at the discretion of the SAF or Chief of Staff of the Air Force (CSAF) but the processes are not statutory in nature but rather are by Air Force policy.  They include but are not limited command screening boards, to include command chief master sergeant screening boards.  

AIR FORCE EVALUATION

DAF/IGQ recommends denial for the removal of the substantiated IG findings from ACTS.  The IG investigation was processed in accordance with AFI 90-301, received appropriate oversight review and approved by DOD IG on the restriction case where they alone are the authority to approve the final resolution.  

The applicant was named as the subject in five IG complaints.  The complaints involved reprisal, restriction and hostile work environment.  The restriction complaint was fully processed in accordance with AFI 90-301 and DODD 7050.06, Military Whistleblower Protection, culminating with a final DOD IG review and approval of the finding.   The five IG cases each include one allegation as follows:  

	Allegation:  The applicant on or about Oct 15 to May 17, restricted squadron members from making statements to the IG, creating an atmosphere of fear and causing a chilling effect in violation of 10 U.S.C. § 1034.  (SUBSTANTIATED).  The MAJCOM/IG completed a second addendum to the report concurring with the WG/IG addendum finding that the restriction allegation was substantiated.

	Allegation: There were several complaints made to the MAJCOM/IG team that the applicant and the SQ/CC created an unfavorable work environment.  The allegations included micro-management, bullying, demeaning and demoralizing behavior which created a toxic environment, a fear of reprisal for expressing concerns outside of the squadron and that faking bullets on awards packages would be formally documented.  (SUBSTANTIATED).  Command action included verbal counseling.  

	Allegation: There were multiple complaints to include restriction about the leadership within the squadron dating back to the Apr and May 17 UEI and following sessions.  (SUBSTANTIATED).  Command action included verbal counseling.

	Allegation:  The applicant changed the duty title of the named technical sergeant (E-6) in reprisal for communication with the WG/IG on 6 Oct 17.  (NOT SUBSTANTIATED).

	Allegation:  There were multiple complaints about the leadership within the squadron that were open and addressed.  In this complaint, no complainant came forward.  The IG’s analysis concluded there was no credible evidence of a violation of law, instruction, regulation or policy.  Two individuals responded to the IG for more information but both declined to file a complaint.  This case was dismissed/closed.

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 18 Mar 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 DAF/IGQ and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant contends the IG investigation was plagued by issues, he was not afforded due process and the MAJCOM IG substantiated the findings in favor of the probable complainant who was a former co-worker and friend.  However, other than uncorroborated assertions, he has provided no evidence the substantiated allegations of restrictions are untrue as written.  Moreover, the evidence shows the investigation was processed in accordance with AFI 90-301 and the DAF/IG and DOD IG reviewed and approved the findings.  The applicant also contends he did not receive due process nor was he informed the LOC would be placed in the ACTS and reviewed by the command chief screening board; however, the Board finds per AFI 90-301, centralized screening boards, to include the command chief screening board, by policy and at the discretion of the SAF or CSAF may consider information in the IG ACTS.  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-2022-00010 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 6 Jan 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/IGQ, dated 15 Mar 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 18 Mar 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.