RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00052

XXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: YES  

APPLICANT’S REQUEST

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

1.   Her letter of reprimand (LOR) dated 26 Aug 21 be void and removed from her record.  

2.   The unfavorable information file (UIF) and control roster (CR) action be rescinded.

3.   Her referral enlisted performance report (EPR) for the reporting period ending 30 Sep 21 be void and removed from her record.  

APPLICANT’S CONTENTIONS

The requested corrections should be made as the evidence shows she did not engage in an unprofessional relationship and she was sexually harassed.  She provides voicemails, text messages and witness statements that debunk the charges against her in the LOR.  The text messages prove the technical sergeant harassed, assaulted and stalked her after she rebuffed his advances and she did not engage in a romantic relationship with him.  She received the negative personnel actions three weeks after her inspector general (IG) complaint of reprisal against her previous leadership was closed.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a master sergeant (E-7) in the Air Force.  

The report of investigation (ROI) for the commander directed investigation (CDI) concerning sexual harassment allegations dated 11 May 21, shows the applicant alleged [redacted] sexually harassed her, in violation of DODI 1020.03, Harassment Prevention and Response in the Armed Forces.   (NOT SUBSTANTIATED).

On 27 May 21, the applicant filed an IG complaint alleging her commander, senior enlisted leader (SEL), and the chief of personnel operations withheld her promotion to master sergeant for eight months in reprisal and abused their authority because she was under investigation for allegedly sexually harassing [redacted] in violation of 10 U.S.C. § 1034.   

The ROI for CDI concerning sexual harassment dated 3 Jun 21, shows the applicant was investigated for engaging in unlawful sexual harassment of [redacted], in violation of DODI 1020.03.  (NOT SUBSTANTIATED).  

On 28 Jul 21, the major command IG informed the applicant they conducted an analysis of the review of her IG complaint and the allegations of reprisal.  The applicant was informed they considered the matter closed.  The applicant was advised she could file a petition to the AFBCMR for correction of the adverse personnel actions, regardless of the findings of the case.  

The military personnel data system (MilPDS) shows the applicant’s date of rank and effective date for promotion to master sergeant are 1 Aug 21.  

On 26 Aug 21, the applicant received an LOR.  An investigation disclosed she engaged in an unprofessional relationship with [redacted], whom she knew to be married.  The applicant also referred to [redacted] about an inbound airman as “trash panda.”  The disparaging comment was unacceptable, fostered a hostile work environment and was antithetical to good order and discipline.  

AF Force Form 1058, Unfavorable Information File Actions, dated 1 Sep 21 shows the applicant was placed on the control roster and a UIF established for the unprofessional relationship.  

The applicant received a referral EPR for the reporting period ending 30 Sep 21.  The EPR shows the applicant was rated as “Met some but not all expectations” and included comments she failed to adhere to standards by engaging in an unprofessional relationship with a married member.  She received an LOR and control roster action.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory opinions at Exhibits D and F.

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 36-2907, Adverse Administrative Actions, Table 3.2, Control Roster, interim disposition is six months from the date the commander signs the AF Form 1058.   The military personnel data system does not show any control roster/UIF.  

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denial for removal of the LOR as there is no LOR to remove.  While the applicant provides documentation suggesting her LOR dated 26 Aug 21 would be filed in her automated records management system (ARMS) record, the documentation was not filed in her official records.  

The complete advisory opinion is at Exhibit D.

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 E), but has received no response.

ADDITIONAL AIR FORCE EVALUATION

AFPC/JA recommends denial for the requests.  A review of the record suggests that the applicant and the technical sergeant communicated in a non-platonic manner on several occasions.  The parties texted each other approximately 85 times between 26 Jan 21 and 25 Feb 21.  While it is unclear from the text messages what the parties may have been doing together, the tone suggests a non-platonic and non-work related occurrence.  The record also reflects at least two one on one lunches and the applicant admitted to paying for a massage received by the technical sergeant.  

It is also unclear what caused the relationship to change around the end of March, with each party claiming they wanted a platonic relationship but the other wanted more.  However, it seems clear from the many text exchanges, Facebook messages and lunches that each was engaged in and encouraged non-platonic communications during their friendship.  As such, the evidence supports the conclusion the applicant engaged in an unprofessional relationship.  Lastly, the evidence does not prove or disprove she made a derogatory reference about an inbound airman; however, the LOR is still valid based solely on the unprofessional relationship offense.  

The complete advisory is at Exhibit F.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 24 Mar 22 for comment (Exhibit G).  In a response dated 14 Apr 22, the applicant provides a chronology of events indicating dates of sexual harassment, assault, abuse of authority and reprisal.  

On 2 Jun 21, her commander informed her he was directing a mental health evaluation to ensure she was doing okay.  She was apprehensive to do the evaluation because she felt it was an attempt to make it appear she was crazy.  She was asked to take a personality test.  The evaluator then accused her of portraying herself differently to different clinicians and trying to hide information about herself because of the commander directed evaluation.  

The AFPC/JA advisory stating there were 85 text messages between her and the accused is relevant as the average consumer sends 72 text messages per day.  The implication she reported him because he told his wife is speculation, defamation and incongruent with the timeline.  In Apr 21, she reported to her leadership he was stalking her and that she was uncomfortable working with him.  According to state law, any person who continues to try to make unwilling contact physically or verbally is stalking.  Further, all conversations were platonic.  He had confided to her he was being physically abused by the SEL, sexually harassed by the clinician and had his career unjustly threatened by the commander.  She stated in the CDI against her that she offered to pay for his massage as a birthday gift and as repayment for gifts she received.  On 17 Mar 21, he acknowledged via a text message they were only friends and that it was him who started to develop a romantic interest.  The accusation she called one of her airmen “trash panda” is unsubstantiated.  It was he who made this reference.  She corrected him as the term refers to a raccoon and is a racial slur.  The LOR attempts to support she mutually engaged in an unprofessional relationship, which is discredited by the evidence.  

In May 21, she contacted the Chief Master Sergeant of the Air Force (CMSAF) about the interpersonal violence she and other airmen endured.  The CMSAF’s office initiated an IG investigation.  She received a LOR after the IG investigation was closed and came back unsubstantiated.  Her family has elevated this to the Secretary of the Air Force (SecAF) and the Armed Services Committee.  She was given the LOR in reprisal. 

The applicant’s complete submission is at Exhibit H.  

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 recommendations of AFPC/DP2SSM and AFPC/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.   The applicant contends the unfavorable personnel actions were the result of reprisal and abuse of authority by her commander, SEL and the chief of personnel operations; however, she has provided insufficient evidence to substantiate she was the victim of reprisal in accordance with 10 U.S.C. § 1034.  In this respect, the ROI CDI, dated 11 May 21 shows the allegations of reprisal and abuse of authority were not substantiated.  Further, the applicant contends she was the victim of sexual harassment and assault by [redacted]; however, there is no evidence she was sexually harassed or assaulted.  In the contrary, the evidence shows the applicant and [redacted] engaged in an unprofessional relationship.  While the applicant contends the relationship was platonic and not romantic; nonetheless, the Board finds it was unprofessional and violated Air Force standards and professionalism expected of Air Force noncommissioned officers. 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-2022-00052 in Executive Session on 17 May 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 Nov 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	CDI ROIs, w/atch, dated 11 May 21 (WITHDRAWN).
Exhibit D: Advisory Opinion, AFPC/DP2SSM, dated 23 Feb 22.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 23 Feb 22.
Exhibit F:	Advisory Opinion, AFPC/JA, dated 23 Mar 22. 
Exhibit G:	Notification of Advisory, SAF/MRBC, dated 24 Mar 22.  
Exhibit H: Applicant’s Response, w/atchs, dated 14 Apr 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.