RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00542

XXXXXXXXXXXXXX	COUNSEL: NONE
	 
  	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

He be awarded a Meritorious Service Medal (MSM) for the inclusive period 1 Aug 17 to 1 Oct 19 based on allegations of reprisal and a substantiated allegation for abuse of authority pursuant to 10 U.S.C. § 1034, DODD 7050.06, Military Whistleblower Protection and AFI 90-301, Inspector General (IG) Complaints Resolution.

APPLICANT’S CONTENTIONS

He was removed from his position leading 47 personnel. The wife of the squadron chief enlisted manager (CEM) was assigned as his supervisor and unofficial documents were filed in his personnel information file (PIF).  The information was then used against him in the downgrade of his enlisted performance report (EPR) and non-recommendation for a permanent change of station (PCS) medal.  These actions were taken after he and his family spoke out about the high level of toxic mold in his base housing.  He and his wife spoke to the media and the Secretary of the Air Force (SecAF) and filed a Congressional complaint.  Before speaking about the mold in base housing, he was one of the top senior noncommissioned officers (SNCO) on base and he received the #3 stratification on his 2018 EPR.  

He filed an inspector general (IG) complaint for whistleblower retaliation.  The IG substantiated abuse of power against the CEM for the non-recommendation of the MSM.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force senior master sergeant (E-8).

The applicant’s EPR for the reporting period ending 30 Sep 18 shows he was rated “Exceed most, if not all expectations.”  His rank reflects as “MSgt.”

The applicant’s EPR for the reporting period ending 31 Jul 19 shows he was rated “Exceed some, but not all expectations.”    His rank on the EPR reflects as “SMSgt Select.”  

On 10 Sep 19, the applicant filed an IG complaint alleging his performance was put under a microscope and scrutinized after his wife’s protected communication with her congressman regarding mold in base housing.  This led to a non-recommendation for a special duty opportunity, reassignment to a position with less responsibility and his reputation was tarnished.  He was excluded from the squadron mentorship program, received an “Exceeds most, but not all” rating on his 2019 EPR and was not recommended for a PCS decoration.  His supervisor submitted a memorandum for record (MFR) to the CEM for incidents that occurred up to six months in the past.  He did not receive feedback or a copy of the MFR, which was then filed in his PIF.  His supervisor then sent an email to his new supervisor (the CEM’s wife) for the EPR rating.  The documents were full of inaccuracies and false accusations. The CEM then conducted a month long investigation and contacted the career field manager (CFM) regarding his multiple infractions and his child’s medical needs.  

On 1 Jun 20, the major command IG (MAJCOM/IGQ) informed the applicant they chartered an investigation into the following allegations of reprisal for his protected communication in violation of 10 U.S.C. § 1034:

	Allegation 1:  On 15 Aug 19, the quality assurance manager rated an EPR on the applicant which was not indicative of his performance.

	Allegation 2:  On 23 Apr 19, the section chief issued an MFR and placed it in his PIF.   

	Allegation 3:  On 15 Aug 19, the section chief influenced the rating of his EPR which was not indicative of his performance.

	Allegation 4:  On 15 Aug 19, the CEM influenced the rating of his EPR which was not indicative of his performance.  

	Allegation 5: On 4 Sep 19, the CEM withheld a favorable military decoration for PCS.  

	Allegation 6: On 15 Aug 19, his commander withheld a favorable endorsement for a special duty assignment.  

All reprisal allegations were NOT SUBSTANTIATED.  However, Allegation 5, the CEM withheld a favorable military decoration for PCS was SUBSTANTIATED for Abuse of Authority.  

On 14 Sep 20, the applicant filed an IG complaint with SAF/IG requesting a higher level review of his IG complaint.  The applicant indicated the investigation did not adequately represent his case.  He was only interviewed once and was not provided an opportunity to refute contradictory statements. The applicant’s contentions were documented on an AF Form 102, Inspector General Complaint Form, dated 14 Sep 20.   On 30 Sep 20, SAF/IGQ informed the applicant they conducted an analysis of the issues he presented for further reconsideration in accordance with AFI 90-301 and found no procedural issues with the handling of his case by the MAJCOM IG.  The request for reconsideration did not provide any new or compelling information to warrant further investigation.  A review however identified an additional allegation.  The allegation the mission support group (MSG) commander denied the applicant a PCS award after re-submission in reprisal for making protected communication about base housing was not previously evaluated.  The applicant was advised he should contact the MAJCOM/IG to file a separate complaint to resolve the matter.  The applicant was also advised he could request his case be reviewed by the higher level IG (DOD IG) and petition the AFBCMR for redress.    

The applicant provides a draft MSM for inclusive dates 1 Aug 17 to 1 Oct 19.  

The applicant was awarded an MSM w/2 OLC for inclusive period 2 Oct 19 to 31 May 22, in conjunction with his 1 Jun 22 retirement.

On 1 Jun 22, the applicant retired in the rank of senior master sergeant.  He was credited with 20 years, 1 month and 22 days of active duty service.  	

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

APPLICABLE AUTHORITY/GUIDANCE

Per 10 U.S.C. § 1034 and AFI 90-301, Inspector General Complaints Resolution, reprisal and abuse of authority against military members for making protected disclosures is prohibited. 

DAFMAN 36-2806, Military Awards: Criteria and Procedures, paragraph A2.11, the MSM is awarded to any Service member, or to any member of the armed forces of a friendly foreign nation, who has distinguished himself or herself by outstanding meritorious achievement or service.  Normally the acts or services rendered are comparable to that required for the Legion of Merit, but in a duty of lesser though considerable responsibility.

Paragraph A3.3. Reconsideration and Upgrade Requests.  Initiate a reconsideration (or upgrade) request within one-year of the date the recommendation was disapproved. A one-time reconsideration of a disapproved or downgraded decoration or a request for upgrade of an approved decoration, may be submitted through the same official channels as the original recommendation to the current approval authority (in that chain of command) for decision. Requests must include new, substantive, and relevant material evidence that was not available or known at the time the original recommendation was considered or evidence of material error or impropriety in the processing or adjudication of the original recommendation. Information that merely adds details to what was previously provided in the original recommendation does not meet the “new and relevant” requirement.

Paragraph 2.13. Requesting Statutory Time Waiver.  Recommendations (to include reconsiderations and upgrades) for veterans and nominations for the MOH, AFC, and DSM (pursuant to 10 U.S.C. § 9274) submitted after the applicable time limitation are only considered if submitted pursuant to 10 U.S.C. § 1130.  This legislation allows consideration of recommendations submitted beyond the time limitation.  

The requester submits a written request to a member of Congress for endorsement on a recommendation, pursuant to 10 U.S.C. § 1130.  Recommendations should include a narrative justification, citation, eyewitness statements (two or more), and supporting documents.  Refer to paragraph A3.5 and Table 2.1. Recommendation Checklist,  for additional guidance.  The member of Congress endorses the recommendation and submits it to the Air Force Legislative Liaison Office, 1160 Air Force Pentagon, Washington, DC 20330-1160.  The Air Force Legislative Liaison Office forwards the recommendation to AFPC/IG for action.

Paragraph 5.4. Correction of Military records.  The Air Force Board for Correction of Military Records (AFBCMR) considers applications after all administrative remedies have been exhausted to correct the alleged error or injustice.  Refer to Section 2B and Chapter 5 for administrative options, and AFI 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  

DAFMAN 36-2806 and 10 U.S.C. § 1130, provide procedures for consideration of proposals for decorations not previously submitted in a timely fashion.  Applicants should provide evidence they exhausted relief under 10 U.S.C. § 1130 prior to applying to the Board.  

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant did not exhaust 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 recognizes the applicant was the victim of abuse of authority in violation of 10 U.S.C. § 1034 and AFI 90-301 based on the substantiated allegation his CEM abused his authority by withholding the MSM for his PCS.  However, the applicant has provided no evidence he requested reconsideration of his MSM in accordance with DAFMAN 36-2806 and 10 U.S.C. § 1130.  Since the one-year time period for relief pursuant to DAFMAN 36-2806, paragraph A3.3 has likely expired, the Board recommends the applicant contact a member of congress to pursue additional administrative relief for award of the MSM for the inclusive period 1 Aug 17 to 1 Oct 19.  Should the aforementioned efforts for reconsideration be unsuccessful, and the applicant provides evidence he has exhausted relief pursuant to 10 U.S.C. § 1130, the Board will reconsider his request. Accordingly, 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 other avenues of administrative relief remain available, and the Board will reconsider the application only upon receipt of documentary evidence that such relief has been exhausted.

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-2022-00542 in Executive Session on 15 Dec 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 15 Feb 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.

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.