RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-01386

XXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

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

1.   His referral officer performance report (OPR) ending 6 Jun 19 be replaced with the 3 May 19 non-referral OPR.

2.  The removal from command for “cause” memorandum dated 6 Jun 19 be changed to “not for cause.”

3.  He be awarded a Meritorious Service Medal (MSM) effective 30 May 19.

4. His officer selection brief (OSB) be updated to show credit for completing the Officer Instruction and Recruiting Special Duty (OI&RSD).

5.  He receive credit as a graduated commander, effective 13 Jun 19, with award of the C-prefix for his Duty Air Force Specialty Code (DAFSC).  

6.  The removal for developmental education (DE) eligibility dated 23 Jul 19 be revoked.

7.  He be permitted to wear the graduated commander badge on his uniform.

8.  All records resulting from the Air Force Office of Special Investigations (AFOSI) titling and indexing be removed from his record.

9.  His promotion recommendation form (PRF) for the CY22 Lieutenant Colonel Line of the Air Force (LAF) Central Selection Board (CSB) be re-accomplished.

10.  He receive a direct promotion to the rank of lieutenant colonel (O-5).

11. The National Crime Information Center (NCIC) criminal history and fingerprints be removed from his records.  

	
APPLICANT’S CONTENTIONS

On 13 Jun 18, he began a one-year command tour.  Throughout his tour, he never received any complaints and there were no investigations related to command climate, discrimination or any other conduct harmful to good order and discipline.  On 6 Jun 19, four days before he was due to relinquish command, the mission support group commander (MSG/CC) removed him from command.  He was fired due to an ongoing AFOSI investigation for allegedly failing to accept responsibility for a negative squadron climate.  The major command’s (MAJCOM) unit effectiveness inspection (UEI) in Apr 19 noted positive leadership effectiveness and on 3 May 19, the MSG/CC stated in an email he was a phenomenal, action oriented officer.  Then on 10 May 19, the MSG/CC alleged to AFOSI he criminally retaliated against a unit member based on questionable third hand comments.  On 11 Jun 19, the wing commander (WG/CC) recommended to the Air Force Personnel Center (AFPC) he be removed from the Air Command and Staff College (ACSC) list due to his inability to lead airmen and refusal to accept responsibility for the squadron’s negative climate. There was no letter of counseling (LOC) or letter of reprimand (LOR).  On 1 Aug 19, his area defense counsel (ADC) forwarded him an email that the AFOSI investigation was closed.  He was notified of the referral OPR and cancellation of his assignment.  Multiple records have been negatively impacted following the 2019 injustices and material errors and opportunities have been lost.  

In an email dated 27 Jun 22, he stated the AFBCMR closed his case because there was no supporting documentation, however, the additional supporting documentation received per his Freedom of Information Act (FOIA) request was provided as indicated on his DD Form 149, Application for Correction of Military Record, was provided.  

He prefers his referral OPR not be removed but that the OPR be replaced.  As late as 3 May 19, a draft OPR containing favorable information was created and routed for final coordination.  The draft OPR contained significant duty related accomplishments and push-lines.    

The offense for which he was indexed/titled for was not a qualifying offense in accordance with DODI 5505.11, Fingerprint Reporting Requirements. There was no probable cause he committed a criminal offense for which he was indexed.  The indexing should not have occurred because of the allegation of attempting to change a career vector of a subordinate, which is not a criminal offense.  

The AFBCMR is bound by precedent to treat similar cases equally.  He cites several AFBCMR, Army BCMR and Coast Guard cases in support of his request.  He was denied due process rights when his commander made an arbitrary and capricious decision to remove him from command.  The decision was not based on the AFOSI ROI since at the time there was no evidence of any misconduct on his part and the investigation was ongoing.  It was a presumption of guilt, and he was denied the presumption of innocence.  The MSG/CC also did not provide him an opportunity to provide any rebuttal statements.  The only allegation he was aware of before the removal from command was the single allegation of retaliation.  He did not receive the heavily redacted ROI that he violated Article 132, Retaliation, for attempting to change the alleged victim’s career vectoring.  His due process rights were violated as he did not know who his accusers were.  Squadron members were instructed to not respond to him.  The undue command influence created a chilling effect on witnesses who may have otherwise come forward on his behalf.  He received 14 support statements from his airmen.  His command created contradictory statements regarding his termination.  He went from a “rock star” to a “command failure” based on unverified allegations in the AFOSI ROI.   It was unfair for his command to remove him from command and DE attendance while withholding relevant information from him.  

On 23 Dec 19, his WG/CC denied his Article 138 complaint.  The WG/CC’s response contradicted the WG/IG.  He stated he was removed from DE due to the referral OPR.  His due process rights were sacrificed for expediency since the AFOSI report was not complete when he was removed from command.  They internally coordinated a plan to provide him with a generic relief of command memorandum, attached with emails and 13 allegations. The pattern of evasiveness continued with the removal from DE and the Article 138 decisions.  The MSG/CC provided inaccurate information to the AFOSI and to the WG/CC.  The AFOSI ROI is also unreliable as it is inaccurate and contains conflicting information.  It is replete with material errors.  He was adversely affected by an antagonistic attitude against him captured in the AFOSI ROI.  It was also wrong to request an AFOSI investigation and to authorize three search and seizures that yielded no evidence.  The command relied on allegations of [redacted] and [redacted] to take actions against him.  The EO report stated there was no basis for any disciplinary actions.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a major (O-4) in the Air Force.

The applicant provides redacted email from the MSG/CC to the WG/CC dated 4 Jun 19 stating she was relieving the applicant from command.  The email stated he created a stressful environment and fractured trust of his personnel.  Despite significant feedback and mentoring, the applicant continued to struggle due to his inability to accept feedback and take ownership. The email provided background and timeline; including a 7-8 Mar 19 Employment Office (EO) walk about climate assessment, 13 Mar 19 to 9 May 19, weekly mentoring sessions and a 13 May 19 AFOSI investigation that the applicant retaliated against members in his squadron for the EO assessment.

In a memorandum dated 6 Jun 19, the MSG/CC informed the applicant of the decision to relieve him from command for cause, in accordance with AFI 51-509, Appointment to and Assumption of Command.

The applicant received a referral “Does Not Meet Standards” OPR for the reporting period ending 6 Jun 19.  The OPR stated he fractured trust of his airmen and failed to accept responsibility for a negative squadron command.  He was relieved from command for cause.  

The applicant provides a memorandum dated 7 Jun 19 from the WG/EO office informing him they conducted an out and about assessment of his squadron to informally assess the human relations environment through discussions and subjective observations.  A total of 25 military members were randomly selected and interviewed for feedback.  The EO office noted the morale in the squadron among the members was high.  Individuals felt the workplace was enjoyable, honest and a great environment with no drama.  Other members felt there was a tight knit family atmosphere in the unit.  The overall human relations appeared very good and was directly attributed to [redacted] and the entire senior leadership’s innovative and proactive approach to care for their airmen.  The EO office made recommendations for improvement to include avoiding any reprisal or retaliatory actions based on the results of the report.  

On 11 Jun 19, the WG/CC requested the applicant be removed from his DE designation for cause.  The memorandum noted he was relieved from command for cause for his questionable pattern of behavior that erased the MSG/CC’s confidence in his ability to lead airmen.  His leadership created a stressful environment and fractured trust.  Despite significant feedback and mentoring, the applicant refused to accept responsibility for the negative climate in his squadron.  It was also stated a referral OPR was being accomplished and that he would be reassigned without a medal.  However, an unfavorable information file (UIF) would not be initiated.  

The AFOSI Report of Investigation (ROI) dated 8 Jul 19, shows the applicant was investigated for retaliating against two individuals from 13 May 19 to 2 Jul 19.  The MSG/CC initiated an investigation after conversation with the staff judge advocate (SJA) and the AFOSI.  It was alleged that the applicant may have violated Article 132, Retaliation, for attempting to change career vectoring, the projected permanent change of station (PCS) assignment, for the victim, in retaliation for what the applicant perceived was communication with the EO office.  The SJA was notified by the MSG/CC, who provided an email of the alleged retaliation.  The email stated the applicant conducted feedback with his superintendent and discussed that he had gone behind his back to the MSG about him, which triggered the MSG/CC to issue an EO climate assessment.  In the email, the applicant stated he was worried about his superintendent’s mental faculties and asked about procedures to reconsider a security clearance.  The second victim stated the applicant confronted him about statements made during the EO assessment.  On 10 May 19, his command believed the applicant had attempted to engage in reprisal or retaliation.  The applicant also approached the career field manager at their conference and indicated he wanted his superintendent’s PCS assignment turned off because he was starting a mutiny in the squadron.  The treatment by the applicant of the two victims could be categorized as harassment by bullying or hazing.  

The AFOSI ROI includes a memorandum dated 25 Mar 19 showing the WG/EO conducted an out and about assessment of the applicant’s squadron.  Through informal discussions with squadron personnel and observations, the EO office assessed the human relations environment.  The comments revealed a negative perception of the applicant’s leadership style.  He drilled down into processes and requested to view everything leaving the unit.  There was a perception he was afraid of failing and as a result was a micromanager.  He had an unrealistic perception of being perfect, which bled into his lack of trust and treatment of employees.  It was perceived he retaliated or removed personnel from their position for challenging him.  The comments revealed there was a negative perception of the commander amongst senior leadership and the members of the front office.  

On 21 Jul 19, the AF/A1 approved the request to remove the applicant from DE designation. Should the information related to the case change, the applicant could apply for an exception to policy (ETP) for restoration of his DE opportunities.  

On 18 Oct 19, the applicant submitted an informal Article 138 complaint alleging the removal from DE, relief of command and the referral OPR were in violation of regulations.  The applicant’s complaint was denied in whole.  The applicant was advised he could file a formal Article 138 complaint with the general court martial authority (GCMA).    

On 25 Oct 19, the applicant filed an IG complaint alleging the MSG/CC attempted to restrict him from making a complaint to the IG, Congress, EO or another agency (FRNO 2019-21731).   

In a memorandum dated 15 Nov 19, the applicant’s MSG/CC at the time, stated she reviewed the informal Article 138 complaint and denied relief in whole. She stated the decision to relieve him from command was based on the stressful environment and fractured trust.  The relevant details from the unit climate were outlined in the 25 Mar 19 EO assessment and was briefed to him on 12 Mar 19.  Contrary to his informal complaint, the assessment was not positive.  She expected a change of climate; however, the AFOSI ROI dated 8 Jul 19 showed no significant change.  

On 23 Dec 19, the WG/CC at the time of the applicant’s relief of command, denied his Article 138 complaint in whole.  

On 4 Feb 20, the MAJCOM commander (MAJCOM/CC) denied the applicant’s request for Article 138 complaint redress.  The MAJCOM/CC found the applicant did not demonstrate by a preponderance of evidence the MSG/CC’s decision to remove him from command was arbitrary, capricious, an abuse of discretion or unfair or unjust.  The applicant failed to establish a valid basis that he was wronged by the MSG/CC finding the MSG/CC had the authority to remove him from command for cause.  

The applicant provides a polygraph report dated 30 Apr 20, noting no deception was indicated.  The applicant discussed all the events and statements with his commander prior to him being relieved of duty.  

SAF/IG provides the MAJCOM/IG memorandum dated 23 Jun 20, informing the applicant they conducted a review of his complaint (FRNO 2019-21731) of reprisal and restriction per 10 U.S.C. § 1034.  The applicant’s complaint was dismissed, and no further investigation was warranted.  The DOD OIG oversight comments state the MSG/CC did not attempt to restrict the applicant as alleged.  The MSG/CC never told the applicant he could not contact an IG or congressional representative.  The MSG/CC was told by the EO office that the applicant may attempt to retaliate against those he felt were responsible for the results of the EO assessment.  An AFOSI investigation substantiated the command climate, which affected the health of at least two senior enlisted leaders requiring medical treatment.  The report received extensive service level review from SAF/IGQ and the DOD OIG agreed with the basis for dismissal and case closure recommendation.  

The applicant provides FBI Report dated 2 Jul 21, which shows he was charged with Retaliation, violation of Article 132, UCMJ; however, no criminal action was taken and the information was for administrative action only.  The information was reported to the FBI by the AFOSI.  

On 6 Jan 22, the evaluation report appeals board (ERAB) denied the applicant’s request for substitution or removal of the contested referral OPR.  The ERAB was not convinced there was an error or injustice.  

The applicant cites AFBCMR, Army BCMR and Coast Guard BCMR cases as precedent to grant his request.  The cited ROPs are included in Exhibit A.  The Board recommended the applicant in BC-2007-03405-2 receive a direct promotion since the evidence showed he could not get meaningful consideration from an SSB.  The Board determined there were instances whereby the magnitude of an injustice is such that it can only be rectified by a direct promotion.  The applicant contends the same magnitude is applicable in his case.  Since his referral OPR, he has been unable to compete for key leadership positions or awards.  The opportunities were lost and cannot be corrected administratively.  

	BC-1996-02683-2: On 4 Dec 03, the Board reconsidered the applicant’s request and granted removal of the Article 15, referral OPR, corrected his records to show he was not discharged but continued to serve and directed letters of evaluation (LOE) be placed in his record for the period there were no performance reports.  The applicant was also granted SSB consideration for promotion to major.  The Board concluded the Article 15 and punishment were unduly harsh and that the Air Force Discharge Review Board (AFDRB) was not convinced he cheated on his squadron officer school (SOS) examination.  Further, the investigating officer (IO) concluded there was insufficient evidence to prove or disprove he cheated.  The IO recommended no action be taken, but the applicant was offered an Article 15.

	BC-1998-00094:  On 15 Sep 98, the Board recommended removal of the applicant’s Article 15 for adultery and fraternization, removal of a referral OPR and that if he was not selected for promotion to captain (O-3), he receives SSB consideration.  The Board noted the Air Force Personnel Board (AFPB) found that the evidence did not support the not qualified for promotion action and the AFPB found him qualified for promotion.  The Board found the basis for the not qualified for promotion and Article 15 were the same and the Article 15 should be set aside as well.  

	BC-2000-01481: On 6 Dec 00, the Board majority recommended removal of the Article 15 for wrongful use of rank and position to gain sexual favors and referral enlisted performance report (EPR).  The Board also recommended supplemental promotion consideration to the rank of master sergeant (E-7).  The Board found the applicant’s legal counsel was not easily accessible and noted the alleged victim changed her story after further questioning.  

	BC-2000-02224: On 27 Jun 01 and 27 Aug 01, the Board majority recommended the LOR and referral OPR be removed.  The Board minority also recommended the applicant receive an MSM.  The Board majority found that the LOR, unfavorable information file (UIF) and referral OPR were unduly harsh, and the applicant’s overall duty performance outweighed the infractions found in the IG investigation.  The Board also noted the applicant entered a command that already had problems, was not up to standards and her extraordinary efforts to turnaround the unit. The Board majority noted her superiors were well aware of the situation between the applicant and one particular subordinate and believed intervention may have precluded the ensuing situation.

	BC-2001-00126: On 24 Apr 01, the Board granted removal of the referral OPR.  The Board found the comments on the OPR were vague and did not cite any specifics on effectiveness or substandard performance.  The Board found there was doubt as to the accuracy of the report.  

	BC-2005-02650, BC-2000-02818, BC-2002-020059, BC-2002-00858, BC-2002-01523, BC-2001-01423, BC-2001-00019, BC-2000-00234, BC-2001-01727, BC-2002-01667, BC-2000-02733, BC-2002-0104, BC-2003-00197, BC-2003-02291 and BC-2009-00541 pertain to the removal of referral enlisted performance reports (EPR).       

	BC-2001-00224: On 5 Sep 01, the Board recommended removal of the Article 15 and that the contested referral EPR be amended.  The Board majority adopted the recommendations of AFLSA/JAJM and AFPC/DPPPEP’s that the Article 15 be set aside and the EPR be corrected.  The Board noted by law, the applicant’s blood alcohol content did not qualify for the charge of drunk driving.  

	BC-2004-00500:  On 18 May 04, the Board recommended removal of an OPR.  The Board found the rater’s admittance of deliberately weakening the OPR sufficient to find there may have been bias.  However, the Board denied the applicant’s request for a command assignment and direct promotion to lieutenant colonel.

	BC-2004-01239: The Board recommended removal of a LOR dated 17 Jul 03 and referral OPR.  The Board noted the applicant was denied timely access to the IG investigation for which the LOR was based, thereby limiting his ability to make a rebuttal.  However, the Board denied removal of a subsequent LOR dated 23 Jan 03, finding it was within his commander’s authority to issue the LOR and there was no evidence the investigation was erroneous or flawed.  

	BC-2006-00407:  On 8 Aug 06, the Board recommended removal of the Article 15 dated 20 Jan 04.  The Board, however, noted it was not in their authority to correct records in the NCIC data base and recommended the applicant contact AFOSI.  In recommending removal of the Article 15, the Board adopted the opinion of AFLSA/JAJM that the evidence did not support the offense for Article 121 allegation that he wrongfully appropriated government property.  The Board found sufficient evidence to doubt the allegations against the application.      

	BC-2006-01168: The Board recommended removal of the Article 15 and referral OPR, directed a PRF be accomplished, his records show his name was not removed from the CY04 Captain’s Promotion Process and that he was not retired but continued to serve on active duty.  The Board found the information provided by the WG/IG in support of the applicant’s request persuasive that relief was appropriate.  The Board also noted the vague and broad nature of the allegations, finding doubt as to the veracity of the allegations.  The Board was also not convinced the applicant’s commander acted in good faith.   

	BC-2006-01883:  The Board recommended removal of a referral OPR and LOR and that his name was not removed from the CY05 Lieutenant Colonel Selection Board List.  While the Board noted the applicant’s allegations of reprisal were not substantiated, the Board noted the negative actions taken against the applicant were initiated by a higher level commander due to the grade of the applicant’s commander who was alleged to have reprised against the applicant.  The Board conducted an independent review and based on the actions taken against the applicant occurred after his MEO complaint, the Board concluded the applicant was reprised against.  

 	BC-2007-03405-2: On 10 Jun 10, the Board recommended the applicant be awarded additional inactive duty training (IDT) and active duty training (ADT) points and additional flying training hours, his LOR be removed, he was not reassigned to the Nonaffiliated Reserve Section (NARS) but remained assigned to his unit, his disqualification from aviation service be removed, he was selected for promotion to major upon approval by the Secretary of Defense, he was qualified for F-16 requalification training and his non-selections for promotion to major be removed.  The basis of the Board’s recommendation was founded on the recommendation of the Air Force Review Boards Agency (AFBRA) Legal Advisor and the AFOSI judge advocate that there was no basis for the discipline and adverse actions taken against the applicant.  

	BC-2007-03975: The Board recommended removal of the contested OPR.  The Board found the applicant provided reasonable doubt as to whether or not the OPR was true and an accurate portrayal of his performance.  While the Board could not confirm whether a personality conflict existed between the applicant and his supervisor, they believed the benefit of doubt should be resolved in the applicant’s favor.

	BC-2011-04308: On 12 Jul 12, the Board recommended his LOR, unfavorable information file and PRFs be removed and that he be considered by a SSB for promotion to lieutenant colonel.  In this respect, the Board noted the form he signed acknowledging the prohibition of sharing passwords with contractors did not apply to him.  Further, there was evidence that the sharing of passwords was condoned by leadership and such activities continued for an extended period of time due to mission requirements.  The applicant also passed a polygraph test which showed no deception that his leadership was aware and condoned the sharing of passwords.  There was also no evidence, the incident resulted in any breach of security.  However, the Board found no evidence to warrant a direct promotion to lieutenant colonel.  

	BC-2012-05444: On 12 Sep 13, the Board recommended the applicant’s duty title for the period 27 Nov 95 to 21 Mar 03 be changed from Executive Officer to Commander and his referral OPR be removed from his record.  The Board noted the duties and responsibilities in the contested OPR indicated his time as the squadron commander.  However, the Board found no evidence concerning his OPRs for the periods ending 31 Dec 03 and 31 Oct 04 and denied the request for removal from his records.

	BC-2012-03153: On 25 Apr 13, the Board recommended the letter of admonishment dated 10 Mar 10, the LOR dated 23 Mar 10, the proposed revocation of his security clearance, the UIF, adverse documents in his officer selection record and referral OPR ending 3 Aug 10 be removed from his record.  The Board also recommended he be awarded additional IDT points and that his records show he was not released from active Reserve status.  While the IG determined the applicant was not the victim of reprisal, the Board conducted an independent review and concluded the applicant was subjected to reprisal in violation of 10 U.S.C. § 1034.  

	BC-2013-000787:  On 21 Jan 14, the Board recommended the applicant’s referral OPR be removed.  The Board noted the applicant’s unit indicated to NGB that her records included documentation to show her behavior deficiency and the attempts to correct her behavior; however, there was no documentation in her records.  The Board also noted that AFI 36-2406, Officer and Enlisted Evaluation Systems, states comments on referral reports must be reasonably specific.

	Army BCMR 9608904C070209: The Army BCMR granted the removal of the contested officer evaluation report (OER) finding there was no evidence of an improper relationship with a subordinate.  The rater used an unproved allegation as the sole bases for the negative comments in his OER.

	Coast Guard 35-97:  On 4 Mar 98, the chief warrant officer’s request for removal of an OER and promotion with back pay was approved.  The Board majority found the OER was biased against the applicant and that he became the subject of the OER after intervening on behalf of the crew following an incident.  The OER was determined inaccurate and misleading.  

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

APPLICABLE AUTHORITY/GUIDANCE

10 U.S.C. § 1034 and AFI 90-301, Inspector General Complaints Resolution, reprisal and/or restriction against military members for making protected disclosures is prohibited.  

10 U.S.C. § 932(a), Retaliation, Any person who with intent to retaliate against any person for reporting or planning to report a criminal offense, or make or plan to make a protected communication, or with the intent to discourage any person from reporting a criminal offense or making or planning to make a protected communication (1) wrongfully takes or threatens to take an adverse personnel action against any person; or (2) wrongfully withholds or threatens to withhold a favorable personnel action with respect to any person.  

Per 10 U.S.C. § 615(a)(3), DoDI 1320.14, DoD Commissioned Officer Promotion Program Procedures, and DAFI 36-2501, Officer Promotions and Selective Continuation, paragraph A14.2.1. All adverse information an officer receives will be filed in the OSR and be considered by promotion selection, special selection, and selective continuation boards to the grade of O-4 and above (to include processes for O-3 promotions that have “extraordinary adverse information”).  Adverse information is any substantiated finding or conclusion from an officially documented investigation or inquiry or any other credible information of an adverse nature.  To be adverse, the information must be derogatory, unfavorable or of a nature that reflects unacceptable conduct, integrity or judgement on the part of the individual.  Adverse information includes but is not limited to any substantiated finding or conclusion from an investigation or inquiry, regardless of whether command action was taken, court-martial findings of guilt, nonjudicial punishment (NJP) pursuant to Article 15, LOR, letter of admonishment, relief of command for cause, removal from developmental education for cause, and letter of counseling.  All adverse information as defined will be permanently placed in the record.  Except for set aside of a court-martial or NJP action, removal of adverse information from the records may only be directed by an AFBCMR recommendation.  

AFI 51-509, Appointment to and Assumption of Command, paragraph 14.2. For Cause.  An officer may be relieved of command for cause, including instances where the superior competent authority has lost confidence in the officer’s ability to command due to misconduct, poor judgment, the subordinate’s inability to complete assigned duties, the interests of good order and discipline, morale, the good of the organization, or other similar reasons.  A superior competent authority’s decision to relieve a commander for cause must not be arbitrary and capricious.  

AFI 36-2656, Developmental Education, paragraph 3.5.4, When AF/A1 approves a request from a senior rater, management level or developmental team to remove an officer from the DE designation list for cause, that officer will be permanently removed from the nomination list.

AFI 171-101, Criminal Investigations Program, paragraph 2.1.1, AFOSI is a field operating agency under the administrative guidance and oversight of the SAF/IG.  It is a federal law enforcement agency with responsibility for conducting criminal investigations, counterintelligence and specialized investigative activities, protective service operations and integrated force protection.  Paragraph 2.1.4, AFOSI field unit leaders have the authority and independent discretion to assume primary investigative responsibility when it involves Air Force or DOD personnel, property or resources.  Paragraph 2.5., AFOSI and security forces will index subjects of criminal investigations in the Defense Central Index of Investigations (DCII) as soon as it is determined that credible information exists that the subject committed a criminal offense.  The act of titling and indexing are administrative procedures and do not connote any degree of guilt or innocence.  

DODI 5505.11, Fingerprint Reporting Requirements, paragraph 1.2, DOD law enforcement agencies (LEA) will collect fingerprints and criminal history record information (CHRI) for service members investigated for all offenses punishable by imprisonment listed in the punitive articles of the UCMJ or elsewhere in the U.S.C. Paragraph 2.2.c(1).  Commanders and directors or DOD LEA to provide disposition for cases investigated by a Defense Criminal Investigative Organization (DCIO) or other DOD LEA, to include any administrative, nonjudicial punishment or judicial action taken as a result of an investigation, to include a decision to take no action.  

AFMAN 36-2806, Military Awards: Criteria and Procedures, paragraph 2.12.2., Currently serving members may submit a time waiver and request for a decoration through the chain of command.  

AIR FORCE EVALUATION

DAF/JA recommends denial.  Based on a careful review of the voluminous record, DAF/JA finds no error or injustice tending to undermine any command action. There is ample evidence the MSG/CC could have reasonably relied on, and the evidence was documented in her 4 Jun 19 email to the WG/CC informing him of her intent to remove the applicant from command for cause.  The MSG/CC’s repeated attempts to mentor/counsel the applicant from Mar to May 19 cut against any allegations that her command actions taken against the applicant were arbitrary and capricious.  Hence, the commander demonstrated neither clear error nor abuse of discretion.

With respect to the Article 138 or IG complaints, DAF/JA reviewed the evidence and similarly see no indication of an error or injustice.  The denials of his requests for redress were legally sufficient.  

The applicant submitted witness letters to correct some of the erroneous statements or conclusions in the AFOSI ROI and polygraph evidence.  However, this evidence does not prove the level of error that would undermine the investigation or the command’s actions.  It should be noted the applicant’s conduct was so detrimental, the MSG/CC relieved him of command prior to the completion of the AFOSI investigation, which was within her discretion.  The applicant also submits multiple historical BCMR cases but the distinction in those cases centered around insufficient evidence.  On the contrary, there is sufficient evidence of the applicant’s conduct that supports the Air Force’s actions against him.  

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 19 Sep 22 for comment (Exhibit F.  In his response, he contends, the advisory opinion is fatally flawed.  He was given no opportunity to orientate himself to the unverified allegations and the facts were deliberately withheld.  The opportunities to fabricate were plentiful.  The allegations were unreported until mid-May, after the start of the OSI investigation.  Further, the actual statements made during the interviews may have varied from that recorded in the ROI.  The summarized allegations related to his commander by the IO during the incomplete investigation may not have been what the complainants actually said.  

He agrees the ROI contains erroneous statements and conclusions.  His commander relied on the ROI that no significant change occurred in the overall environment of the squadron.  The OSI is law enforcement.  Reprisal and unit morale are not crimes investigated by AFOSI.  

His commander withheld the allegations and issued him a generic memorandum informing him he was relieved of command.  Further, it was his commander’s fifth version of the OPR that she stated she relied on AFOSI’s interim updates.  She then responded to his Article 138 complaint and attached version 4 of the OPR, which was inconsistent.  AFI 36-2406, Officer and Enlisted Evaluations Systems, states in all cases, comments must be specific.  

On 30 May 19, his commanders recommended he receive an end of tour medal for exemplary service.  On 3 Jun 19, upon his return from leave, he began to prepare his remarks for the 13 Jun 19 change of command when he was abruptly detained by law enforcement and never returned as the squadron commander.  

On 4 Jun 19, his commanders started to commit inappropriate actions of spoilation when they destroyed, altered and concealed information during the ongoing criminal investigation.  They went to great lengths to shield the record in secrecy to his disadvantage in violation of his due process rights.

On 15 Jul 20, all four of his Article 138 complaints were denied.  He reminded his commander AFI 36-2406 required clear and detailed feedback.  Her response was that the matter was complete.  She refused to provide him with the specifics of those involved with the formal complaints and instead stated he was fired due to anonymous complaints in the EO office’s out and about report.  The EO office then created an internal report.  He was unaware of this report until 2021 that individuals felt the workplace was enjoyable and they had trust in management.  

His commanders and the IO were biased against him.  The IO was not a fact finder.  He created an unreliable ROI with erroneous conclusions.  He attempted to hide exculpatory and favorable evidence and mis-recorded information.  His commander was also so biased she sent contradictory emails misrepresenting him.  In May 19, he reported to his commander that squadron members were lying about him.  She took no action and assured him that the lies would come out in the investigations.  Days later, she rushed into the investigation and made arbitrary decisions based on the allegations with no attempt to verify the accuracy of the allegations.  

On 10 Sep 19, he received a FOIA record that contained a heavily redacted ROI.  He does not know who gave a statement to AFOSI or who was interviewed.  He was never informed he was under investigation for attempting to change career vectoring for a senior enlisted member.  The ROI actually confirmed he never had any vector.  

It was an error in judgment to rely on the investigation to determine a negative squadron climate and fractured trust.  His due process rights were violated.  In a previous case, the AFBCMR determined due process requires the applicant to have the opportunity to review the statements.  There was a clear error in judgment to rely on assumptions and allegations from an isolated group of squadron members. After the EO report, it was stated he did not communicate with the senior enlisted leader (SEL) for several weeks.  The SEL did not tell the IO that his email account was unable to receive communications.  There is a trove of electronic records to show communication between them.  His commander was aware the SEL was mad at him about his feedback session two weeks prior to his AFOSI interview.  It was also stated he confronted the director of operations about comments made during the EO assessment, which was protected communication.  The advisory does not accurately recall his interactions with the director of operations.  

He had a 21-year unblemished record of excellence.  Then suddenly between 3 and 4 Jun 19, he allegedly departed from that trend.  He is confident the Board can connect the dots.  The only criminal activity in the case was the misleading AFOSI testimony.  

In an additional response dated 30 Oct 22, he states the two page advisory failed to address each of his claims as required in accordance with statutory law.  He provides the decision of the District of Columbia Court of Appeals (CoA) in Frizelle vs. the Secretary of Transportation remanding the case back to the BCMR for reconsideration of the plaintiff’s request for removal or redaction of his officer evaluation reports (OERs).  The District Court granted summary judgment for the Secretary; however, the CoA ruled the board failed to address two of the applicant’s arguments that were not facially frivolous and reversed and remanded.  On remand, the board determined there was an error and deleted a sentence; however, it declined to strike the OER in its entirety or to make any other changes. The Court concluded that many of the plaintiff’s challenges were without merit; however, found the Board did not adequately respond to the applicant’s complaint and did not provide a reason that a court could measure for its decision.  Per the District of Columbia Court CoA, the AFBCMR is required to address all of his 37 claims.  Further, in Wilhelmus v. Geren the federal court decided the BCMR is bound by precedent and treat similar cases in a similar manner unless it provides a legitimate reason in each instance.

The applicant’s complete response is at Exhibit G.

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/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant is confident in his belief he did nothing wrong and makes many unsubstantiated allegations.  The Board will first address his contention the MSG/CC reprised and retaliated against him in violation of DODD 7050.06, Military Whistleblower Protection, 10 U.S.C. § 1034 and AFI 90-301.  While the applicant filed Article 138 complaints, there was no evidence he was the victim of reprisal or retaliation. There is no evidence the applicant was told he could not make protected communication or any evidence that the MSG/CC initiated the unfavorable personnel actions in reprisal for making any protected communication.  Accordingly, the Board agrees with the SAF/IG and DOD IG’s decisions the applicant’s Article 138 complaints be dismissed with no further investigation. The applicant contends the AFOSI investigation was inappropriate for the non-criminal allegations pertaining to unit climate and reprisal and that the ROI contained material error.  Retaliation is a criminal offense per 10 U.S.C. § 932(a).  The evidence shows he attempted to cancel [redacted’s] follow on assignment for his protected communication made during the EO out and about climate assessment.  He also confronted [redacted] that he was aware of the statements made to the EO official.  The Board finds the applicant’s actions were an attempt to intimidate and bully his subordinates, contrary to the guidance he was provided by the EO office.  Accordingly, the Board finds the MSG/CC’s decision to initiate an AFOSI investigation for the crime of retaliation was proper and in accordance with regulations.  Therefore, the Board finds his titling in the NCIC was correct and required for the substantiated allegation of retaliation.  While the AFOSI ROI may include administrative errors, the administrative errors do not overcome the substantiated allegation the applicant retaliated against his subordinates for making protected communication.  With respect to the applicant’s contention the IO was biased against him, other than his own uncorroborated assertions he has provided no evidence to substantiate this to be the case.  The applicant also contends the MSG/CC unjustly removed him from command and denied him due process; however, the Board disagrees.  The Board notes AFI 51-509 states the decision to remove a commander must not be arbitrary or capricious. In this respect, the Board finds the MSG/CC’s decision to remove the applicant from command was not arbitrary or capricious but based on an abundance of evidence, to include repetitive mentoring and counseling sessions, the AFOSI ROI dated 8 Jul 19 and the EO Out and About memorandum dated 7 Jun 19.  Moreover, AFI 51-509 permits superior commanders to remove an officer from command for cause due to loss of confidence, in the interest of good order and discipline and for the good of the organization.  Accordingly, the Board finds the removal from command was well-within his commander’s discretion and in accordance with AFI 51-509. The applicant also contends he should not have been removed from DE eligibility; however, the request for removal from DE appears to be in accordance with Air Force instructions and the AF/A1 approved the request on 21 Jul 19.  The applicant also requests his referral OPR for the period ending 6 Jun 19 be replaced with a non-referral OPR.  In this respect, the Board agrees with the ERAB’s decision on 6 Jan 22 that the applicant provided insufficient evidence to warrant the substitution of the referral OPR.  Since the Board finds insufficient reason to substitute the OPR, the Board finds no reason to amend his OSB, re-accomplish his PRF for the CY22 Lieutenant Colonel CSB or recommend he receive any special promotion consideration.  With respect to the applicant’s request for award of the MSM, the applicant may request reconsideration for award of the MSM through his chain of command in accordance with DAFMAN 36-2806.  However, the Board finds insufficient reason to award the applicant an MSM based on his allegations of reprisal and retaliation. The applicant is also reminded per 10 U.S.C. § 615(a)(3), DoDI 1320.14, and DAFI 36-2501, Officer Promotions and Selective Continuation, all adverse information an officer receives will be filed in the OSR and be considered by promotion selection, special selection, and selective continuation boards to the grade of O-4 and above. Adverse information is any substantiated finding or conclusion from an officially documented investigation or inquiry or any other credible information of an adverse nature.  While it is within the AFBCMR’s authority to remove adverse information from an applicant’s records, in this case, the Board finds the unfavorable personnel actions were not unduly harsh or disproportionate for the offense of retaliation.  The applicant cites Wilhelmus v. Geren and that Courts have ruled the BCMR must treat similarly situated applicants similarly.  He then cites 37 AFBCMR, Army BCMR and Coast Guard BCMR cases that he contends are similar to his case.  However, after reviewing all of the provided cases, the Board does not find any of the cited cases even slightly similar to the applicant’s case.  In this respect, not one applicant was in the rank of major, relieved of command following an AFOSI investigation, removed from DE attendance, issued a referral OPR and titled on the NCIC for substantiated retaliation.  Accordingly, the Board finds insufficient evidence to grant any relief on any precedent. Moreover, the Board, which serves on behalf of the Secretary of the Air Force, is charged to review each case independently based on the facts and evidence of the specific case.  In this case, the Board finds the unfavorable personnel actions taken against the applicant were due to his own misconduct and his attempts to retaliate without retribution.   Therefore, the Board recommends against correcting the record.  

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-2022-01386 in Executive Session on 18 Nov 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 17 May 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  AFOSI ROI, dated 8 Jul 19 (WITHDRAWN).
Exhibit D:  USAFE/IGQ, w/atchs, dated 23 Jun 20 (WITHDRAWN).
Exhibit E:	Advisory Opinion, DAF/JA, dated 19 Sep 22.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 19 Sep 22.
Exhibit G:	Applicant’s Response, w/atchs, dated 22 Oct 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.