RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00313 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her records be corrected to reflect she was promoted to the grade of senior master sergeant (E-8), effective and with a date of rank of 23 Dec 05, rather than 8 Jan 09. ________________________________________________________________ APPLICANT CONTENDS THAT: She was discriminated against when she was denied promotion to senior master sergeant (E-8) and subsequently not permitted to apply for a position for which she was the only qualified candidate. Her contentions are validated in the Resolution Agreement and Release of Claim regarding her Equal Opportunity Complaint (RC-07-001-01). In support of her request, the applicant provides copies of the Resolution Agreement and Release of Claim and her senior master sergeant (E-8) promotion order. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Information extracted from the Military Personnel Data System (MilPDS) indicates the applicant enlisted in the Nevada Air National Guard on 22 Sep 86 and was progressively promoted to the grade of master sergeant (E-7), effective and with a date of rank of 6 Nov 99, prior to the matter under review. On 11 May 94, the applicant was voluntarily ordered to active duty under the Active Guard/Reserve (AGR) program. In accordance with ANGI 36-101, The Active Guard/Reserve Program, AGR members are reserve component members on full-time duty to organize, administer, recruit, instruct, and train members of the Guard and Reserve. Service in the AGR program is credited as active service. On 5 Feb 07, the applicant voluntarily resigned her AGR position, reverting to her underlying traditional (part-time) status as a member of the Nevada Air National Guard. She was credited with 12 years, 8 months, and 24 days of total active service. Available documentation indicates the applicant filed a formal discrimination complaint on 11 Feb 07 alleging discrimination based on reprisal for filing a formal Equal Opportunity (EO) complaint in 1996, and testifying in support of an EEO complaint in 1998. She alleged that she was not selected for the position of senior production controller or permitted to apply for the position of communication and information officer because of these activities. During the investigation, the applicant alleged she was also the victim of gender-based discrimination. The investigation was conducted in XXXXXXX, Nevada, from 18 through 20 Sep 07. The Report of Investigation (ROI) indicates the applicant demonstrated, by a preponderance of the evidence, she was the victim of discrimination based on reprisal when she was not selected for the senior production controller position and she was the victim of gender based-discrimination when she was not provided a waiver so she could receive a promotion, while males who were similarly situated received waivers and subsequent promotions. The investigator recommended the complaint be resolved through the applicant’s return to the AGR program, promotion to senior master sergeant (E-8), and assignment to a position providing her a career path allowing her progression as her experience and performance allow. On 14 Nov 08, the applicant and the Nevada Military Department executed a Resolution Agreement and Release of Claim documenting the terms of their agreement in full settlement of the her discrimination complaint. The agreement indicates the Nevada Military Department will place her in an AGR position in the Joint Force Headquarters; recommend her for promotion to the grade of senior master sergeant (E-8), provided she is otherwise qualified; and support her AFBCMR request for retroactive promotion to a date as early as 23 Dec 05. On 21 Nov 08, the applicant was voluntarily ordered to active duty for five years under the AGR program, effective 12 Nov 08. On 8 Jan 09, the applicant was promoted to the grade of senior master sergeant (E-8). The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PS recommends denial, indicating the documentation provided by the applicant does not support her request. Clearly the intent of the Resolution Agreement and Release of Claim was for her promotion in the future (emphasis added), provided she met all the qualifications expected of any AGR being considered for promotion. Additionally, AGR promotions to senior master sergeant (E-8) and chief master sergeant (E-9) must be accommodated within the state’s authorized AGR controlled grade ceilings for those grades in accordance with ANGI 36-101. Unfortunately, the documentation provided by the applicant is not sufficient to determine when a control grade resource would have become available to accommodate her promotion. Therefore, a determination of when she would have been promoted cannot be made. A complete copy of the NGB/A1PS evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant takes issue with the argument the intent of the agreement was her future promotion. The third term of the agreement clearly states the agency agrees to support her claim before the AFBCMR for retroactive promotion to a date as early as 23 Dec 05. A complete copy of the applicant’s response, including attachments, is at Exhibit E. By electronic mail, dated 25 May 10, the applicant provides copies of the Report of Investigation of her discrimination complaint, her letter of resignation from her AGR position, her DD Form 214, Certificate of Release or Discharge from Active Duty, and other records. A complete copy of the applicant’s additional submission is at Exhibit F. ________________________________________________________________ 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting corrective action. After a thorough review of the available evidence, particularly the Investigative Report and Resolution Agreement and Release of Claim related to the applicant’s EEO complaint, it appears the applicant was the victim of discrimination and reprisal when her leadership repeatedly and deliberately denied her full and fair consideration for advancement. Therefore, we believe it is in the interest of justice to grant the requested relief and recommend her records be corrected to the extent indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that she was promoted to the grade of senior master sergeant (E-8), Air National Guard, effective and with a date of rank (DOR) of 23 Dec 05, rather than 8 Jan 09. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2009-00313 in Executive Session on 8 Jun 10, under the provisions of AFI 36-2603: , Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 14 Jan 09, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/A1PS, dated 21 Jan 10. Exhibit D. Letter, AFBCMR, dated 16 Apr 10. Exhibit E. Letter, Applicant, dated 28 Apr 10. Exhibit F. Electronic Mail, Applicant, dated 25 May 10, w/atchs. Chair