RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01889 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. Her officer performance report (OPR) rendered for the period 5 Jun 07 through 4 Jul 08 be removed, expunged, and permanently removed from her records. 2. Her Letter of Reprimand (LOR), dated 16 Jun 08, be removed from her records. 3. Any other negative or prejudicial documents relating to her LOR or referral OPR be removed from her records. 4. She be given an opportunity to attend in-residence Intermediate Developmental Education (IDE) appropriate to her year group. 5. Her permanent change of station (PCS) medal that was terminated be awarded. _________________________________________________________________ APPLICANT CONTENDS THAT: The applicant states she received an unjust letter of reprimand for the charges of forcing resolution of a financial dispute, encouraging an unprofessional relationship, and her NATO International Evaluation Record (IER) was marked below standard. The applicant provides a copy of an 18-page statement, with attachments, prepared for a Congressional complaint she filed. The applicant requests in the statement that eight areas of evidence be reviewed: 1. That all the original charges of the weak LOR be reviewed. 2. Review her rebuttal to the LOR. 3. Examine the partial transcripts of the taped conversation between she and her commander. She believes the conversation she had with her commander was the real reason and motive for the LOR. The commander informed her that she had created extra work for him and that he was aware that subordinates had gone to the Inspector General (IG) and Military Equal Opportunity (MEO) office. He assumed she had done the same and blamed her for being pressured into doing an investigation. Based on her conversations with the commander, she believes she is the victim of reprisal. 4. Evaluate the emails her area defense counsel (ADC) wrote to her leadership advising them they had a weak LOR that was not based on true misconduct. 5. Review the statement by the individual she was accused of encouraging to participate in an unprofessional relationship. 6. Analyze her rebuttal to the referral OPR. 7. Examine the revised referral OPR and notice how the financial charge is dropped, but the commander still insists that she alone encouraged an inappropriate relationship, that she was removed from a position even though she was being considered for a better job, and that on her NATO IER, she received below standard mark-downs twice. 8. Look at other documentation such as how her request to meet her new rater and receive feedback is ignored until it is too late. Look at her cancelled PCS orders and question those on her character reference list. In the remaining pages of her statement the applicant gives a detailed accounting of what took place leading to the actions she is contesting. In support of her request, the applicant provides copies of an 18-page congressional complaint of evidence, with attachments; the LOR and contested OPR with attachments, emails, a conversation transcript with her former commander, memoranda for record, a witness statement, character reference/witness lists, and extracts from her master personnel records. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is presently serving in the Regular Air Force in the grade of major having assumed that grade effective and with a date of rank (DOR) and effective date of 1 Nov 06. On 14 Mar 08, a Commander Directed Investigation (CDI) of the work climate in the unit was initiated. On 14 Apr 08, the staff judge advocate determined the CDI was legally sufficient and that while no standards had been clearly breached, the conduct of the applicant and others had negatively affected good order and discipline. The commander was advised that he had broad discretion to address the conduct of the individuals to include Letters of Couseling, feedbacks, or personnel changes. On 16 Jun 08, the applicant received an LOR for engaging in a pattern of poor judgment and conduct prejudicial to good order and discipline. Further, the applicant’s commander received an approved extension to extend the close-out date of her OPR. On 30 Jun 08, the commander used the applicant’s LOR to established a UIF. However, the applicant was not placed on the Control Roster. A resume of the applicant’s OPRs follows: CLOSE-OUT DATE OVERALL RATING 13 Nov 01 Meets Standards 13 Nov 02 Meets Standards 13 Nov 03 Meets Standards 4 Jun 04 Meets Standards 4 Jun 05 Meets Standards 4 Jun 06 Meets Standards 4 Jun 07 Meets Standards *4 Jul 08 Does Not Meet Standards 4 Jun 09 Meets standards *Contested report. _________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSIM recommends denial on removing the applicant’s LOR and UIF. DPSIM states that in accordance with AFI 36-2907, Unfavorable Information File, LORs are mandatory for file in the UIF for officer personnel. The complete DPSIM evaluation is at Exhibit C. HQ AFPC/DPAOC states the applicant is in the 1997 year group and would have to complete in-residence IDE NLT September 2011. The Calendar Year 2009 (CY 2009) Developmental Education Designation Board convened in the fall of 2009 to determine primary and alternate attendees for the academic year 2010-2011. All IDE slots were allocated and all alternates were chosen. There are no remaining slots at this time. The complete DPAOC evaluation is at Exhibit D. HQ AFPC/DPSID recommends denial of voiding the contested report. DPSID states that although the applicant suggests she was the victim of reprisal, the best evidence would be an official equal opportunity and treatment (EOT) investigation, reviewed and validated by appropriate officials and as an alternative, the use of statements from officials in the rating chain or other credible sources who have firsthand knowledge of the discrimination. It appears the applicant did not file a complaint that she was the victim of reprisal until the OPR was a matter of record. Air Force policy is that an evaluation report is accurate as written at the time it is accomplished and when placed in the member’s permanent record. The additional rater and reviewer (senior rater) concurred with the rater’s decision as annotated on the OPR. The applicant was provided an opportunity to rebut the rater’s comments and in fact stated, “I cannot disprove every one of the allegations mentioned in my OPR.” The evidence presented supports the evaluator’s remarks and ratings on the OPR and; therefore, no error or injustice has occurred. The complete DPSID evaluation is at Exhibit E. HQ AFPC/DPAPF makes no recommendation. DPAPF states the applicant is outside of her widow of consideration for IDE. If she went now, she would not be with her peers and if she does not attend, she cannot be granted grades and credit for coursework she never performed. A permanent deferment would allow future promotion boards to see that she was selected to go, but through no fault of her own, was not able to do so. The complete DPAPF evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 13 May 11 for review and comment within 30 days (Exhibit G). As of this date, this office has not received a response. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took careful notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendation of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. The applicant’s numerous contentions are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the evidence of record or the rationale provided by the Air Force offices of primary responsibility. We are not persuaded by the evidence that the actions taken by her commander were beyond his scope of authority, inappropriate, or arbitrary and capricious. We note that the applicant filed several complaints with the IG; however, according to the SAF/IG case file, none of the complaints warranted investigation. The applicant states the LOR is unjust and was based on personal reasons rather than true misconduct. Although the findings in the CDI Report state that no specific standards were violated, the investigation raised issues of the applicant’s officership, professionalism, and judgment. Additionally, it states she exercised poor judgment which negatively affected good order, discipline, and morale in her unit. Consequently, it appears there was a basis for the commander to question her officership and judgment and, consequently, take the administrative actions that he did. As such, and in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. The applicant alleges she has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC 1034). By policy, reprisal complaints must be filed within 60 days of the alleged incident or discovery to facilitate the IG’s investigation. We note, as stated above, the applicant filed several IG complaints; however, the available record does not substantiate that any of the complaints filed alleged reprisal and it appears no investigation was done. Nevertheless, we reviewed the evidence of record to reach our own independent determination of whether reprisal occurred. Based on our review, we do not conclude the applicant has been the victim of reprisal. The applicant has not established that she ever made a protected communication and the OPR, LOR, UIF or other actions were rendered in retaliation to aking a protected communication. Therefore, it is our determination the applicant has not been the victim of reprisal based on the evidence of record in this case. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered Docket Number BC- 2010-01889 in Executive Session on 29 June 2011, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 15 May 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, HQ AFPC/DPSIM, dated 18 Jun 10. Exhibit D. Letter, HQ AFPC/DPAOC, dated 15 Dec 10. Exhibit E. Letter, HQ AFPC/DPSID, dated 5 Apr 11. Exhibit F. Letter, HQ AFPC/DPAPF, dated 12 Apr 11. Exhibit G. Letter, SAF/MRBR, dated 13 May 11. Panel Chair