RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03760 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His AF IMT 475, Education/Training Report (TR), rendered for the period 21 Apr 09 thru 18 Dec 09, be declared void and removed from his records. _________________________________________________________________ APPLICANT CONTENDS THAT: The applicant provides a copy of the AF IMT 948, Application for Correction/Removal of Evaluation Reports from his commander requesting his AF Form 475 be removed due to inaccuracies and injustices and he agrees with the proposed actions. His commander states that his contested TR contained both a direct and implied derogatory statement regarding his performance and should have been processed as a referral TR in accordance with (IAW) AFI 36-2406, Officer and Enlisted Evaluation Systems, and thereby denied due process protections. A referral would have given him the opportunity to reply and required review/signature by a higher authority. He does not have the resources available to mount a defense regarding the contested TR. There is substantial evidence that proves the derogatory comments on the TR do not relate to his actual performance at the training school, as substantiated by a Commander-Directed Investigation (CDI). Instead the derogatory comments may have come from protected complaints made by him and subordinate classmates about the leadership at the training school. There is an ongoing criminal/Inspector General (IG) investigation against the leadership team at the school, to include the person who signed his TR. The Board should take action on the basis of procedural errors and the evidence provided in support of his petition and not wait for the final results of the IG and criminal processes. He has met two promotion boards with this derogatory report potentially serving as the source of his non-selection. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving on active duty in the grade of captain. On 20 Nov 11, the applicant filed a complaint with the 17th Training Wing Inspector General (17 TW/IG) alleging his TR rendered for the period 21 Apr 09 thru 18 Dec 09, was written as an adverse action, as a reprisal for his conversation with his chain of command regarding sexual harassment issues between his classmates. On 8 Dec 11, the 17 TW/IG reviewed the complaint and determined that while the applicant did provide potential extenuating circumstances that contributed to his delay in filing, the events in question occurred so long ago that it would be virtually impossible to gather sufficient credible evidence to accurately adjudicate the issues he wanted examined. Therefore, IAW AFI 90-301, Inspector General Complaints Resolution the applicant’s case was closed. The applicant was notified of the IG’s decision. The applicant filed an appeal through the Evaluation Report Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports. The ERAB considered the applicant’s appeal and was not convinced the report was unjust or inaccurate and denied her request for relief. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibit C and D. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial. DPSID states that the applicant contends the comment “Eventually met minimum Air Education and Training Command (AETC) standards of bearing, fitness and appearance with frequent mentoring and guidance from staff and squadron leadership; mentored frequently on leadership, communication and professionalism,” was derogatory; therefore, his TR should have been referred. However, they disagree that the comment was in fact derogatory in nature, and presume that in the absence of input or explanation from the evaluator, that they were in fact valid for comment on the contested TR. In addition, the CDI did not find the comments to be invalid; they merely only commented that they could find no evidence to prove they were warranted, which is clearly not the same thing. DPSID states the CDI report stated there appeared to be some circumstantial evidence which suggested a personality conflict, but there was insufficient evidence to conclude there were in fact any reprisal actions taken against the applicant by the evaluator in this case. DPSID states that Air Force policy is that an evaluation report is considered to represent the rating chain’s best judgment at the time it is rendered. Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record. The applicant has not substantiated the contested report was not rendered in good faith by the evaluator based on knowledge available at the time. The complete DPSID evaluation is at Exhibit C. AFPC/JA recommends denial. JA states that one of the conclusions of the CDI was that the Investigating Officer (IO) could find no documentary or testamentary evidence to support any poor performance on the part of the applicant or that he fell short of AETC standards. However, despite interviewing numerous witnesses, the IO failed to interview the single most important witness relative to this allegation – the author of the TR. Without, this person’s input, JA opines the report of investigation (ROI) is incomplete and unworthy of any consideration regarding the accuracy of the TR. JA states the applicant has failed to establish an error or injustice. The complete JA evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 16 Oct 12, for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. _________________________________________________________________ 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 warranting voidance and removal of the contested training report from his records. We are not persuaded by the evidence provided that the contested report is not a true and accurate assessment of his performance and demonstrated potential during the specified time period, that the comments contained in the report are in error, and that the report was prepared in a manner contrary to the provisions of the governing instruction. Therefore, we agree with the opinions and recommendations of 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. 4. The applicant alleges he 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. In the applicant’s case, he failed to file his IG complaint within a timely manner and it was closed by the IG without action. 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 the TR was rendered in retaliation to making 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. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ 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 AFBCMR Docket Number BC-2012-03760 in Executive Session on 9 May 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-03760 was considered: Exhibit A. DD Form 149, dated 21 Aug 12, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 17 Sep 12. Exhibit D. Letter, AFPC/JA, dated 3 Oct 12. Exhibit E. Letter, SAF/MRBR, dated 16 Oct 12. Panel Chair 2