AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

AUG 0 4 1998 

DOCKET NUMBER:  95-01190 
COUNSEL : 
HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT : - 

t 

Her separation from active duty in the Illinois Air National Guard 
be determined invalid. 

She  be  given  an  opportunity  for  an  administrative  review  board 
hearing on the record after an opportunity to be heard; or, in the 
alternative,  she  be  restored  to  her  Active  Guard/Reserve  (AGR) 
status, with back pay  and allowances and with  credit for the time 
in grade for all purposes to include pay, promotion and retirement 
from the date of discharge to the date of reinstatement. 

The NGB Form 26, Department of the Army and the Air Force, National 
Guard Bureau, ANG Active Duty Performance Rating, rendered for the 
period  1 February  1990 *to 31  January  1991, be  expunged  from  her 
record. 

She be awarded proficiency pay for the period October 1990 through 
31 March 1992. 

APPLICANT CONTENDS  THAT: 
Through  counsel, applicant contends  her  separation from  Full-Time 
National Guard duty was unjust. 

Except  for  four weeks  of  schooling  in  January  [1990], no  further 
on-the-job  training  ( O J T )   or  even  initial  counseling  was  given 
until January 1991 when it appeared that she was not successful as 
a recruiter. 

She felt very uncomfortable with her supervisor, who would glare at 
her  (applicant's)  chest  and  when  the  glaring  became  obvious  she 
would  tell her  (applicant) her  ribbons were  not  aligned properly. 
Additionally,  her  supervisor held  "closed  door"  discussions  with 
her  about'her married  life  and  her  happiness  with  her  husband. 
Finally, on 7 August  1990, her  supervisor made remarks and touched 
her  in  such  a  way  so  that  she  perceived  the  incident  as  an 
inappropriate "advance. "  She rebuked her supervisor's  advance and 
fled the room. 

Her supervisor proceeded to harass her and counsel her continuously 
saying  that  everyone  is not meant  to  be  a  recruiter.  After  the 
incident  and  because  of  the  constant  harassment,  her  production 
level decreased. 
The  'No 
Discrimination"  finding  in  response  to  her  military 
The  environment  became 
discrimination  complaint  was  arbitrary. 
abusive  when  she  rebuked  her  supervisor's  advances. 
Until  the 
incident,  she was  meeting  production  goals,  with  minimal  help  of 
fellow recruiters.  Finally, her production fell off because of her 
supervisor's  unprofessional  conduct  Sand  the  hostile  atmosphere 
within the office.  The investigator 'did not base his  decision on 
the  evidence  in  the  record. 
His  faiJure  to  do  so  caused  her 
eventual unwarranted discharge. 

She  was  given  a  derogatory  annual  performance  rating  for  her 
inability to meet  the assigned monthly  goal.  Her failure to meet 
her goals was a result, not of her inability, but  of the constant 
harassment  by  her  supervisor. 
Her  not  being  a  "team  player" 
resulted from the  fact that  she did  not  want  to  "play the game." 
Her  supervisor  wanted  her  to,  and  as  a  result  the  working 
conditions  became  abusive. 
The  report  is  administratively 
incorrect and in violation of ANGR  39-62. 
She  was  told  she  was  being  discharged  by  reason  of  substandard 
performance and that her separation was  involuntary.  However, her 
report of  separation indicates that her  separation was due to the 
expiration  of  her  current  tour. 
Proper  procedures  in  the 
separation process were not followed.  As a  result, she was denied 
a  fair  and  impartial  review of  the  circumstances  surrounding  the 
separation. 
The  State  Adjutant  General  relied  solely  on  the 
provisions  of  ANGR  35-03  to  separate  her  from  the  Active 
Guard/Reserve  (AGR) program.  Sole reliance on this  regulation is 
inappropriate,  as  ANGR  39-10  is  the  controlling  regulation  for 
involuntary separation based on unsatisfactory performance.  It is 
readily  apparent  the  State  did  not  adhere  to  the  policy  and 
procedures established therein.  This failure to follow regulations 
is  a  direct  violation  of  her  rights  and  makes  her  separation 
invalid. 

The unwarranted denial of proficiency pay violated AFR  39-45.  She 
was  assigned  as  a  recruiter  with  the  special  duty  identifier  of 
99500.  She met the requirements for eligibility and yet was unduly 
denied pay because of her supervisor's  hostile treatment of her. 

In  support  of  applicant's  request,  counsel  submitted  a  12-page 
supplemental statement, with attachments.  (Exhibit A) 

STATEMENT OF FACTS: 

Prior to the events under review, applicant had four years of prior 
active enlisted  service in the Regular Air  Force  (29 January 1980 

I 

2 

AFBCMR  95-01190 

to 28  January  1984)  and prior service in the Alabama Air  National 
Guard. 

- 

On  27  July  1989,  she enlisted in the  Illinois Air  National  Guard 
(ILANG) and  as  a  Reserve  of  the  Air  Force  for  a  period  of  six 
years, with the duty title of unit personnelist. 
She  was  ordered  to  active  duty  under  the  provisions  of  32  USC 
502(f)  and ANGR  35-03  by  orders dated  24  August  1989.  By  orders 
dated 28 November 1989,  she was ordered to active duty under 32 USC 
502(f)  and  ANGR  35-03,  for  the  period  5  December  1989  through 
4  December 1994. 
Effective  5  December  1989,  she  was  assigned  Duty  Air  Force 
Specialty Code  (DAFSC) -99500,  witih the duty title of "Recruiter." 
An  ANG  Active  Duty  Performance 'Rating  (NGB Form 26) was  rendered 
for the period 1 February 1990 to 31 January 1991, with an overall 
evaluation rating of "Unsatisfactory." 
Evidence provided by  the applicant indicates that, on 25  February 
1991,  the  wing  commander  notified  her  she  was  being  placed  on 
probation in accordance with ANGR  33-03, chapter 4 ,   until 30 April 
App 1 i cant 
1991,  for  failure  to  meet  her  recruiting  goals. 
acknowledged receipt of the letter on 27 February 1991. 
On  3  March  1991,  applicant  filed  an  Equal  Opportunity Treatment 
(EOT) complaint  of  sexual harassment against her  supervisor.  On 
9 April  1991,  the  Social  Actions  Officer's  Report  of  Inquiry 
recommended  a  full  investigation  regarding  this  complaint  be 
conducted  and  that  applicant  be  put  in  a  temporary  position  and 
removed from the recruiting office immediately until the complaint 
was resolved. 
In  the  20  July  1991  Report  of  Investigation,  provided  with 
applicant's  application, the Investigating Officer concluded there 
was no evidence to support the allegation of sexual harassment; the 
further  allegation  of  religious  discrimination  stemmed  from  a 
one-time  incident  that  was  stopped  when  it  was  brought  to  the 
attention of  applicant's  supervisor that  Christian music  offended 
the  applicant;  that  applicant  misperceived  her  supervisor's 
actions;  and  that  applicant's  perception  of  her  supervisor's 
intentions  may  have  been  fed  by  widespread  but  unsubstantiated 
rumors  about  the  supervisor's  homosexuality. 
The  Investigating 
Officer recommended that due to the damage the complaint caused to 
the working relationship between applicant and her  supervisor, the 
applicant  be  removed  from  the  Recruiting  Office  and  offered  the 
next AGR position on base for which she was qualified.  On 25 July 
1991, the results of the formal investigation were provided  to the 
applicant  for  review.  On  4 August  1991,  after  meeting  with  her 
commander  and  discussing  the  conclusions  and  recommendations 
contained in the Report of Investigation, applicant stated that she 
did not accept the findings as  a resolution of her complaint.  The 
case  was  forwarded  through  appropriate  channels  to  The  Adjutant 

3 

AFBCMR  95-01190 

, 

General  of  Illinois  who  adopted  the  investigator's  recommended 
findings that  there was  no  evidence to  support the allegation of 
On  20  December 
sexual  harassment  or  religious  discrimination. 
1991,  the  National  Guard  Bureau,  after  reviewing  the  applicable 
documents  and  finding no  deficiencies  in compliance with  law and 
regulation, administratively closed the case. 
On  15 April  1991,  applicant was  detailed to administrative duties 
in the Personnel Office.  She was returned to recruiting duties on 
25 October 1991.  On 25 October 1991,  the wing  commander notified 
applicant  that  she  was  being  given  another  60-day  probationary 
period  since  she  had  completed  o d y   45  days  of  the  60  days 
established by  her  initial probationary  letter  dated  25  February 
1991.  Applicant was  further advised that should she fail to meet 
her recruiting goals of €&ve  enlistments for November and December 
1991,  she would be issued a 30-day termination letter on 1 January 
1992 ending her Recruiting AGR tour effective 30 January 1992. 
On 22 November  1991,  the Inspector General advised applicant there 
were f e w   positions within the Illinois ANG which could accommodate 
her  as  a  recruiter  and  that assignment as other than a  recruiter 
would  stop  her  entitlement  to  proficiency  pay. 
Therefore,  the 
decision was made  to return her  to the position she held prior  to 
the investigation of her EOT  complaint, but  to have her report to 
another supervisor at a different level. 

On  3  January  1992,  the  Director  of  Personnel  notified  applicant 
that because of her inability to meet her recruiting goals, he was 
recommending her recruiting tour be terminated for substandard duty 
performance under the provisions  of ANGR  35-03, para  6-5c(4).  On 
the same date, applicant acknowledged receipt of the memorandum and 
her understanding that she had five  (5) days to respond.  Applicant 
responded  to  the  notification  on  9  January  1992  through  her 
attorney. 

On  29  January  1992, the  Director  of  Personnel recommended  to  the 
Wing  Deputy  Chief  of  Staff  that  applicant's  recruiting  tour  be 
terminated for substandard duty performance in accordance with ANGR 
35-03, para 6-5c(4).  The Wing Deputy Commander for Support and the 
Wing Commander concurred with the recommendation. 
On  20  March  1992,  The  Adjutant  General  notified  applicant  that 
after a  thorough review of  the  investigating officer's  report and 
applicant's 
recommendation  for 
involuntary  separation  from  Full-Time  National  Guard  Duty  for 
substandard  performance,  he  approved  the  involuntary  separation 
action under the provisions of ANGR 35-03, paragraph 6-5, effective 
31 March 1992. 

rebuttal  to  her  commander's 

On 31 March 1992, applicant was honorably released from active duty 
under the provisions of ANGR  35-03 by  reason of completion of AGR 
military duty tour and  transferred to the Air National Guard, State 
of 1lli.nois.  She was credited with 2 years, 6 months, and 26 days 
of active service during this period. 

4 

AFBCMR 95-01190 

Information  derived  from  applicant's  master  military  pay  account 
reflects she was paid Special Duty Assignment  (SDA) pay as follows 
(Exhibit L) : 

1 Feb  90  -  30  Apr 90 
1 May 90  -  31 Dec 90 
1 Jan 91 -  31 Dec 9 1  
1 Jan 92  -  3 1  May 92 

$165  per month 
$220 per month 
$220  per month 
$220  per month 

.  TOTAL PAID  $5,555  00 

Effective  9  August ,1994, applicant  was  promoted  to  the  grade  of 
master sergeant in the ILANG and as  a member of the Reserve of the 
Air Force.  She is.currently serving as a logistics plans manager. 

AIR FORCE EVALUATION: 

The  Chief,  Personnel  Utilization,  ANGRC/MPPUR,  recommended  denial 
of  the  requested  relief,  stating  the  actions  of  applicant's 
supervisors  and  commanders  were  consistent  with  the  applicable 
regulation covering ANG  recruiters.  Applicant's  EOT complaint was 
thoroughly  investigated  and  the  findings  and  conclusions  were 
supported by  the evidence of record and the complaint was properly 
dismissed by the National Guard Bureau Central Personnel Center. 

MPPUR further stated that ANG recruiters who do not meet production 
goals  are  returned  to  their  previous  military  assignments. 
Applicant  was  properly  terminated  from  her  recruiter  tour  and 
reassigned to her previous career field as a traditional Guardsman. 

MPPUR  provided  a  letter  from  the  ILANG  with  expanded  comments 
pertaining  to  events  surrounding applicant's  termination  from her 
AGR recruiter position. 

The complete evaluation, with attachments, is at Exhibit C. 

APPLICANT'S REVIEW OF A I R   FORCE EVALUATION: 
Counsel  took  exception  to  several  issues  contained  in  the  letter 
from the  ILANG  (attached to Exhibit  C ) .   She stated applicant was 
treated  differently  when  she  refused  the  sexual  advances  of  her 
female  superior. 
In  applicant's  original  appeal  it  is  well 
documented  that  she  was  not  treated  similar  to  other  recruiters 
after  an  incident  that  occurred  between  applicant  and  the 
supervisor.  The letter from the ILANG suggests that applicant has 
failed to  show that  she was  subjected to  sexual advances  because 
there were no witnesses so the allegations of harassment cannot be 
While  there  may  be  no  direct  evidence  of 
substantiated. 

5 

AFBCMR  95-01190 

, 

harassment, the circumstantial evidence and the credibility of the 
applicant provide sufficient evidence. 

Counsel  further  stated  that  applicant  was  not  able  to  meet  the 
standards placed  on her  because  of  the  conduct of  her  supervisor 
which was  sufficiently severe or pervasive to alter the conditions 
of the employment and create an abusive working environm&k. 
While it is true that individuals who cannot meet recruiting goals 
should  be  removed  from  their  position,  this  should  only  happen 
after the recruiter is given proper  training and a  fair chance of 
obtaining  their  goal.  Applicant  was  not  given  that  opportunity. 
She  was  constantly  harassed  by  a  supervisor  that  thwarted  her 
recruiting efforts rather than promoted them. 

The harassment continued and the supervisor even used the denial of 
proficiency  pay  as  a  punishment. 
Applicant  was  not  the  only 
recruiter not  to meet her  goal,  yet  she was  the only one to have 
proficiency pay withheld. 

Applicant deserved an opportunity to  show that  she could recruit, 
unrestrained by  the influence of her supervisor.  This opportunity 
was  denied  her,  the  prejudice  she  suffered  was  only  compounded 
because she was taken out of the recruiting j o b   with no opportunity 
for  a  hearing. 
Applicant's  separation  was  clearly  in  error, 
otherwise there would  have been  consistency with what  was  written 
on her DD Form 214 and what the notification of separation stated. 

Counsel's  response, with attachments, is at Exhibit E. 

ADDITIONAL AIR FORCE EVALUATION: 

The Administrative Law Team, NGB-JA, provided  comments addressing 
the issues of this case.  JA stated that the Board cannot grant all 
the  relief  requested  by  applicant,  even  should  it  be  found 
warranted. 
performance 
appraisal, and may  change her pay  records to require special duty 
assignment pay.  However, it may  not reinstate her  in a  full time 
AGR  slot.  The Adjutant  General  (TAG) manages  recruiting programs 
within each respective state.  The TAG is the final authority  for 
determining  whether  individuals  in  the  AGR  program  will  be 
separated (ANGR 35-03, para 6-ld). 

The  board  may  correct  applicant's 

JA  noted  applicant's  contentions  that  the  reasons  given  for  her 
separation  are  inconsistent  and,  if  the  separation  was  for 
substandard  performance,  the  state  should  have  followed  the 
procedures  of  ANGR  39-10. 
T h i s   regulation  required  the 
recommendation of  a board  of officers prior  to separating members 
JA  stated 
with  more  than  six  years  of  service  in  the  Guard. 
applicant's  reliance on ANGR 39-10 is misplaced.  ANGR 35-03 covers 
the  separation of  full-time AGR  personnel.  ANGR  39-10 concerned 
the  administrative separation of  enlisted  personnel  from  the  Air 

6 

AFBCMR  95-01190 

National Guard.  Applicant has not been discharged from the Guard; 
she  was  released  from  a  full  time  AGR  tour  and  returned  to  her 
normal Guard  status.  The state followed the procedures set forth 
by  regulation. 
Since  the  state  did  not  commit  any  error, 
applicant's  request for relief on this ground should be denied. 

Applicant's  contention that  she was  denied  due  process' since  the 
investigation was insufficient to protect her rights, and the state 
did  not  make  an  effort  to  counsel  or  rehabilitate  her  is  not 
supported by the record.  Although not required by the regulation, 
an IO was appointed to ensure that the recommendation to terminate 
applicant was  proper  and  in accord with  the  regulations.  The  IO  ' 
concluded  that  it  was . 
Applicant  received  counseling  and 
retraining.  Both were ineffective.  During the 11 months she was a 
In  addition,  her  ' 
recruiter,  she  was  counseled  numerous  times. 
supervisors  gave,  or  offered,  her  additional  training.  She  was  , 
given  the  chance  to make  her  production  goals  under  a  different  ' 
supervisor,  but  still  failed  to  meet  them.  Applicant  failed  to 
show  any  injustice  or  material  error  in  the  procedures  used  to 
separate her. 

Applicant argues she should not have been removed withdut a review 
by  a board  after the third  year of  her  tour  to determine whether 
her  tour  should  be  extended. 
Applicant  was  separated  due  to 
substandard performance, IAW ANGR  35-03 and ANGR  33-02, para  4-3b 
(ANG Recruiting Management  and  Programs) .  ANGR  33-02 states that 
unsatisfactory performance, not corrected through normal documented 
counseling  with  ample  opportunity  for  correction,  can  result  in 
probation. 
Applicant  was  counseled  on  her  failure  to  meet  her 
goals, and was  given additional  training, none of which  corrected 
her  substandard  performance.  She was  placed  on  probation  twice, 
and  failed  to meet  her  goals.  ANGR  33-02 states that  failure  to 
improve during probation will result in termination.  Applicant was 
separated  IAW the  applicable regulations, and  was  not  entitled to 
an AGR review board. 

Applicant has not shown that the IO'S  finding of no discrimination 
was  arbitrary  or  unsupported  by  the  evidence. 
The  gravamen  of 
applicant's  complaint is that,  after  she spurned her  supervisor's 
sexual  advances,  her  supervisor  continually  counseled  and 
reprimanded her,  with  the  intent of  terminating her.  The  record 
does not  support this theory, and many  of the  "facts" asserted by 
applicant to  support  her  allegations  are  erroneous, inconsistent, 
or open to other interpretations. 

Applicant's  allegations  are  based  on  an  alleged  incident  in  the 
women's  locker room.  Applicant claims that her supervisor put her 
hand on her  (applicant's) shoulder and offered to help her become a 
successful recruiter.  Applicant  interpreted this as a request for 
sexual favors.  The supervisor denies the locker room incident took 
place  as  applicant described it.  There were  no witnesses  to  the 
locker room incident.  Consequently, it is not clear which version 
is the right one. 

7 

AFBCMR  95- 01190 

Testimony  shows  that  the  supervisor's  practice  of  staring  at 
applicant's  chest  was  probably  related  to  the  placement  and 
alignment  of  applicant's  ribbons.  The  supervisor  has,  on  other 
occasions, noticed uniform deficiencies on the chaplain  (male) and 
other members.  The supervisor was, by a l l  accounts, zealous on the 
proper  wearing  of  the  uniform. 
Applicant,  according  to  some 
recruiters, needed scrutiny in this area. 
The file shows extensive counseling and training by the supervisor 
in an effort to improve applicant's  performance, including sending 
her  to seminars, giving her  training videos,  and taking her aiong 
or-  interviews to observe proper  techniques 
These actions do: not 
support  the  claim  that  she  attempted  to  prevent  applicant  f r o m  
achieving her  production goals.  In addition, applicant  failed to 
meet her goals under the direction of a different supervisor.  He 
(the  other  supervisor)  testified  that  he  offered  her  help  and 
additional  training,  which  she  declined.  Consequently,  the  ZO's 
finding of no discrimination is supported by the evidence. 
The  IO found that  applicant was  sincere  in  filing  her  complaint, 
but  that she had misperceived her  supervisor's  actions.  He  found 
that  this misperception  was  fed by  widespread  but  unsubstantiated 
rumors  about  the  supervisor's  sexual  preferences.  Applicant  has 
not  shown  that  a  reasonable  person  would  have  perceived  the 
sentence "I  can really help  you get  ahead  in  this  job" as  sexual 
harassment,  or  even  that  applicant  perceived  it  as  such. 
The 
sentence  does  not  make  any  specific  reference  to  sex,  or  sexual 
favors. 
In  addition,  it  was  spoken  by  a  supervisor  to  a 
subordinate who  had  failed  to  make  her  production  goals  for  the 
preceding  two months.  A  reasonable person  would  assume  that  the 
supervisor of an office that consistently met  its production goals 
was' offering  to  help  make  one  of  its  weaker  members  a  good 
recruiter.  Applicant's  testimony effectively shows that she leapt 
to  the  conclusion  that  her  supervisor made  a  request  for  sexual 
favors, and  then used  the supervisor's  reluctance to bring  up  the 
issue again as confirmation of her suspicions.  That does not meet 
a reasonable person standard.  In addition, her contention that she 
then  began  to be  counseled  all  the  time  is  not  supported by  the 
record.  Applicant claims her supervisor began to threaten her with 
termination  in  September,  a  month  after  the  alleged  incident. 
However,  the  first  counseling  statement  in  the  record  is  dated 
10 October  1990,  a  month  after  applicant  failed  to  enlist  any 
recruits  for  September  and  fully  two  months  after  the  alleged 
incident 

Applicant's  contention that she believed  she was being harassed  is 
also  made  less  believable  by  the  fact  that  she  didn't  file  her 
complaint until just prior to her referral appraisal and the letter 
placing  her  on  probation 
She  claims  she  filed  at  that  time 
because she had just found out about sexual discrimination from her 
EEO  duties.  Her argument is not supported by the record.  Both the 
supervisor and the Deputy Commander for Support testified that they 
asked  applicant the  definition of sexual harassment,  and  what  she 
would  do  about  it,  during  her  interview  a  year  earlier. 
S h e  

8 

AFBCMR  95-01190 

successfully  defined  harassment  and  indicated  she  would  take  the 
problem up the chain of command.  However, the Deputy Commander for 
Support stated that applicant never told him her low production was 
due  to  a  problem  with  her  supervisor. 
She  denied  having  any 
problems and stated that she was trying but  just could not do the 
job. 

- 

The  record  does  not  support  applicant's  argument  that  after  the 
locker room incident, and because of the resulting harassment, her 
production level decreased.  The file shows she met her recruiting 
goal  in  August. 
Moreover,  her  low  production  did  notL begin  in 
September.  Contrary to her assertions, she- did not meet her goals 
in June or July, prior to the alleged incident.  AdditionaLly, she 
failed to meet her goals when she was under another supervisor. 

Finally, applicant contends she was still under the same supervisor 
when she returned to the recruiting office in October 1991 and that 
she was still not given the proper training.  Both allegations are 
unsupported. 
She  returned  to  the  recruiting  office -under the 
supervision of  1Lt  S---,  who  offered  her  any  additional  training 
she might  want.  She  declined  his  offer,  indicating that  she did 
not need any additional training. 

JA  stated  applicant  has  not  shown  that  the  poor  working 
relationship between her  and  her  supervisor is evidence of  sexual 
harassment.  It appears related to applicant's  inability to do her 
job,  her  supervisor's  admittedly  tough  management  style,  and 
applicant's  practice  of  criticizing  her  supervisor  in  front  of 
members in other offices. 

Applicant  requests  that  her  appraisal  be  expunged  because  of  the 
incdrrect use of the rating chain.  She does not claim the rating 
in  her  performance  is  inaccurate.  The  approving official  on  the 
report contends that it is accurate. 

Regarding  Special  Duty  Assignment  Pay  (SDAP), although  applicant 
did  not  make  her  production  goals,  the  record  shows  that  other 
members  of  the  recruiting  office  frequently  did  not  make  their 
production  goals. 
The  State  failed  to  include  any  rebuttal 
evidence to show that other recruiters were also docked their SDAP. 
Since applicant's  allegation that the non-continuation of SDAP was 
due to retaliation has not been rebutted, she should receive relief 
on this ground. 
The complete evaluation is at Exhibit F. 
The Chief, Personnel Utilization, ANG/MPPU, amended their previous 
recommendation  (at Exhibit  C)  and  recommended  that  applicant  be 
paid  Special  Duty  Assignment  Pay  (SDAP) for  the  period  Oct  90 - 
31 Mar 92, citing the same basis cited in the NGB-JA evaluation. 
The complete additional ANGRC/MPPUR evaluation is at Exhibit I. 

9 

AFBCMR 95-01190 

.. 

APPLICANT'S REVIEW OF  ADDITIONAL AIR FORCE  EVALUATION: 
Applicant  disagreed  with  the  NGB-JA  evaluation  and  provided 
additional comments regarding her  training/production, counseling, 
the contested appraisal report, and harassment. 

In her conclusion, she stated the actions taken by her supervisors 
and  commanders  violated  applicable  regulations  covering  Air 
National  Guard  recruiters.  Although  she  agrees  that  individuals 
who  can't  meet  goal  should  be  remo,ved  from  their  recruiting 
position,  she thinks this  should only happen after the individual 
has been  given proper  training and a  fair chance of-  obtaining the 
This  was  not  the  situation  in  her  case.  This  case  has 
goal. 
focused too much on her production level instead of the real issue 
-  that being her supervisor's  constant harassment of her.  The Air 
National Guard  failed to address and explain the issue of why  she 
received a lesser amount of pro pay which she was entitled to.  Pro 
pay is not to be used as a disciplinary tool.  Although she was not 
the  only  recruiter  who  failed  to  meet  goal,  she  was  the  only 
recruiter to have the appropriate amount of pro pay withheld by her 
supervisor.  This is evidence of her supervisor's  harassment.  Her 
supervisor did not treat everyone fairly, or the same. 
Applicant's  response, with attachments, is at Exhibit H. 
In  response  to  the  ANG/MPPU  revised  evaluation, applicant  stated 
ANG/MPPU concedes to the fact that her noncontinuation of SDAP  was 
due  to  retaliation  by  her  supervisor. 
She  asks  the  Board  to 
remember  that,  (1) this  retaliation took place  less  than  60  days 
following the date of the locker room incident, and  (2) she was the 
only recruiter to have pro pay withheld despite the fact that other 
recruiters had the same recruiting numbers for September 1990. 

She  further  stated  that  her  appraisal was  in  obvious  retaliation 
for her filing her EEO complaint, which is further evidenced by the 
fact that it contains only negative commentary.  The report should 
be  expunged  because  it  did  not  comply  with  the  established  time 
frame  (5 Dec  8 9   -  4  Dec  g o ) ,   its tone was  defamatory, and  it was 
not properly approved. 
Applicant's  response is at Exhibit K. 

THE BOARD CONCLUDES THAT: 

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 probable  injustice with  regard to the applicant's 

10 

AFBCMR  95-01190 

.  minute-by-minute actions,  and  periods  of  probation. 

release  from  her  AGR  tour.  After  careful  consideration  of  the 
evidence  provided,  we  did  not  find  that  applicant's  involuntary 
release from her active duty  tour  for substandard performance  was 
contrary to the governing regulation, ANGR  35-03, or that she was 
denied rights to which she was entitled.  In addition, based on the 
evidence  available  for  our  review,  we  cannot  verify  applicant's 
allegations of sexual harassment.  Regardless, we do bglieve that 
she  was  treated  differently  than  other  recruiters who  were  not 
meeting  their  monthly  recruiting  production  goals. 
This  is 
evidenced by  what, in our opinion, appears to have been excessive 
counseling sessions, undue supervision documentkng the applicant's 
In  view  of 
this,  we  believe  that  the  applicant  has  been  the  victim  of  an 
injustice  warranting  some  form  of  relief. 
This  Board's 
recommending authority  is  limited with-  respect  to  State  actions. 
Therefore,  favorable  consideration  of  applicant's  requests  to 
invalidate her  separation from active duty and  reinstate her to a 
full-time National Guard program is not possible.  Nevertheless, in 
view  of  our  findings,  we  believe  her  Federal  records  should  be 
corrected  to  show  she  was  continued  on  active  duty  until  her 
established  release date  of  4  December  1994, with  entitlement  to 
Special  Duty  Assignment  (SDA)  pay. 
We  are  not  inclined  to 
recommend  continuation  beyond  this  date,  since  there  is  no 
statutory authority which guarantees continued service for members 
in  the  applicant's  former position  upon  completion  of  a  special 
tour  of  active  duty.  We  believe  the  applicant  will  be  afforded 
fitting  relief by  the  corrections to  the  record  we propose,  with 
respect  to  those  actions  which  are  properly  the  subject  of  our 
review. 
4 .   Contrary to applicant's  contentions that she was denied SDA  pay 
during  the period October 1990 through  31 March  1992, information 
extracted  from  her  master  military  pay  records  reflects  that  she 
did,  in  fact, receive  SDA  pay  during  the period  in question.  In 
view  of  the  foregoing,  and  absent  evidence  to  the  contrary, 
applicant's  request for SDA pay  for the period  in question is not 
favorably considered. 

5.  Based  on a  careful  review of  the  available  evidence, we  find 
insufficient evidence has been presented to support a  finding that 
the  ANG  Active  Duty  Performance  Rating,  rendered  for  the  period 
1 February 1990 to 31 January 1991, is an inaccurate assessment of 
the applicant's  duty performance during the contested rating period 
or  that  the  report  was  prepared  contrary  to  the  governing 
regulation.  Accordingly,  applicant's  request  that  the  contested 
report be expunged from her records is not favorably considered. 

6.  The  applicant's case  is adequately documented  and  it  has  not 
been shown that a personal appearance with or without counsel will 
materially  add  to  our  understanding  of  the  issues  involved 
pertaining  to  applicant's  remaining  requests. 
Therefore,  the 
request for a hearing is not favorably considered. 

11 

AFBCMR  95-01190 

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  not 
released from active duty on 31 March 1992, but was contcnued in an 
active  duty  status,  with  entitlement  to  Special  Duty  Assignment 
pay,  until  4 December  1994,  at  which  time,  she  was  honorably 
released from active duty by reason of completion of her Air Guard 
Reserve  (AGR)  military  duty  tour,  and -  was  transferred  to  the 
Illinois Air National Guard: 

i 

% -  

The  following members  of the Board  considered this application in 
Executive  Session on  9 December  1997 and  24  June 1998, under  the 
provisions of AFI 36-2603: 

Ms. Charlene M.  Bradley, Panel Chair 
Ms. Ann L. Heidig, Member 
Mr.  Edward H.  Parker, Member 

All  members  voted  to  correct  the  records,  as  recommended.  The 
following documentary evidence was considered: 

' 

Exhibit 
Exhibit 
Exhibit 
Exhibit 

A. 
B. 
C. 
D. 

Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 

E. 
F. 
G. 
H. 
I. 
J. 
K. 
L. 

DD Form 149, dated 30 Mar 95, w/atchs. 
Applicant's Master Personnel Records. 
- Letter, ANG/MPPUR, dated 8 Apr 96, w/atchs. 
Letter, SAF/MIBR, dated 22 Apr 96; AFBCMR Ltr, 
dated 10 Mav 96. 
Letter from-Counsel, dated 10 Jun 96, w/atchs. 
Letter, NGB-JA, dated 12 Aug 96. 
Letter, AFBCMR, dated 19 Dec 96. _
Letter from Applicant, dated 15 Jan 97, w/atchs. 
Letter, ANG/MPPU, dated 28 Jan 97. 
- Letter, AFBCMR, dated 14 May 97. 
Letter from Applicant, dated 3  Jun 97. 
Datafax fr DFAS-DE/FYCC, dated 18 May 98, w/atchs. 

_

 

CHARLENE M.  BRADLEY 
Panel Chair 

U 

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AFBCMR  95-01190