RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-01267
                 INDEX CODE 111.02  111.05
                 COUNSEL:  None

                 HEARING DESIRED:  No
_________________________________________________________________

APPLICANT REQUESTS THAT:

The referral Enlisted Performance Report (EPR) for the period 3 August
1996 through 30 June 1997 be removed from her records.
_________________________________________________________________

APPLICANT CONTENDS THAT:

This rating does not reflect her true duty performance. It  was  given
in reprisal for her reporting  unfair  treatment,  disregard  for  her
health and safety, and repeated mental abuse by her supervisors.  This
treatment resulted in two  Inspector  General  (IG)  reports  and  “an
ongoing Department of Defense [DOD]  Reprisal  Complaint  against  all
those in [her] chain of command.”

In support, she provides her rebuttal to the referral EPR, performance
feedback reports,  a  supplemental  evaluation  sheet,  and  character
statements.

A copy of applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

During the period in question, applicant was a staff sergeant  serving
as an assistant dedicated crew chief assigned to the  43rd  Electronic
Combat Squadron (ECS) at Davis-Monthan AFB, AZ.

Most of applicant’s medical records were  lost  by  Davis-Monthan  and
some  of  her  military  records  are  also  missing.  The   following
information was extrapolated from applicant’s available records:

On 10 June 1995, she  was  involved  in  a  vehicular  accident.   She
apparently was not evaluated for any injury from this  accident  until
two days later  and  then  for  complaints  regarding  her  neck.  She
continued under doctors’ care for lower back and  neck  pain  and  was
frequently profiled for restricted activity. She was taking prescribed
muscle relaxants, pain relievers and  attending  physical  therapy  to
control pain.

On 23 May 1996 she was medically evaluated and released for entry into
the Weight Management Program (WMP).

According to her 30 April 1997  rebuttal,  the  applicant  received  a
Letter of Reprimand (LOR), apparently for unsatisfactory  progress  in
the WMP. She wanted to be medically deferred due to her  chronic  back
pain.

On  6  May  1997,  applicant  was  notified  that  her  commander  was
considering imposing nonjudicial punishment on  her  for  operating  a
passenger car at the main gate while impaired by 0.10 grams of alcohol
per 100 milliliters of blood or greater on or about 27 April 1997.  On
12 May 1997, after consulting with counsel, applicant waived her right
to a trial by  court-martial,  requested  a  personal  appearance  and
submitted a written presentation. On 12 May 1997, she was found guilty
by her commander who imposed the following  punishment:  Reduction  to
senior airman with a new date  of  rank  (DOR)  of  12  May  1997  and
forfeiture of  $200.00  pay  per  month  for  two  months,  which  was
suspended until 11 November 1997.  Applicant appealed the  punishment;
however, the appeal was denied on 30 May  1997.  The  Article  15  was
filed in her Unfavorable Information File (UIF) on  2  June  1997.  In
addition, her base driving privileges were restricted to going to/from
work and dropping off/picking up her daughter at day care.

Pursuant to a  commander-directed  evaluation,  a  Medical  Evaluation
Board (MEB) summary, dated 5 June 1997, indicates  the  applicant  was
currently on profile preventing her from  lifting,  pushing,  pulling,
bicycling, prolonged standing,  sitting  and  walking.  Diagnosis  was
chronic low back pain and pain in the area of  the  sacroiliac  joint.
Physical exam was essentially normal for  the  significant  amount  of
pain  and  pain  behavior  displayed.  No  neurologic  impingement  on
physical examination or  on  magnetic  resonance  imaging  scan  could
explain her pain symptoms. She had chronic mechanical back  pain  with
an overlay of chronic pain syndrome as  well.  The  summary  concluded
that it was unlikely, due to the prolonged nature of her complaints as
well as her personality and reaction  to  this  pain  that  she  would
function in a worldwide qualified manner within the Air Force or  with
any job which required significant physical activity.

On 16 June 1997, she requested to be medically deferred from the  WMP;
her request was  denied.  On  18  June  1997,  she  requested  driving
privileges to  and  from  water  aerobics  and  swimming,  which  were
exercises she was cleared to do.  This request was also denied.

On 30 June 1997, the contested EPR was referred to the applicant.   It
had an overall rating of “2,” and two of the seven  performance  facts
were marked to the far left. Applicant rebutted the referral report on
10 July 1997. The ratings for  applicant’s  performance  reports  from
1986 to 1997 were:  9, 9, 9, 9, 9, 5 (New System), 5, 5, 5, 5,  4,  5,
4, and 2 (Referral/Contested report).

She received an LOR on 25 July 1997 for a second unsatisfactory period
in the WMP.

On 29 July 1997, applicant filed a complaint with the  355th  Wing  IG
regarding mistreatment and harassment by her  squadron  commander  and
section supervisor. She alleged, in part,  that  she  was  ordered  to
perform work in direct contravention to medical treatment restrictions
and unfairly placed on the WMP, denied medical referral,  and  falsely
accused  of  violating  limited  driving  privileges.  None   of   her
allegations were substantiated.

On 30  July  1997,  she  provided  a  rebuttal,  in  response  to  the
aforementioned LOR she  received  on  25  July  1997,  presumably  for
unsatisfactory progress in the WMP.   She  again  asked  that  she  be
medically deferred.

On 31 July 1997, her commander notified her that  he  was  considering
vacating the suspended forfeiture  because  she  failed  to  obey  his
lawful order by driving in violation of the conditions of her  limited
driving privileges on or about 11 July 1997 [to the NCO Club].   After
consulting counsel, applicant  requested  a  personal  appearance  and
presented written materials.  On 5 August 1997,  the  commander  found
her  guilty  of  the  alleged  offense  and  vacated   the   suspended
forfeiture. A total driving ban was also reinstated on her. A 4 August
1997 letter from the applicant to the  commander  rebuts  an  LOR  she
apparently also received on 31 July 1997 for the driving violation.

On 11 August 1997, an MEB convened  and  diagnosed  the  applicant  as
having pain disorder associated with both psychological factors and  a
general medical condition; degree of impairment  for  civilian  social
and industrial adaptability was definite. Recommendation was that  her
case be referred to a Physical Evaluation Board (PEB).  The  applicant
provided a letter of exception to the MEB.

An Informal PEB convened on 6 September 1997. The diagnosis  was  pain
disorder associated  with  psychological  factors  affecting  physical
conditioning with mild social and industrial adaptability  impairment.
She was also found to  suffer  from  a  personality  disorder  and  an
alcohol  abuse  problem  which  significantly  contributed   to   pain
disorder;  however,  both  conditions  were  neither  compensable  nor
ratable. Recommendation was discharge with severance pay at  10%.  The
applicant disagreed with the findings on 18 September 1997.

A Formal PEB (FPEB) convened on 8 October 1997 and  reached  the  same
diagnoses and recommendation as the PEB.  The applicant disagreed with
the findings and recommendations and provided a rebuttal on 16 October
1997.

On 17 November 1997, the Office of the  Secretary  of  the  Air  Force
Personnel Council (SAFPC), directed that the applicant  be  discharged
with severance pay at 10%.

On  21  November  1997,  the  SAF  found  the  applicant  had   served
satisfactorily in the higher grade of staff sergeant.  This meant that
she was entitled to 10% disability severance pay based on the grade of
staff sergeant, rather than senior airman.

According to DOD and AF IG documents, the applicant filed a  complaint
with the 12th AF IG on 10 December 1997, alleging unfair treatment  by
the  43rd  ECS  commander,  first  sergeant,  and   squadron   section
commander.  She  outlined  several  instances  of   purported   unfair
treatment and harassment by the subjects over an  extended  period  of
time, beginning with a commander-directed mental health evaluation  in
February 1996. The alleged  unfair  treatment  continued  through  the
period following a driving under the influence  (DUI)  charge  against
the applicant in April 1997, and included actions taken during medical
separation proceedings and WMP  actions.  On  12  December  1997,  the
applicant was investigated  for  allegedly  becoming  belligerent  and
pushing a female lieutenant (the section  commander).  On  15 December
1997, the applicant filed a second  complaint  with  the  12th  AF  IG
alleging the 43rd ECS commander, first sergeant, and squadron  section
commander had had taken unfavorable personnel actions in reprisal  for
her initial  protected  disclosure,  the  10 December  1997  complaint
against the same three individuals. On 17 December 1997,  pursuant  to
the 12th AF IG’s relaying the applicant’s threat to kill  herself  and
the staff judge advocate’s recommendation that she be apprehended, the
security police escorted the applicant to a mental health  evaluation.
She was given an LOR because of the assault and reassigned because  of
her suicide threat. The investigation into applicant’s allegations was
initially  opened  on  18 December  1997.  Apparently,  based  on  the
recommendation of the DOD IG, 12th AF terminated the investigation  on
6 January 1998.

Applicant was honorably discharged with 10% disability  severance  pay
in the grade of senior airman on 8 January 1998. She had 12  years,  7
months and 6 days of  active  duty.  She  was  issued  a  reenlistment
eligibility (RE) code of “2Q.”

In response to applicant’s 16 December 1997 complaint to the DOD IG, a
Military Whistleblower Reprisal Preliminary Analysis was conducted  on
9 April 1998. The DOD IG concluded there was no clear indication  that
any  personnel  actions  were  connected  to  or  resulted  from   the
complainant’s protected communications. Rather, the complainant logged
her complaints with the three IGs after she had  gotten  herself  into
difficulties with her chain of command, independent of  her  protected
communications. As a  result,  her  case  was  closed  in  preliminary
analysis on 13 April 1998.  The  investigation  into  the  applicant’s
complaint was subsequently reassigned to the 12 AF/IG and reopened  on
24 April 1998. The investigation was concluded on 26 June  1998,  with
none of the applicant’s 12 allegations being substantiated.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, BCMR & SSB Section, HQ AFPC/DPPPA, reviewed this appeal and
recommended that the Board hold its decision in abeyance until  copies
of the two IG reports and the reprisal  complaint  findings  could  be
obtained and DPPPA given an opportunity to comment on these documents.
Otherwise, denial is recommended based on the evidence  provided.  The
applicant is attempting to relate  the  ratings  on  the  EPR  to  the
markings on  the  performance  feedback  worksheet  (PFW).  The  Chief
explains why she believes this is an inappropriate comparison  and  is
inconsistent with the Enlisted Evaluation System (EES). To remove  the
EPR from the applicant’s record would be unfair to all the other  NCOs
who did not drink and drive, who  conducted  themselves  appropriately
both on and off duty, and  effectively  performed  their  duties.  The
Chief  concludes  that  removing  the  contested  report  would   make
applicant’s records inaccurate.  Applicant has not  substantiated  the
contested report was not rendered in  good  faith  by  all  evaluators
based  on  knowledge  available  at  the  time.  Statements  from  the
contested EPR’s evaluators  are  conspicuously  absent.  None  of  the
testimonials  submitted  state  the  evaluators  rated  the  applicant
inaccurately.  Denial is recommended.

A copy of the complete Air Force evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 20 July 1998 for review and comment within 30  days.   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 probable error or injustice. After a thorough  review
of the evidence of record  and  applicant’s  submission,  we  are  not
persuaded that the referral EPR should be removed  from  her  records.
The applicant’s allegations  of  reprisal,  mistreatment,  harassment,
mental abuse  and  disregard  for  her  health  and  safety  were  not
substantiated in any of the IG investigations. The  DOD  IG  concluded
there  was  no  clear  indication  that  any  personnel  actions  were
connected to or resulted from her  protected  communications;  rather,
she  logged  her  complaints  after  she  had  gotten   herself   into
difficulties with her chain of command, independent of  her  protected
communications. The 12 AF/IG’s investigation concluded  in  June  1998
that her 12 allegations were without  merit.  The  available  evidence
does  not  persuade  us  that  the  contested  EPR  is  an  inaccurate
assessment of her performance or an act of  reprisal.   The  applicant
has failed to sustain her burden of having suffered either an error or
an injustice. In view of the above and absent persuasive  evidence  to
the contrary, we find no compelling basis to  recommend  granting  the
relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of probable  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  this  application  in
Executive Session on 11 February 1999, under the provisions of AFI 36-
2603:

                  Ms. Patricia J. Zarodkiewicz, Panel Chair
                  Mr. William H. Anderson, Member
                  Mr. Joseph A. Roj, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 28 Apr 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPA, dated 10 Jul 98.
   Exhibit D.  Letter, AFBCMR, dated 20 Jul 98.




                                   PATRICIA J. ZARODKIEWICZ
                                   Panel Chair