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
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