RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-00731
               INDEX NUMBER:  131.09  107.00  145.02
      XXXXXXXXXXXXXX   COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

___________________________________________________________________


APPLICANT REQUESTS THAT:

The Enlisted Performance Report (EPR)  rendered  on  him  for  the
period closing 15 Apr 96 be voided and removed from his records.

The April 1999 award date  for  the  Defense  Meritorious  Service
Medal (DMSM), First Oak Leaf  Cluster,  he  was  awarded  for  the
period March 1992 through June 1996 be changed to a date making it
eligible for consideration, if necessary, beginning with Promotion
Cycle 97E8.

He be promoted to the grade of senior master sergeant (SMSgt) with
a date of rank (DOR) and effective date of at least March 1999.

If the Board declines to promote him directly  to  SMSgt,  in  the
alternative,  he  receive  supplemental  promotion   consideration
beginning with Cycle 97E8 with the EPR closing 15 Apr  96  removed
from his record and inclusion of the DMSM he was  awarded  in  Apr
99.

He receive back special duty assignment pay (SDAP) for the  period
10 Feb 97 through 13 May 99.

He be issued an appropriate end of tour  award  to  recognize  his
service during the period July 1996 to May 1999.

___________________________________________________________________


APPLICANT CONTENDS THAT:

Applicant provides a twenty-five-page submission with attachments.
 Applicant discusses the circumstances of his case and states that
he  was  reprised  against  for   fulfilling   his   duty   as   a
noncommissioned  officer  to  report  fraud,  waste,  and   abuse.
Applicant provides in-depth discussion on the consequences of  the
reprisal action taken against  him.   He  also  discusses  why  he
should receive the relief he has requested.

The contested EPR should be removed from his records  because  the
Defense Threat Reduction  Agency  (DTRA)  Inspector  General  (IG)
concluded that it  was  an  adverse  EPR  issued  in  reprisal  to
protected communications.  The voiding of the EPR  does  not  fill
the gap left in its place.  As the concluding EPR of  a  four-year
special duty tour that ended with the award of the DMSM, it  would
seem that it should have been a “firewall” EPR with a senior rater
indorsement.  The EPR that should be in his records would have had
a  very  positive  impact  on  his  promotion  opportunities   and
subsequent EPRs.  His 1996 performance  report  will  be  replaced
with a piece of paper saying, “removed by order of  the  secretary
of the Air Force.”  How can that piece of paper, in  the  interest
of justice, reflect what  would  have  been  in  its  place.   The
applicant also believes that the EPRs he  received  subsequent  to
the 1996 adverse report were affected by it.  He  believes  it  is
much easier to mark a block down when a  prior  reference  concurs
with it.  He does not believe that the voiding and removal of  the
1996 EPR can have any “positive effect.”

The DMSM (1OLC) he received was the result  of  corrective  action
taken after the DTRA IG recommended he receive an appropriate  end
of tour award.  However, the corrective action failed  to  address
the timeliness of the award.  The original decoration  would  have
been issued in 1996.  The untimeliness of the award may have  been
one factor in his not receiving and end of  tour  award  in  1999.
The decoration also was not added to his total score for promotion
consideration until Promotion Cycle 01E8.

He should be promoted directly to SMSgt because  the  supplemental
selection board  process  would  conflict  with  the  interest  of
justice in his case.  He indicates that this a more complex  issue
than it would have been if his case had been resolved  “within  90
days of the receipt of the allegation of reprisal.”  Too much time
passed with the adverse EPR in his  record,  placing  a  cloud  of
being a “whistleblower” over him.  Even a back promotion could not
fully restore his career.  If he had been  promoted  to  SMSgt  in
1999,  he  would  have  been  assigned  to  positions  of   higher
responsibility in 2000  and  beyond,  thus  affecting  performance
reports that would later be used  by  the  chief  master  sergeant
(CMSgt) evaluation boards.  He does not believe  the  supplemental
promotion process  can  provide  him  fair  consideration  because
opportunities were lost and history cannot be rewritten.

He  has  spent  almost  three   years   attempting   to   “exhaust
administrative remedies” to resolve the issue of back  SDAP.   All
efforts to resolve this issue have failed.  He was advised by  his
servicing military personnel flight (MPF) to apply to  the  AFBCMR
for resolution.

He was denied an end of tour award for the assignment  immediately
following the verification of reprisal  and  cancellation  of  his
special duty assignment.   Two  factors  seem  to  have  collided.
First, he received the DMSM for his assignment ending in  1996  as
corrective action in 1999.  Second, his 1996 DOD IG complaint  was
viewed by some at his new assignment as “too much excess  baggage”
to allow any award.

The applicant’s  complete  submission,  with  attachments,  is  at
Exhibit A.

___________________________________________________________________


STATEMENT OF FACTS:

The applicant is presently serving on active duty in the grade  of
master sergeant.  He has an  established  date  of  separation  of
12 Oct 02.  A resume of his last ten EPRs follows:

      Closeout Date                     Overall Rating

        29 Oct 93                            5
        31 May 94                            5
        15 Apr 95                            5
       *15 Apr 96                            5
        15 Apr 97                            5
        15 Apr 98                            5
        15 Dec 98                            5
        15 Dec 99                            5
        15 Dec 00                            5
        15 Jun 01                            5

*  Contested Report.

According to  records  provided  by  the  applicant  and  the  DOD
Inspector General,  on  23  April  1996,  the  applicant  filed  a
complaint with the DoD IG alleging reprisal for a Fraud Waste  and
Abuse complaint he had  made  against  members  of  his  chain  of
command earlier.  The applicant alleged that the following actions
were taken against him:

        1.  Cancellation of his projected  assignment  to  the  On
Site Inspection Agency (OSIA) Magna Operations Division, a Special
Duty Assignment.

        2.  Banning him from further assignment to any OSIA unit.

        3.  Manipulation of  his  personnel  records  to  indicate
“member no longer qualified to remain within OSIA.”

        4.  Recommending that he receive no  decoration  for  four
years and three months of service at the special duty unit he  was
assigned to.

        5.  Denial of a 96-hour pass  for  reenlistment  that  his
commander had previously stated he would receive.

        6.  Writing his EPR that closed out 15 Apr 96  to  reflect
as poorly on him as possible.

The applicant’s case was referred to the OSIA IG, now  called  the
Defense Threat Reduction Agency (DTRA),  for  investigation.   The
DTRA IG concluded that the applicant was reprised against based on
the following adverse personnel actions:

        1.  Denial of an end of tour award.

        2.  An adverse EPR for the period 16 Apr 95 through 15 Apr
96.

         3.  Cancellation  of  his  assignment  to  the  On   Site
Inspection Agency (OSIA) Magna Operations Division.

The DTRA IG  made  the  following  recommendations  affecting  the
applicant based on their findings:

1.  The applicant’s EPR closing out 15 Apr 96 be removed from  the
applicant's permanent military record.

        2.  The applicant’s assignment to the DTRA Magna  Division
be restored.

        3.  DTRA issue the applicant an appropriate  end  of  tour
award recognizing the applicant’s service for the period from 1993
to 1996.

The DTRA IG also noted that the time expended  to  complete  their
Report of Investigation was unacceptably too long.

Although the DTRA IG recommended that the applicant’s special duty
assignment be restored, he served three years  in  an  intervening
assignment.  On 4 Apr 00, the applicant filed a complaint  through
the Defense Hotline alleging  reprisal  for  his  actions  in  the
previously substantiated  IG  case.   The  applicant  alleged  the
following:

        1.  He was denied an end of tour award for the period from
July 1996 through April 1999.

        2.  Adverse EPRs during the period from July 1996  through
April 1999.

On 21  Apr  00,  the  applicant  provided  justification  for  his
complaint being filed more than 60 days after he became  aware  of
the reprisal action.  This was required because his complaint  was
filed more than 60 days after the closeout dates of the EPRs.   On
24 May 00 the applicant  was  advised  by  the  DOD  IG  that  his
complaint regarding his EPRs was not considered  timely  and  that
there was no clear evidence to support reprisal regarding his  not
receiving an end of tour award.   On  19  Sep  00,  the  applicant
responded  to  DOD  IG  indicating  his  disagreement  with  their
findings and requested a reexamination of  his  complaint.   After
receiving no response to his  19  Sep  00  letter,  the  applicant
again, on 5 Apr 2001 wrote DOD IG requesting a response to his  19
Sep 00 letter.  On 10 Apr 01, DOD IG responded  to  applicant  and
indicated that after thoroughly reviewing the applicant’s reprisal
complaint and supporting documents, they  again  determined  there
was  not  sufficient  evidence   of   reprisal   to   warrant   an
investigation.

___________________________________________________________________


AIR FORCE EVALUATION:

AFPC/DPPPE recommends that applicant’s EPR closing 15  Apr  96  be
voided and removed from his records.  The applicant  has  provided
substantiated evidence that his EPR closing 15 Apr 96 was used  as
a tool for reprisal (IG, DTRA Memorandum, dated 4 Feb 99).

The complete evaluation is at Exhibit C.

AFPC/DPPPR  addressed  the  decoration  issues.   They   recommend
disapproval of the applicant’s request  to  change  the  effective
date of his DMSM for the period Mar 92 through Jun 96 and also  of
his request for award of an end of tour medal for  his  assignment
for the period Jul 96 through Apr 99.

Applicant’s claim that  reprisal  actions  in  the  form  of  EPRs
rendered and decorations not awarded were taken by his supervisors
and commanders was verified.  The applicant’s DMSM  could  not  be
considered by the 97E8 promotion board because it was not  in  his
records.  However, Air Force guidance  requires  a  recommendation
for a decoration to be submitted within  two  years  of  the  act,
accomplishment, or service, performed, and  awarded  within  three
years.

A recommendation package for a  third  DMSM  was  written  on  the
applicant, but the appropriate officials in his  chain  would  not
endorse the recommendation.

The applicant was recommended for and awarded  the  DMSM  for  the
period Mar 92 through Jun 96 within the time limits  specified  by
AFI 36-2803.  An end of tour award is not automatic.  It  was  the
prerogative of his chain of command not  to  endorse  the  package
recommending him for a third DMSM.

The complete evaluation is at Exhibit D.

AFPC/DPPPWB  recommends  the  applicant’s   request   for   direct
promotion to SMSgt be denied.  If the Board removes the  contested
EPR,  they  recommend   that   the   Board   direct   supplemental
consideration beginning with the 97E8 cycle.  They do not  support
supplemental consideration based on a change to his existing  DMSM
award date or based on the award of a new decoration.

The contested  EPR  closing  15  Apr  96  has  been  used  in  the
applicant’s promotion consideration to SMSgt  beginning  with  the
97E8 cycle.  The DMSM has been used in the promotion consideration
beginning with the 00E8 cycle.  The applicant was  ineligible  for
the 99E8 cycle because he declined to test, which is an  automatic
ineligible for promotion condition.

Although the applicant states this decoration was  not  considered
until the 01E8 cycle, it was in  fact,  considered  for  the  00E8
cycle.

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

AFPC/DPSFM recommends that the applicant be paid ADAP at the  rate
of $110 per month for the period of 10 Feb 97 through 13  May  99.
If the applicant’s assignment had not been cancelled as an act  of
reprisal for a protected communication, the applicant’s SDAP would
have continued uninterrupted.  The applicant did not  serve  in  a
position or  perform  duties  that  authorized  him  SDAP  in  the
subsequent assignment  to  the  one  cancelled  due  to  reprisal.
Nonetheless,  it  was  substantiated  that  the   assignment   was
cancelled as an act of reprisal.

The complete evaluation is at Exhibit F.

___________________________________________________________________


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force advisory opinions.

He applicant acknowledges the recommendation to void his 15 Apr 96
EPR.  He notes, however, that the action is six years too late for
“full and effective relief.”

The applicant indicates that he remains a  master  sergeant  today
because the IG did not expeditiously investigate  the  allegations
he made.  If his request for a direct promotion is not granted, he
requests that the Board provide an explanation in its  “Record  of
Proceedings” as to exactly how the supplemental promotion  process
will “provide full and effective relief” in his case.

In regards to DPPPR’s recommended disapproval of  his  request  to
change the effective date of his DMSM and disapproval of an end of
tour award for  the  period  Jul  96  through  Apr  99,  applicant
explains why he made this request.  The applicant  indicates  that
Air Force guidance does not address  the  timeliness  of  military
awards and decorations presented as corrective action in  reprisal
cases.  Although AFPC/DPPPR indicates that they may not usurp  the
chain of command’s decision as to his end-of tour award, the Board
has the authority to do so.  He ask the Board to carefully  review
the evidence he has presented.  He does not believe the Board will
concur  that  a  reprisal  case  pending  adjudication  should  be
considered “too much excess baggage" and  used  as  a  reason  for
denial of an end -of-tour award.

Applicant indicates that AFPC/DPPPWB does not address  whether  or
not the supplemental process would be in the interest  of  justice
or provide fair consideration in competition with his  peers,  but
simply states there are no provisions for an  automatic  promotion
as he requests.  He believes the provision for a direct  promotion
is  contained  in  AFI  36-2603.   DOD  Directive  7050.6  defines
“Corrective Action” as any action deemed  necessary  to  make  the
complainant whole.

The applicant points out that the delay in the investigation  that
destroyed his career saved the career of  the  colonel  guilty  of
reprisal by allowing him time to  retire  before  any  action  was
taken.  He requests expedited  consideration  of  his  case.   His
scheduled retirement date is 1 Oct 02.  In view of the  fact  that
he is currently limited in assignment  possibilities  due  to  his
high year of tenure (Sep 03) as a master sergeant, he has  elected
to retire.  He believes it would be in the best  interest  of  the
Air Force if he were notified of the Board’s decision prior to his
retirement.

Applicant’s complete response is at Exhibit H.

___________________________________________________________________


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 error or injustice.  The Defense Threat Reduction
Agency Inspector General substantiated that the applicant was  the
victim of reprisal and made specific  recommendations  to  provide
him relief.  The DTRA IG also noted  that  the  time  expended  to
complete the Report of Investigation was unacceptably too long and
effectively precluded the Director, DTRA (or the Director, On-site
Inspection Agency prior to  1  Oct  98)  from  exercising  greater
latitude of corrective and disciplinary action that may have  been
warranted in this case.   As  such,  we  believe  that,  with  the
exception of direct  promotion  to  the  grade  of  senior  master
sergeant, the relief requested by the applicant is warranted.

        a.  In regard to the DMSM, First  Oak  Leaf  Cluster,  the
applicant was eventually awarded, we disagree with the position of
the Air Force that this award should not  be  considered  for  the
earlier promotion cycles starting with cycle 97E8.  This award was
issued as part of  the  remedy  for  the  reprisal  the  applicant
suffered.  It  falls  short,  however,  because  it  deprives  the
applicant of the same benefits  he  would  have  enjoyed  had  the
decoration been awarded under  normal  conditions.   Although  the
decoration may have met the time requirements specified in AFI 36-
2803, there is substantial doubt as to whether it would have  been
so delayed under  normal  circumstances.   We  believe  any  doubt
should be resolved in the applicant’s favor.  Since the  contested
award is a Department of Defense (DOD) award, the Board lacks  the
authority to change the issue date; however,  given  the  closeout
period  of  the  award,  we  believe  that  the  award  should  be
considered for promotion starting with cycle 97E8.

        b.  We concur with  the  opinions  and  recommendation  of
AFPC/DPSFM on the issue of Special Duty Assignment Pay (SDAP)  and
agree that the applicant should be paid SDAP for the period 10 Feb
97 through 13 May 99.

        c.  Regarding the lack of an end of  tour  award  for  the
period from Jul 96 through May 99, the letter of support  provided
by  the  applicant’s  former  Operations  Superintendent  and  the
letters of commendation  received  by  the  applicant  during  the
period in question raises doubt as to whether the applicant should
have received a decoration during this period.  Again, we  believe
that the applicant should receive the benefit  of  the  doubt  and
receive some measure of recognition.  As  previously  stated,  the
Board lacks the authority to award a DOD medal, but believes  that
an appropriate level Air Force award should be granted.   In  that
regard, we believe that an Air  Force  Meritorious  Service  Medal
would be appropriate.

4.  Insufficient  relevant  evidence   has   been   presented   to
demonstrate the existence of error  or  injustice  warranting  his
promotion to senior master  sergeant  through  the  correction  of
records process.   While  we  note  that  the  processing  of  his
complaints through  the  appropriate  channels  were  lengthy,  we
believe that our above recommended corrections provides  him  with
thorough and fitting relief.  Promotion to  the  grade  of  senior
master sergeant is very competitive and many factors are carefully
assessed in scoring an individual record.  We believe that a  duly
constituted selection board is in the most  advantageous  position
to make this determination and its prerogative  to  do  so  should
only be usurped under extraordinary circumstances.   In  addition,
we believe the applicant, with the above  recommended  corrections
to  his  record,  can  receive  fair   and   equitable   promotion
consideration via the  supplemental  promotion  process.   In  the
absence of  clear-cut  evidence  that  the  applicant’s  corrected
record  would  have  scored  sufficiently  high  to  warrant   his
selection for promotion to the grade of senior master sergeant, we
do not recommend favorable action on  his  request  for  a  direct
promotion.

___________________________________________________________________
_

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force
relating to APPLICANT, be corrected to show that:

        a.  The Enlisted Performance  Report  for  the  period  16
April 1995 through 15 April 1996 be declared void and removed from
his records.

        b.  He was authorized Special Duty Assignment  Pay  during
the period 10 February 1997 to 13 May 1999.

        c.  He was awarded the Air Force Meritorious Service Medal
for the period 30 July 1996 through 12 May  1999  for  meritorious
service while assigned to the 566th Operations  Support  Squadron,
Buckley Air National Guard Base, Colorado.

It  is  further  recommended  that  he  be  provided  supplemental
consideration for promotion to the grade of senior master sergeant
(E-9) beginning with cycle 97E7  with  inclusion  of  the  Defense
Meritorious Service Medal (DMSM), First Oak Leaf  Cluster  (1OLC),
awarded for the period March 1992 to June 1996.

If  selected  for  promotion  to   senior   master   sergeant   by
supplemental  consideration,  he  be   provided   any   additional
supplemental consideration required as a result of that selection.

If AFPC discovers any adverse  factors  during  or  subsequent  to
supplemental  consideration  that  are  separate  and  apart,  and
unrelated to the issues involved in this  application  that  would
have rendered the applicant ineligible  for  the  promotion,  such
information will be documented and presented to the  Board  for  a
final determination on the  individual’s  qualifications  for  the
promotion.

If supplemental promotion consideration results in  the  selection
for  promotion  to  the  higher  grade,  immediately  after   such
promotion the records shall be  corrected  to  show  that  he  was
promoted to the higher grade on the date of  rank  established  by
the supplemental promotion and that he is  entitled  to  all  pay,
allowances, and benefits of such grade as of that date.

___________________________________________________________________
_

The following members of the Board considered  Docket  Number  02-
00731 in  Executive  Session  on  13  September  2002,  under  the
provisions of AFI 36-2603:

      Mr. Roscoe Hinton, Jr., Panel Chair
      Mr. John E.B. Smith, Member
      Ms. Brenda L. Romine, Member

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

     Exhibit A.  DD Form 149, dated 21 Feb 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPPE, dated 29 Mar 02.
     Exhibit D.  Memorandum, AFPC/DPPPR, dated 22 Apr 02
                 w/atchs.
     Exhibit E.  Memorandum, AFPC/DPPPWB, dated 24 Apr 02
                 w/atch.
     Exhibit F.  Memorandum, AFPC/DPSFM, dated 3 Jun 02.
     Exhibit G.  Letter, SAF/MIBR, dated 14 Jun 02.
     Exhibit H.  Letter, Applicant, dated 14 Jul 02.




                                   ROSCOE HINTON, JR.
                                   Panel Chair

AFBCMR 02-00731


MEMORANDUM FOR THE CHIEF OF STAFF


      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of the Air
Force relating to XXXXXXXXXX, XXX-XX-XXXX, be corrected to show
that:

              a.  The Enlisted Performance Report rendered for the
period 16 April 1995 through 15 April 1996 be, and hereby is,
declared void and removed from his records.

              b.  He was authorized Special Duty Assignment Pay
during the period 10 February 1997 to 13 May 1999.

              c.  He was awarded the Meritorious Service Medal for
the period 30 July 1996 through 12 May 1999 for meritorious service
while assigned to the 566th Operations Support Squadron, Buckley
Air National Guard Base, Colorado.

              d.  He was promoted to the grade of senior master
sergeant  (E-8) effective, and with date of rank (DOR) of, 1
September 1998.

              e.  He was retired effective 1 October 2002 in the
grade of senior master sergeant  (E-8) rather than master sergeant
(E-7).




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency

AFBCMR 02-00731


MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                       CORRECTION OF MILITARY RECORDS (AFBCMR)


SUBJECT:  XXXXXXXXXXXX, XXX-XX-XXXX


      It has been substantiated that the applicant was the victim
of reprisal for protected communications under the military
whistleblower program.  As such, the Board has recommended broad
relief for the applicant with which I agree.  However, I believe
given the circumstances of the applicant’s case, that in order to
make him whole, the additional relief of direct promotion to senior
master sergeant is warranted. Therefore, I direct that the
applicant be made whole by promoting him to the grade of senior
master sergeant effective, and with date of rank (DOR) of, 1
September 1998.



            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency