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
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