RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03142
            INDEX NUMBER:  110.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No


MANDATORY CASE COMPLETION DATE:  13 Apr 07


_________________________________________________________________

APPLICANT REQUESTS THAT:

The enlisted performance report (EPR) rendered on him for  the  period
20 Jul 01 to 19 Jul 02 be upgraded from an overall rating  of  “2”  to
“4.”

His Reenlistment Eligibility (RE) code of “4J,” “Entered into Phase  I
of the Air Force Weight Program, or the unit  commander  has  declared
the airman ineligible  to  reenlist  for  a  period  of  Phase  II  or
probation,” be changed to one which will allow his  reentry  into  the
Air Force.

He be given full military retirement and benefits.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He refused to follow an unlawful order that would have endangered an F-
117 pilot’s life and was threatened by his unit commander for refusing
to do so.

He received a “2” EPR and was denied reenlistment.

His problems started in Sep 01 when  he  wrote  the  base  commander’s
action  hot  line.   The  letter  was  never  published  in  the  base
newspaper.  The applicant provides  the  text  of  the  letter,  which
addresses the  lack  of  work  for  airmen  assigned  to  him  in  the
Hydraulics Shop.

He received a response, which was not true.  He was also later  called
into the squadron commander’s office and fired as the Hydraulics  Shop
Chief.

He signed the Whistleblowers Right document dated 9 Nov 01.  He  notes
on the AF Form 418, “Selective  Reenlistment  Program  Consideration,”
prepared on him his supervisor states he had counseled him.   However,
he questions why any counseling he received was not put on an  AF  IMT
174, “Record of Individual Counseling.”  If he had been  counseled  as
indicated, he would have rebutted it.

In support of his appeal, the applicant submits a copy of an    e-mail
sent to his Senator, the response he received to his “hotline letter,”
a copy of the AF Form 418 denying him reenlistment, documents  related
to his efforts to appeal the  AF  Form  418  decision,  and  documents
related  to  a  complaint  filed  with  the  inspector  general  (IG),
character and performance references, and a copy of the  EPR  rendered
on him for the period immediately preceding the contested EPR..

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 13 Apr  88.   He
was promoted up to the grade of staff sergeant (SSgt) (E-5).   In  Feb
01, while he was assigned as NCOIC of the Hydraulics System Shop,  the
work was contracted out, but manning was  not  reduced,  leaving  shop
personnel underemployed.  The applicant filed  several  complaints  on
the issue, including one with the Wing  inspector  general  (IG).   He
also met repeatedly with his squadron commander on the  issue.   Based
on the applicant’s overall rating of “5” on his EPR closing 19 Jul 01,
it appears, regardless of the complaints, he was well regarded by  his
unit leadership.  However,  on  27  Aug  01,  the  squadron  commander
reported to the Wing IG he was considering removing the  applicant  as
NCOIC of the Hydraulics shop because he  was  inciting  his  personnel
over the manning issue and continuing to complain about it outside the
rating chain.

On 6 Sep 01, the applicant  made  a  written  complaint  to  the  Wing
commander’s action hot line regarding  the  over-manning  and  reduced
training opportunities in the shop.   On  13  Sep  01,  the  applicant
received a reply.  He submitted a rebuttal on 17 Sep 01.   On  18  Sep
01, he and the squadron commander  met  to  discuss  the  issue.   The
commander directed the  applicant  to  support  the  programs  already
undertaken to remedy the situation and to give them time to work.  The
applicant was fired as NCOIC of the Hydraulics shop shortly after  the
meeting and was  assigned  to  temporary  duty  with  the  Operational
Support Squadron Data Integrity Team.  The applicant was still  to  be
rated by his original supervisor.  According to the  applicant,  after
being fired, he filed a complaint with the Wing IG  alleging  reprisal
by his squadron commander.  On 18 Oct 01, he filed his complaint  with
the major command (MAJCOM) IG.  He was later contacted  and  asked  to
sign the “Whistleblower Rights Notice,” which he signed on 9 Nov 01.

On 1 Feb 02,  the  applicant’s  assigned  official  rater  provided  a
performance feedback worksheet to him,  which  was  positive  with  no
areas identified as needing significant improvement.  On  26  Feb  02,
the applicant made another written complaint to the squadron commander
over how the manning problems in his former shop had been handled.  On
25 Mar 02, his squadron commander issued him a LOR for addressing  the
Wing commander directly on the issue.

On  13  May,  the  Wing  IG  appointed  an  investigating  officer  to
investigate  the  applicant’s  allegations.   The  investigation   was
delayed over six months due to the efforts of the Wing, MAJCOM, and HQ
Air Force IGs to obtain permission from the DoD IG not to  investigate
the allegations.  The request was denied and the initial investigation
was concluded on 18 Jun 02.

On 20 Jun 02,  the  applicant’s  rater  advised  the  mission  support
squadron (MSS) he intended to recommend non-selection of the applicant
for reenlistment.  On 19 Jul 02, the applicant received a referral EPR
with an overall rating of “2.”  He was also marked down to the  lowest
block in on/off duty conduct and in supervision and leadership.  On 30
Jul 02, the applicant was notified of the referral EPR  and  responded
on 6 Aug 02.  On 9 Sep 02, the applicant was served with AF  Form  418
by his rater recommending  his  nonselection  for  reenlistment.   The
squadron commander concurred.  On 10 Sep 02, the  applicant  indicated
his intent  to  appeal  the  decision.   However,  no  record  of  the
completed 418 can be located.

The applicant out processed the base on 30 Oct  02  with  a  scheduled
separation date of 2 Nov 02.   According  to  the  applicant,  he  was
called back to the base on 1 Nov 02 by the MSS commander in  order  to
sign an extension to allow consideration of his appeal of  the  denial
of his reenlistment.  He was  subsequently  informed  his  appeal  was
denied.  He separated on 3 Dec 02 with a “4J” RE code.

On  12  Dec  02,  the  Wing  IG  was  informed  that   an   additional
investigation of the  allegations  made  by  the  applicant  would  be
required.  The investigation was conducted from 21 Jan 03 to     4 Feb
03.  The report was finalized on 14 Jul 03.  On 8 Jan 04, the  DOD  IG
closed the case and concluded the applicant was  reprised  against  by
his squadron commander for making a protected communication.

A summary of the applicant last 10 EPRs while on active duty follows:

Closeout Date                Overall Rating

       1 Sep 93                   4
       1 Sep 94                   5
       1 Sep 95                   5
       1 Sep 96                   5
       30 Jul 97                  4
       19 Jul 98                  5
       19 Jul 99                  4
       19 Jul 00                  4
       19 Jul 01                  5
      *19 Jul 02                  2

* Contested referral EPR

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPP recommends denial of the applicant’s request to upgrade  the
overall rating of the EPR closing 19 Jul 02.  However, they  recommend
the date of the additional rater’s comments be changed from 19 Jul  02
to 10 Aug 02.

The applicant is attempting to relate the ratings on the  EPR  to  the
markings on the performance feedback  worksheet  (PFW).   This  is  an
inappropriate  comparison  and  is  inconsistent  with  the   enlisted
evaluation system.  There is not a direct correlation between the  PFW
and the ratings on an EPR.

The applicant failed to provide support from his evaluators to upgrade
the EPR.   After  their  review  of  the  report,  they  did  note  an
administrative error.  The additional rater’s signature is  dated  the
same as the rater.  According  to  AFI  36-2406,  paragraph  3.9,  the
additional rater will sign the report  after  reviewing  the  comments
provided by the ratee or after 10 calendar days.  The additional rater
makes the comment he reviewed the referral comments  provided  by  the
applicant.   Therefore,  they  recommend  the  Board  administratively
correct the date to read 10 Aug 02.

A report of investigation substantiates  the  applicant  was  reprised
against by his commander  for  making  a  protected  communication  as
evidenced by the LOR administered to him on    25 Mar  02.   Based  on
their review of the referral comment in the EPR, they have  determined
the LOR was not used to refer the report.

The complete evaluation is at Exhibit C.

AFPC/DPPAE recommends the applicant’s RE code be changed from “4J,” to
“3K,” “Reserved for use by  HQ  AFPC  or  the  AFBCMR  when  no  other
reenlistment eligibility code applies or is appropriate.”

AFPC/DPPAE reviewed the applicant’s evidence and reviewed his records.
 They did not find any evidence the AF Form 418s were updated  in  the
Military Personnel Data System.  They also do not  find  any  evidence
the applicant’s current code of “4J” was a result of his being  placed
in the weight management program.

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

AFPC/JA recommends the LOR administered to the applicant on     25 Mar
02, the EPR rendered on him closing 19 Jul 02, and the AF Form 418  be
voided and removed from his records.  They  recommend  denial  of  his
request for  retirement  benefits,  but  recommend  he  be  given  the
opportunity to reenlist.

In  the  view  of  AFPC/JA,  the  applicant  has  established   by   a
preponderance of the evidence  he  was  the  victim  of  an  error  or
injustice warranting corrective action  by  the  Board.   The  DoD  IG
concluded the applicant was subject to  an  illegal  reprisal  by  his
commander when he was given the 25 Mar 02 LOR.  AFPC/JA concludes that
this LOR, if it exists in a body of records, should  be  removed  from
the applicant’s records.   However,  they  also  recommend  corrective
action to remedy the consequences of the LOR on the applicant.

In their discussion of the  applicant’s  EPR,  AFPC/JA  notes  in  the
normal review of the validity of an EPR, the  member  is  required  to
produce evidence from the rating chain the  report  was  invalid  when
written.  However, in this case, it is  the  top  of  the  supervisory
chain, the squadron commander, that  reprised  against  the  applicant
prior to the EPR.  There are compelling indications that, but for  the
LOR administered to the applicant, his EPR would have been  different.
They note the applicant can show  that  prior  to  the  reprisal,  his
supervisor regarded his performance in all rating  areas  satisfactory
or more than satisfactory based on the performance feedback worksheet.
 This is also supported  by  two  positive  assessments  of  his  duty
performance and strength as an NCO from supervisors from  outside  his
rating chain he worked with on a daily basis.  Further,  the  reprisal
LOR and the contact with the squadron commander fall directly  between
the feedback and the EPR.  Given the absence of any  other  documented
administrative actions against the applicant during the interim, it is
logical that the ratings reflected on the EPR  were  affected  by  the
reprisal LOR.

In reaching their conclusion, AFPC/JA notes they  are  not  suggesting
the applicant was without blame.  They note the  applicant’s  tone  in
communicating with senior leaders was brusque at times.   However,  as
no adverse or administrative action was taken against him for his tone
and brusque manner at the time, they  must  conclude  the  applicant’s
behavior did not cross the line to constitute  misconduct.   Moreover,
even if it did, it would not provide a justification for reprisal.

The effect of the reprisal against the applicant on his EPR and the AF
Form 418 is unmistakable.  In their opinion, it  is  not  possible  to
extract from either document the taint of illegal reprisal  and  leave
them in force.   In  addition  to  removing  the  documents  from  the
applicant’s records, they recommend he be offered the  opportunity  to
reenlist.  The applicant  cannot  be  granted  ,  as  requested,  full
military retirement because even if he had been allowed to reenlist in
02, he would not have completed 20 years of service until 12 Apr 08.

The complete evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
9 Feb 06 for review and comment within 30 days.  To date,  a  response
has not been received.

_________________________________________________________________

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.   We  note  that  the  DoD  Inspector
General has concluded  the  applicant  was  reprised  against  by  his
commander.  We also  agree  with  the  advisory  opinion  prepared  by
AFPC/JA and adopt its rationale as the basis for  our  conclusion  the
applicant has been the victim of  an  error  or  injustice  warranting
relief.  While we  agree  with  most  of  the  relief  recommended  by
AFPC/JA, we believe that in addition to making the applicant  eligible
for reenlistment, it would also be appropriate  to  reinstate  him  to
active duty.  Since the earliest he can qualify for  retirement  under
normal circumstances would be Apr 08, granting him retirement  through
this Board is not a viable option.  Although the  evidence  of  record
indicates the applicant had expressed his  intent  to  leave  the  Air
Force prior to reaching retirement, this decision was taken away  from
him when, as part  of  the  reprisal  actions  taken,  he  was  denied
reenlistment eligibility.  We note that at  the  time  he  was  denied
reenlistment, the applicant had over 14 years of active  service.   It
appears reasonable the  applicant  may  have  reenlisted,  given  the,
relatively,  short  amount  of  service  he  needed  to  qualify   for
retirement.  At any rate, given the total circumstances of  his  case,
we believe any doubt should be resolved in his  favor.   Further,  the
applicant has indicated he would accept reinstatement to  active  duty
if granted.  Therefore, in the interest  of  equity  and  justice,  we
recommend the applicant’s record be corrected as indicated below.

_________________________________________________________________

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 Letter of Reprimand he received,  dated  25  Mar  02,  be
declared void and removed from his records.

        b.  The Enlisted Performance Report, Air Force Form 910, rendered
for the period 20 Jul 01 to 19 Jul 02, be declared void and removed  from
his records.

         c.  The   AF   Form   418,   “Selective   Reenlistment   Program
Consideration,” initiated on him on 9 Sep 02 be declared void and removed
from his records.

        d.  He was honorably discharged on 12 May 02  and  reenlisted  in
the Regular Air Force on 13 May 02 for a period of six years.


        e.  He was not released from extended active duty on   3  Dec  02
but was continued on active duty and was  ordered  PCS  to  his  home  of
record pending further orders.

It is further directed that he be provided supplemental consideration for
promotion to the grade of technical sergeant  (E-6)  beginning  with  the
03E6 cycle.

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 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  BC-2005-
03142 in Executive Session on 14 March 2006, under the  provisions  of
AFI 36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Mr. Richard K. Hartley, Member
      Ms. Janet I. Hassan, Member

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

     Exhibit A.  DD Form 149, dated 10 Oct 05, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPP, dated 25 Jan 06.
     Exhibit D.  Memorandum, AFPC/DPPAE, dated 26 Jan 06,
     Exhibit E.  Memorandum, AFPC/JA, dated 6 Feb 06
                 w/atchs.
     Exhibit F.  Letter, SAF/MRBR, dated 9 Feb 06.



                                   RICHARD A. PETERSON
                                   Panel Chair
AFBCMR BC-2005-03142

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 XXXXXXX, XXXXXXX, be corrected to show that:

            a.  The Letter of Reprimand administered to him, dated 25 Mar
02 be, and hereby is, declared void and removed from his records.

            b.  The Enlisted Performance  Report,  Air  Force  Form  910,
rendered for the period 20 Jul 01 to  19  Jul  02,  be,  and  hereby  is,
declared void and removed from his records.

             c.  The  AF  Form  418,  “Selective   Reenlistment   Program
Consideration,” initiated on him on 9 Sep 02 be, and hereby is,  declared
void and removed from his records.

            d.  He was honorably discharged on 12 May 02  and  reenlisted
in the Regular Air Force on 13 May 02 for a period of six years.

            e.  He was not released from extended active duty on 3 Dec 02
but was continued on active duty and was  ordered  PCS  to  his  home  of
record pending further orders.


       It  is  further  directed  that  he   be   provided   supplemental
consideration for promotion to the  grade  of  technical  sergeant  (E-6)
beginning with the 03E6 cycle.

      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 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.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency