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AF | BCMR | CY2006 | BC-2006-01446
Original file (BC-2006-01446.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01446
            INDEX CODE:  111.02
      XXXXXXXXXXXXXXX  COUNSEL:  NONE
            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  13 NOVEMBER 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Enlisted Performance Report (EPR)  rendered  for  the  period  ending  1
September 2004 be removed from his records.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He suffered reprisal  because  he  exercised  his  right  by  filing  an  IG
complaint against a senior leader within his unit.

In support of his request, applicant provides copies of his last five  EPRs,
letters of support, a copy  of  the  IG  complaint  request  and  associated
correspondence and a copy of  his  application  to  the  Evaluation  Reports
Appeal Board (ERAB).

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

_________________________________________________________________

STATEMENT OF FACTS:

The  Military  Personnel  Database  (MilPDS)  indicates  the  applicant   is
currently serving on active duty and has been progressively promoted to  the
grade of senior master sergeant (E-8), effective and with a date of  rank  1
June 2005.

On 20 February 2004, a similar appeal by the applicant  was  considered  and
denied by the ERAB.  However, the  ERAB  changed  the  performance  feedback
section to read  "performance  feedback  was  not  accomplished  during  the
rating period only verbal feedback throughout the rating period."

The following is a resume of his EPR profile:

      PERIOD ENDING          PROMOTION RECOMMENDATION

    07 Mar 02                     5
    07 Mar 03                     5
    07 Mar 04                     5
    01 Sep 04                     5(Contested Report)
    01 Sep 05                     5

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPP recommends denial.  DPPP states the applicant did not provide  any
evidence to substantiate reprisal.  The applicant has not substantiated  the
contested report was not rendered in good faith by all evaluators  based  on
knowledge available at that time.  DPPP advises that it appears  the  report
was accomplished in direct  accordance  with  applicable  regulations.   The
AFPC/DPPP complete evaluation is at Exhibit C.

AFPC/JA recommends denial.  JA advises that in order to  establish  a  prima
facie whistleblower case, there must be more than the mere  existence  of  a
"retaliatory personnel action" and a "protected communication."  There  must
actually be a "protected  communication"  predating  and  which  potentially
could cause a "retaliatory" personnel  action.   While  the  applicant's  IG
compliant is certainly among the types of communication meriting  protection
under the Military  Whistleblowers  Protection  Act,  JA  states  they  were
unable to locate evidence in his records that  the  applicant  suffered  any
form of retaliation as a consequence of filing an IG complaint.   JA  states
that AFPC/DPP previously requested the applicant forward the IG's report  of
investigation; however, has failed to respond with  the  IG  findings.   The
AFPC/JA complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was sent to the applicant  on  18  August
2006 for review and comment.  As of this date, this office has  received  no
response.

_________________________________________________________________

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 error or injustice.  We have noted the documents provided  with
the applicant’s submission.  However, they do not, in our  opinion,  support
a finding that the evaluators were unable to render unbiased evaluations  of
the applicant’s performance or that the  ratings  on  the  contested  report
were based on factors other than applicant’s  duty  performance  during  the
contested  rating  period.   The  applicant  asserts  he  suffered  reprisal
because he exercised his right by filing  an  Inspector  General  complaint;
however, no supporting documentation has been submitted.   In  view  of  the
foregoing, and in the absence of evidence to the contrary, we find no  basis
upon which to recommend granting the relief sought in this application.

_________________________________________________________________

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 3 October 2006 under the provisions of AFI 36-2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Mr. Elwood C. Lewis, Member
                 Mr. Todd L. Schafer, Member

     Exhibit A.  DD Form 149, dated 5 May 06, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPP, dated 7 Aug 06.
     Exhibit D.  Letter, AFPC/JA, dated 11 Aug 06
     Exhibit E.  Letter, SAF/MRBR, dated 18 Aug 06.





                                  THOMAS S. MARKIEWICZ
                                  Chair

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