RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-02503
                                             INDEX CODE: 110.03, 111.02
            COUNSEL:


                                             HEARING DESIRED:  YES


________________________________________________________________

APPLICANT REQUESTS THAT:

1.  She be appointed a military attorney under the provisions  of  Title  10
United  States  Code  (USC)  1034,  Military  Whistleblower  Protection  Act
(MWPA), to work in conjunction with her counsel and representatives.

2.  She  be  granted  the  right  under  the  MWPA,  to  depose  and   serve
interrogatories upon adversarial  parties  to  fully  prosecute  her  claims
before the Board.

3.  The AF Form 910, Enlisted Performance Report  (EPR)  closing-out  on  24
Feb 01, be voided and removed from her records.

4.  The AF Form 910, Enlisted Performance Report  (EPR)  closing-out  on  24
Feb 03, be voided and removed from her records.

5.  The AF Form 910, Enlisted Performance Report  (EPR)  closing-out  on  24
Feb 05, be voided and removed from her records.

6.  She be progressively advanced to the grades of  technical  sergeant  (E-
6), master sergeant (E-7), and senior master sergeant  (E-8)  as  determined
by the Board with all retroactive pay and benefits.

7.  She be reimbursed in the amount of $2,800.00  for  denial  of  off  base
housing or an amount the Board deems appropriate to cover the period of  Feb
07 through 2 Sep 07.

8.  Her records be corrected to show that she was placed on medical hold  on
14 Jan 06, rather than 23 Apr 06, and receive all pay and benefits  covering
the period 14 Jan 06 through  23 Apr  06,  at  the  rank  of  senior  master
sergeant (E-8).

9.  The Board recommend that all Dobbins AFB,  officials  who  violated  DoD
Directive 7050.6,  Military  Whistleblower  Protection,  dated  23  Jun  00,
Section 4.4, be held accountable under the Uniform Code of Military  Justice
(UCMJ) to establish a 10 USC 1034 precedent.

10. The Board issue an advisory opinion to determine if  a  service  member,
protected under 10 USC 1034, who is subjected to reprisal  in  violation  of
Article 92, is legally  considered  a  crime  victim,  in  the  interest  of
justice and to ensure all Feres Doctrine Mandates (FDM) benefits  under  the
Department of Veterans Affairs (DVA) are properly issued in her behalf.

11. She be permanently medically  retired  with  a  100  percent  disability
rating rather than temporarily medically retired.

12. She be granted any and all other relief the Board and the  Secretary  of
the Air Force deem appropriate in the interest of justice and  in  her  best
interest.

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

________________________________________________________________

STATEMENT OF FACTS:

On or  about  3  Mar  01,  the  applicant  filed  a  whistleblower  reprisal
complaint.  She alleged that her rater gave her an unfavorable EPR  for  the
rating period closing-out on 24 Feb 01 in reprisal for filing  an  Inspector
General (IG) complaint, contending she was not provided  adequate  training.


Her EPR profile follows:

      PERIOD ENDING    EVALUATION

       24 Feb 99       4
      *24 Feb 01       2(Referral)
      *24 Feb 03       4
      *24 Feb 05       4

* Contested Reports.

The Secretary of the Air Force IG (SAF/IG) investigated her allegations  and
concluded that her rater gave her  an  unfavorable  EPR  in  reprisal.   The
Department  of  Defense  IG  (DOD/IG)  reviewed   the   SAF/IG   report   of
investigation, as required under 10 USC 1034, but did  not  agree  with  the
SAF/IG findings regarding the EPR.  The DOD/IG concluded  the  preponderance
of  evidence  established  the  applicant’s  lowered   performance   ratings
reflected a decline in her job performance and substandard conduct.

On 26 Jun 07, the  Informal  Physical  Evaluation  Board  (IPEB)  found  the
applicant’s  mental  health  condition   prevented   her   from   reasonably
performing duties commensurate with her office,  grade,  rank,  and  rating.
The IPEB found her unfit and recommended she be  discharged  with  severance
pay and a compensable disability rating of 10 percent.   The  applicant  did
not agree with the findings of the IPEB and requested a formal hearing.

On 20 Sep 07, the Formal Physical Evaluation Board (FPEB), found  her  unfit
due to generalized anxiety disorder, social and industrial  (S&I)  definite,
major depressive  disorder,  single  episode,  severe  S&I  definite,  panic
disorder without agoraphobia S&I  definite,  and  recommended  that  she  be
placed on the Temporary Disability Retired List (TDRL) with  a  100  percent
compensable disability rating with reevaluation in 12  months.   She  agreed
with the findings and recommendations of the FPEB and  on  24  Oct  07,  was
placed  on  the  TDRL  in  the  retired  grade  of  staff  sergeant  with  a
compensable percentage for physical disability of 100 percent.

She completed a total of 5 years,  1  month  and  15  days  of  active  duty
service.   She completed 16 years and 1 day service for basic pay.

________________________________________________________________

AIR FORCE EVALUATION:

ARPC/JA recommends relief, and states, in part;  the  applicant  suffered  a
downgraded EPR due to lack  of  training  and  lack  of  response  from  her
supervisors or chain of command.  They were aware that she raised the  issue
and admitted  that  her  training  was  deficient,  yet  did  not  take  the
necessary steps to correct the situation.

She approached an Inspector  General  (IG)  official  during  the  next  EPR
rating after 1999, and raised the issue of her lack of training.   Her  next
EPR contained substantially lower ratings than her first  EPR.   There  were
no judicial or nonjudicial proceedings against the  applicant,  but  neither
was any counseling noted.  The lack of unit documentation  is  troubling  as
any deficiencies should have been identified by then.  In light of what  she
raised to her commander, the lack of  documentation  and  the  lack  of  any
apparent remedial action, the concerns are heightened  as  to  the  lack  of
unit response.  Should the Board grant relief as  to  her  downgraded  EPRs,
the normal substitutions in personnel records would suffice.

ARPC/JA will not speculate as to which grade the applicant would  have  been
promoted had there  been  adequate  training  and  no  downgrade  after  her
protected communications.  They do not recommend  any  disciplinary  actions
be taken against squadron personnel, including the chain of  command.  There
is  no  credible  evidence  that  anyone  intentionally  targeted  her   for
retaliation.  Rather, this  appears  to  be  more  a  case  of  bureaucratic
inertia than deliberate actions.

The ARPC/JA evaluation is at Exhibit C.

AFRC/A1B recommends  denial  of  the  applicant’s  request  in  total.   A1B
states, in part, the rationale for their decision is  based  on  the  DoD/IG
decision, dated 1 Sep 04, and the findings therein,  which  invalidates  the
applicant’s  allegations.   Her  allegations  were  not  substantiated,  and
therefore, there is no resultant basis to support her request.

The AFRC/A1B evaluation, with attachment, is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The ARPC/JA recommended the Board grant appropriate relief as  she  suffered
an  injustice.   ARPC/JA  further  states  the  preponderance  of   evidence
substantiates the applicant’s claim against her chain of command of  failure
to train, and retaliation based upon protected communications.

The applicant’s concerns in not being properly trained and  her  efforts  to
seek training, resulted in  a  calculated  plan  to  transfer  her  into  an
overage position without her knowledge or  consent  and  not  in  compliance
with Air Force regulations.  The organization’s efforts to force her out  of
the squadron to an overage position in the long run was detrimental  to  the
best interests of the Air Force mission  and  to  her  mental  and  physical
health and well-being to say the least.  A continuous  series  of  placement
in overage positions unquestionably hampered her rights  to  advancement  to
the pay grades of E-6, E-7 and E-8.  Her squadron acknowledged her  training
problems and admitted the unit had not done a  good  job  of  training  her.
The actual wording used was “we were derelict”, which is again  a  violation
of the UCMJ.  More damaging than the  squadron  commander’s  admission,  was
the fact that  her  records  indicated  no  consistent  on-the-job  training
records or reasons for the omissions.   The  ARPC/JA  findings  support  her
requests for advancement to E-6, E-7, and E-8, with retroactive pay  in  the
interest of justice.

Additionally,  the  unit  showed  neither  formal  written  counseling,  nor
memorandums-for-record  to  substantiate  any  claims  of  inadequate   duty
performance, and there  is  no  feedback  documentation  to  show  her  duty
performance was inadequate.

Clearly, the findings of AFRC/JA and  that  of  the  DoD/IG  are  completely
opposite.  The facts and evidence in the  10  USC  1034  record  have  never
changed. However, it took over seven years for an Air Force legal entity  to
acknowledge  what  the  DoD/IG  refused  to   recognize.    The   delay   in
acknowledging that an error or injustice occurred, gave rise to Dobbins  Air
Force Base officials being afforded carte blanche to continue the  injustice
against the applicant.  It was the DoD/IG’s failure to act  under  the  MWPA
that ultimately injured  the  Air  Force  and  contributed  to  Dobbins  AFB
official’s  ability  to  chill  and  neutralize   her   career   advancement
opportunities.  Applying the benefit of the doubt standard,  she  should  be
at the pay grade of E-8 and afforded all pay and entitlements for each  rank
in accordance with the advancement cycles.

The FPEB found her 100 percent disabled not 30 percent, and recommended  she
be temporarily retired.  The violations in this case scream for  Article  92
relief against all respondents the Board finds responsible.  She  hopes  the
Secretary of the Air Force will involve himself as this  case  can  set  the
tone for intra-Air  Force  and  potentially  intra-military  justice  reform
under the IG Act, without having to petition for judicial review.   In  all,
with the AFPC/JA findings and the FPEB action in this  case  it  would  seem
beneficial to the Air Force to send  a  message  to  all  its  members  that
willful and intentional violations of law in reprising  against  any  airmen
will not be tolerated.

She was deprived of the right to advancement to E-6, E-7,  and  E-8  due  to
the unprofessional leadership of her former commander and  his  predecessor,
who subsequently became the Dobbins AFB IG, and wrongly involved himself  in
the IG process from the onset of her “failure to train” grievance.

She disagrees with the JA finding that states,  “There  is  no  direct  line
established for her protected communication to her downgraded EPR.  The  EPR
was due Feb 01 but was not accomplished until months later.  She  filed  her
grievance in Mar 2001, and believes this is  why  she  was  forced  out  the
squadron in Apr 01.  The EPR was accomplished  by  individuals  after  their
being made aware they were named in the IG grievance.

In regard to the JA statement that,  “There  is  no  need  for  disciplinary
action.”  She disagrees, and believes no person is  exempt  from  compliance
with Federal law.  Violations of  law  merit  disciplinary  actions  in  the
interest of justice and in maintaining good order and discipline.

Finally, ARPC/JA did not comment as to whether a reprisal  is  a  crime  for
purposes of Article 92 relief in this  case.   Thus,  she  will  defer  this
legal question and decision to the AFBCMR.

The  findings  and  conclusions  of  the  AFRC/JA  advisory  are  completely
inconsistent with the totality of the evidence in the records and should  be
dismissed in its  entirety  as  frivolous.   The  entire  advisory  is  both
unethical from a legal standpoint and defies reality as it  advances  before
the Board, knowingly false and misleading information.

The evidence of record clearly establishes that she was not  being  properly
trained and that her chain-of-command was derelict in training her.

The actions  of  the  DoD/IG  to  unsubstantiate  the  AFRC/IG  findings  of
reprisal are pending federal judicial review under  the  provisions  of  the
Federal Tort Claims Act (FTCA).

Thus, the Board is urged to give  no  substantive  weight  to  the  AFRC/A1B
legal advisory as it proclaims it is solely  based  upon  the  findings  and
conclusions of the DoD/IG.  The conflict of interest  that  gave  rise  from
the onset of her failure to train grievance has delayed  the  processing  of
this 10 USC 1034 request.  In this regard, the base IG at that time was  her
former commander when the training problems gave rise.

Contrary  to  the  DoD/IG  finding  that  her  performance   of   duty   was
substandard, the DoD/IG and SAF/IG records actually  show  that  during  her
entire assignment to the squadron, she was highly  involved  with  her  unit
and the Wing in general.

The applicant’s complete response, with attachments is at Exhibit F.

________________________________________________________________

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 an injustice to warrant correcting the applicant’s  records  to
show that she was continued on active duty  during  the  period  14  Jan  06
through 23 Apr 06.  Evidence has been presented that she  was  involuntarily
removed from orders on 14  Jan  06.   However,  based  on  established  AFRC
guidance, she should not have been involuntarily released from the  original
orders  until  her  LOD  medical  condition  was  resolved.   Therefore,  we
recommend that her records be corrected to the extent indicated below.

4.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice to warrant favorable  consideration  of  the
remainder of her requests.   After  thoroughly  conducting  our  independent
review of the evidence of record and noting the contentions and  documentary
evidence presented by the applicant’s counsel,  we  are  not  persuaded  the
applicant has been the victim of reprisal.  Further, based on a totality  of
the evidence presented, we are not  persuaded  the  applicant  has  met  her
burden of establishing the existence of an error  or  an  injustice  in  her
records.  In this respect, we note the following:


      a.    The SAF/IG investigated the applicant’s  allegations  under  the
MWPA and concluded the rater rendered an unfavorable  EPR  in  reprisal  for
her filing IG complaints that she was not provided  adequate  training.   As
required by 10 USC 1034, the DoD/IG reviewed the SAF/IG report but  did  not
agree with the substantiated finding with regard to the EPR, closing  24 Feb
01.  The DoD/IG concluded the preponderance  of  evidence  established  that
her lowered performance ratings on the report reflected substandard  conduct
and a decline in her job performance and that the  report  was  an  accurate
evaluation of her performance during the contested period.  With respect  to
her allegations of inadequate training, although the DoD/IG agreed with  the
SAF/IG finding that her training was delayed due to  manning  shortages  and
an inexperienced supervisor, they also found that her chain-of-command  made
an effort to rectify the problem by providing her with an appropriate  level
of training.   At  the  request  of  the  applicant’s  counsel,  the  DoD/IG
reexamined the documentation contained in her case file and  concluded  that
new evidence had not been provided to warrant overturning  their  conclusion
that she had not been the victim of reprisal.  The findings  of  the  DoD/IG
appear to be supported by the evidence  of  record  and  the  applicant  has
failed  to  provide  sufficient  evidence  to  warrant   overturning   their
decision.

       b.     There  has  been  no  showing  the  DoD/IG  investigation  was
improperly conducted.  Given the presumption of regularity in the  operation
of governmental affairs and in  the  absence  of  corroborative  documentary
evidence establishing impropriety, it  is  presumed  that  officers  of  the
government, like other public officials, discharge their  duties  correctly,
lawfully, and in good faith.  The  applicant  has  not  provided  sufficient
evidence to overcome this presumption.

       c.     We  are  not  persuaded  the  contested  EPRs  are  inaccurate
assessments of her performance  during  the  contested  periods.   While  it
appears a personality conflict may have existed between  the  applicant  and
her rater, this in and of itself, does not  warrant  removal  of  a  report,
absent a showing the rater was incapable of rendering a  fair  and  unbiased
evaluation of her performance during the contested period.  In our  opinion,
while the relationship between the applicant and  her  evaluators  may  have
been strained, they were responsible for assessing her  performance  and  in
the absence of evidence to the  contrary,  are  presumed  to  have  rendered
their evaluations, honestly and to the  best  of  their  ability,  based  on
their observations of her performance as it actually  occurred  and  not  on
speculation of what the performance might have been had certain  conditions,
even essential ones, been met.  This Board has often  been  called  upon  to
void reports reflecting diminished performance  on  the  basis  of  external
factors, e.g., illness, family crisis, etc., but has often  determined  that
even if one concedes that  factors  impacted  the  performance,  the  actual
performance was accurately documented.   We  have  thoroughly  reviewed  the
documentation provided with this application and  the  evidence  of  record,
and find no persuasive evidence  showing  she  was  rated  unfairly  or  the
evaluators were biased and prejudiced against her.  The ARPC/JA opines  that
based on what is missing from the applicant’s record, i.e., Memorandums  for
Record  documenting  deficiencies,  formal  training   recommendations,   or
feedback sessions, one can infer that some  form  of  retaliation  occurred.
JA further states that although there is no direct line established  between
her  protected  communications  and  the  downgraded  EPR  (one  of  several
prerequisites for a finding  of  reprisal),  there  are  no  other  apparent
explanations for the lower performance ratings.  While we  agree  there  may
be no readily apparent reasons for the lower performance rating, we  do  not
come to the inescapable conclusion there are no other possible reasons.   We
note that her protected communication  dealt  with  her  lack  of  receiving
adequate training, training which we assume was essential in order  for  her
to perform at the highest level.  As such, we must assume she was  therefore
incapable of performing at the highest level.  In our  view,  the  arguments
made on behalf of the applicant address the reasons why her performance  was
affected  but  does  not  sufficiently  show  the  contested   reports   are
inaccurate assessments of her  performance.   We  further  note  that  while
feedback is certainly desired and to be expected,  Air  Force  policy  holds
that failure to  conduct  a  feedback  session  is  not  a  valid  basis  to
invalidate a performance report.  In  this  applicant’s  case,  although  we
agree that she should have been provided  written  performance  expectations
employing the appropriate  feedback  form  in  accordance  with  established
policy, the witness statements  are  replete  with  corroborative  testimony
that she  was  given  sufficient  verbal  feedback,  routinely  displayed  a
negative attitude to the extent that her work and the  morale  of  the  unit
suffered because she was spending her time complaining rather than  working,
developed  an  adversarial  attitude,  harbored  ill-feelings  and  publicly
expressed a personal vendetta against  her  supervisor,  lacked  initiative,
and her technical skills were not up to  standard,  all  of  which  impacted
upon the overall evaluation of her performance.  We  also  note  that  while
the reports closing 24 Feb 03 and 24 Feb 05 contain  administrative  errors,
we do not feel these errors detract from  the  overall  evaluations  of  her
performance which indicate that she is ready for promotion.

      d.    We recognize that promotion is not a  reward  for  past  service
but rather advancement based on past performance and future  potential.   In
the applicant’s case, she has in essence, requested promotion as  recompense
for the perceived alleged injustices perpetrated against her.  However,  her
contention that she would have  otherwise  been  progressively  promoted  is
based solely on speculation, rather than the evidence of record.

      e.    Although the applicant requests reimbursement for  the  expenses
incurred for off-base housing during the period from  17 Feb  07  through  2
Sep  07,  she  has  not  provided  evidence  that   substantiates   that   a
determination was made that on-base quarters were not available or that  she
was authorized to reside off base during this period.

      f.    In regard to the applicant’s request  that  she  be  permanently
disability retired with a 100 percent compensable rating,  the  Board  notes
that on 13 Nov 07, she was placed on the TDRL with a compensable  rating  of
100 percent, with reevaluation in 12 months.  As of this date,  she  remains
on the TDRL at a 100 percent compensable disability rating and  is  awaiting
reevaluation.  Since she is currently undergoing evaluation within  the  DES
- the proper forum for determining her fitness for duty and whether  or  not
she should be permanently retired with a 100 percent compensable  disability
rating, retained on  the  TDRL,  or  returned  to  duty;  and  there  is  no
indication that her  medical  condition  has  stabilized;  her  request  for
disability retirement is premature at this time.   If,  however,  she  still
believes her records are in error or unjust after her TDRL reevaluation  and
a final disposition of her case within the DES is reached, she  may  request
reconsideration of this portion of her application at that time.

      g.    While the Board has a statutory mandate to correct any  military
record when it considers it necessary to correct an error or  to  remove  an
injustice, it does not issue advisory opinions.  As such,  this  portion  of
the application is  not  within  our  purview  or  authority.   Furthermore,
although  we  can  request  further  investigation  of  the  allegations  of
reprisal, we find no basis  to  do  so  here,  as  her  complaint  has  been
thoroughly investigated by both SAF/IG and DoD/IG, is well  documented,  and
there has been no showing of any impropriety in the process.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.  In view of this, and given  our  above
findings that she has not provided sufficient  evidence  to  establish  that
she has been the victim of reprisal, there  exists  no  basis  to  favorably
consider the remainder of her requests under the MWPA.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that she was  not  released  from  active
duty on 13 January 2006, but was continued on active duty through  23  April
2006.

________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2007-02503
in Executive Session on 15 and 23 Jan 09, under the provisions  of  AFI  36-
2603:

                       Mr. James W. Russell, III, Panel Chair
                       Ms. Barbara A. Westgate, Member
                       Mr. Richard K. Hartley, Member

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

    Exhibit A.  DD Form 149, dated 30 Aug 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memo, ARPC/JA, dated 5 Oct 07.
    Exhibit D.  Memo, AFRC/A1B, dated 9 May 08.
    Exhibit E.  Letter, SAF/MRBR, dated 6 Jun 08.
    Exhibit F.  Letter, Applicant’s Counsel, dated 6 Jun 08,
                w/atchs.




                                   JAMES W. RUSSELL, III
                                   Panel Chair