ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER: BC-2012-01472

		COUNSEL:  NO

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  Her official military records be corrected to show she was not involuntarily discharged from the Air Force.

2.  She be reinstated onto active duty in her last Air Force Specialty Code (AFSC) of 8R000 (Enlisted Accessions Recruiter).  
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APPLICANT CONTENDS THAT:

1.  She was unfairly denied an Administrative Discharge Board (ABD) during her involuntary discharge.  Her Area Defense Counsel (ADC) told her she did not qualify for an ADB because she had not served the minimum of six years of active duty which is required to warrant an ABD.  However, per AFI 36-3208, Administrative Separation of Airman, she was entitled to an ADB because she had over six years of total service.  She served 5 years, 1 month, and 10 days of active duty, and 5 years, 11 months, and 20 days of inactive duty.  

By amendment the applicant contends:

2.  Her discharge from the Air Force was an act of reprisal, in violation of the Whistleblowers Protection Act, for making a protected communication while at Air Force Recruiting School regarding a classmate who had been unfairly advanced through a particular portion of the course curriculum.  Because of the protected communications, she was subjected to a hostile work environment at her new duty station, which included delays in receiving advanced Basic Allowance for Housing (BAH) and access to software required to perform her duties, being assigned a government vehicle with a history of maintenance problems, being given an old computer, and having a flight mate who made persistent unwanted sexual advances toward her.  As a result of this reprisal, she went Absent Without Leave (AWOL) to find resolution outside of the Air Force.

3.  Her Article 15 was ineffective for the following reasons:

	a.  The charges reflected were erroneous.  While her Flight Chief requested the Article 15 be initiated for her being AWOL, the actual charges reflected the following: “Without authority, failed to go at the time prescribed to her appointed place of duty,” and “Without authority was absent from her place of duty at which she was required to be.”  Additionally, the period of AWOL described is incorrect as she attempted to surrender on 21 Dec 10, but was told that she must return to her home station to do so.

	b.  The ultimate sentence was crafted in such a way as to give her the false perception she would be granted probation and rehabilitation until 11 Jul 11, without further action, but instead she was demoted.  

	c.  The bases of the action included two Letters of Reprimand (LOR), but the LORs for “improper use of a government owned vehicle” and for “making unauthorized phone calls” were too harsh.  Each LOR states she was “derelict in her duties,” but “derelict” is too harsh a word for unintentional misuse. 

4.  She was improperly denied her right to test for promotion to the grade of Staff Sergeant (SSgt) in 2010.  Her adjusted date of rank (DOR) to Senior Airman (SrA) was 26 Jul 09, making her eligible to test for SSgt in the 2010 cycle after she had completed six months’ time-in-grade (TIG).  However, her leadership told her she could not test until 2011.  

The applicant’s complete submission, with attachments, is at Exhibit A.
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RESUME OF CASE:

On 29 Mar 12, the applicant applied to the Board seeking the same relief and presenting the same contentions delineated above.  On 9 Jan 13, the Board concluded sufficient relevant evidence had been presented to demonstrate the applicant was unjustly denied her right to meet an Administrative Discharge Board (ADB) in conjunction with her involuntary discharge.  This determination was based upon the fact that she had served more than six years of combined active and inactive service, which qualified her to meet an ADB.  Concerning the applicant’s contention in her rebuttal that she had been the victim of reprisal in violation of the Whistleblower Protection Act, the Board found the required Inspector General investigation (IG) into her reprisal allegations had never been completed.  In order for the Board to render full and fair consideration of the application, the case was referred to the IG and administratively closed until such time that the IG could look into the applicant’s allegations of reprisal and provide a final investigative report to the Board.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit G. 

On 21 Aug 14, DoD-IG approved the Air Force IG’s findings that the applicant’s allegations of reprisal against responsible management officials assigned to the USAF Recruiting School and her Recruiting Squadron (RCS) were not substantiated and DoD-IG agreed with the Air Force IG’s conclusion her commander issued her two Letters of Reprimand, gave her an Article 15, and recommended her for administrative separation based on her substantiated acts of misconduct and a pattern of minor disciplinary infractions, and not because she made protected communications (Exhibit O).

On 25 Sep 15, SAF/MRBC forwarded a redacted copy of the final IG Report of Investigation (ROI) to the applicant and notified her that her case had been reopened (Exhibit P). 
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AIR FORCE EVALUATIONS:

AFPC/DPSOE does not make a recommendation regarding the applicant’s promotion opportunities, but addresses the applicant’s contention she was denied the opportunity to test for SSgt during cycle 10E5.  A review of her records reveals no indication she was denied testing.  The applicant was a prior service member who was accessed onto active duty on 25 Jan 10 as a SrA with a DOR of 26 Jul 09.  She was eligible for promotion consideration to SSgt during promotion cycle 10E5 based upon her DOR alone.  However, she was “nonweighable” based on the fact that she did not have a current Enlisted Performance Report (EPR) within the past five years, and she did not have a control AFSC (CAFSC) updated in the system.  Members are considered “nonweighable” if a promotion factor (test, EPR, AFSC, etc.) is either missing or incorrect.  Therefore, if a member does not have an EPR on file, they cannot be considered for promotion until their next projected EPR closes out or until an EPR directed by Headquarters Air Force is completed for promotion consideration.  In addition, she did not have a CAFSC established.  Members compete for promotion in the CAFSC they hold as of the promotion eligibility cutoff date (PECD).  The PECD for 10E5 was 31 Mar 10.  The applicant’s control AFSC was not updated until she completed her technical training on 9 Apr 10.  She should have been assigned CAFSC 9A000 (student) until completion of her recruiter technical training.  Had the 9A000 CAFSC been assigned she would have tested PFE-only as a retrainee, and still remained nonweighable until she had at least 60 days supervision and an EPR rendered.  However, because the applicant received an Article 15 on 12 Jan 11 and was reduced in rank to A1C, even if she were selected for promotion, she would have lost her line number for promotion due to the Article 15 punishment if she was to be promoted after Jan 11.  

A complete copy of the AFPC/DPSOE evaluation is at Exhibit H.

AFLOA/JAJM addresses the applicant’s nonjudicial punishment (Article 15), and determines the applicant’s commander did not act arbitrarily or capriciously in making the decision to punish the applicant under Article 15.  While the applicant does not allege an error or injustice in her receipt of this Article 15, she is protesting her administrative discharge, which was based upon the Article 15 and two LORs.  Nonjudicial punishment is authorized by Article 15, Uniform Code of Military Justice (UCMJ).  This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  Accepting Article 15 proceedings is simply a choice of forum; it is not an admission of guilt.  A member accepting Article 15 proceedings may submit matters to, and have a hearing with, the commander imposing punishment.  The commander must consider any information offered by the member and must be convinced by reliable evidence that the member committed the offenses before imposing punishment.  Members who wish to contest their commander’s determination or the severity of the punishment imposed may appeal to the next higher commander.  On 4 Jan 11, the applicant was offered nonjudicial punishment under Article 15, UCMJ.  She was charged with failing to go to her appointed place of duty and for being absent from her place of duty for eight days, both in violation of Article 86, UCMJ.  The applicant was afforded the opportunity to consult with defense counsel, accepted the Article 15 and waived her right to demand trial by court-martial.  She submitted a written presentation and elected to make a personal appearance before her commander.  The commander decided the applicant committed the charged offenses and imposed punishment consisting of a reduction to the grade of airman, with a reduction below airman first class suspended for six months, and a reprimand.   The applicant did not appeal her commander’s decision.  The Article 15 action was reviewed and determined to be legally sufficient.  The commander at the time of the Article 15 had the best opportunity to evaluate the evidence for this action, and found nonjudicial punishment appropriate.  The legal review process showed the commander did not act arbitrarily or capriciously in making this decision.  

A complete copy of the AFLOA/JAJM evaluation is at Exhibit I.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Through three separate letters, dated 8 Jun 13, 15 Jun 13, and undated, the applicant takes exception to both the AFPC/DPSOE and AFLOA/JAJM advisories and submits a timeline of events:  

1.  In response to the AFPC/DPSOE advisory, the applicant makes the following arguments:

	a.  In accordance with AFI 36-2101, Table 3.10, Classifying Military Personnel (Officer and Enlisted), the effective date of a new control AFSC (CAFSC) for a retrainee is the date departed current duty station to accomplish required training.

	b.  In accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems, Table 3.7, Rule 11, Note 13, that AFPC/DPSIDE directs an evaluation if the evaluation is necessary for promotion consideration.  

	c.  Test Control Officers/Test Examiners are required to maintain a list of all nonweighable examinees and update it monthly.

	d.  She had a CAFSC uploaded in the system effective 25 Jan 10, and claims that a 9A000 CAFSC would have been inappropriate for her situation.

	e.  She only received one Article 15 in her career.

	f.  Had she been given the proper CAFSC, been allowed to test, and received a Headquarters directed EPR, she would not have committed the offense she committed.

	g.  In accordance with AFI 36-2502, Airman Promotion/ Demotion Program, Para 2.8.1., an Airman missing one or more testing cycles is considered retroactively by using scores from the next available WAPS test (Exhibit K).

	2.  In response to the AFLOA/JAJM advisory, the applicant:

		a.  Reemphasizes she was denied her right to an administrative discharge board (ADB).

		b.  Points out one of the purposes of NJP is to “promote positive behavior changes in service members,” but she was discharged without probation or rehabilitation.

		c.  Indicates she was actually assigned in Oak Creek, WI, not Scott AFB, IL.

		d.  States when she tried to surrender after going AWOL, she was initially advised to sneak back into her duty station and resume her daily duties.

		e.  States she was no longer AWOL after 21 Dec 10, when she attempted to turn herself in at Moody AFB, GA, but was incorrectly told she must return to Scott AFB, IL, to surrender.

		f.  Highlights she did allege an injustice in the receipt of her non-judicial punishment by stating that her commander disregarded evidence she provided him in her response to this offer of NJP on 12 Jan 11 (Exhibit L).

	3.  In her undated letter, the applicant emphasizes the AFPC/DPSOE statement that she could have tested for SSgt during the 2010 May-Jun Test Cycle (PFE-only as a retrainee), and submits a timeline of events (Exhibit M).
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ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA recommends the Board set aside the basis and character of her 2011 discharge and substitute an honorable discharge based on Secretarial authority.  Having been discharged from the Air Force on 4 Mar 11, the applicant’s status today is that of a civilian.  As a consequence, she could not be “recalled” to active duty for the hearing, as recommended by AFPC/DPSOS in the original consideration of this case as she is not in a capacity (like Reserve or retired) that would permit recall.  Thus, the only means for the Board to afford the applicant a discharge board would be to set aside the 2011 discharge as having been accomplished in error, and reinstate her to active duty, effective 4 Mar 11.  However, this option does not come without some serious legal and practical problems.  First, there is the problem of High Year of Tenure (HYT) restrictions.  Per the AFRX/RSO/CCU advisory the applicant is no longer qualified to serve as a recruiter.  In addition, because of the extensive delays in this case resulting from multiple IG investigations, such a solution would entitle the applicant to back pay for more than four years of Air Force service which she did not, in fact, perform—a tremendous undeserved windfall.  This option would also bring with it questions of promotion eligibility and potential HYT problems for this period of time.  In addition, there are considerable practical problems with trying to run a board four plus years after the fact.  Therefore, even though an ADB would likely not have recommended an honorable discharge, given the time, problems, and all of the circumstances associated with this case, the Board should set aside the basis and character of her 2011 discharge and substitute an honorable discharge based upon Secretarial authority. 

A complete copy of the AFPC/JA evaluation is at Exhibit Q. 
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APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

Since she did not ask for the AFPC/JA advisory she refuses to respond, adding “this decision is final and it stands.”
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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 an error or injustice warranting corrective action.  While there are admitted errors in the case, we find it more likely than not that the applicant would have received the same outcome she ultimately did even if the processing of her case had been error-free.  As such, we decline to recommend any correction to her record.  We took notice of the applicant’s complete submission, to include her rebuttal responses to the advisory opinions, in judging the merits of the case; however, regarding her contentions, we believe the denial of an ADB was harmless error; reprisal was not a motive in her disciplinary actions; her Article 15 was legally sufficient; and, given her substantiated misconduct, denying her the opportunity to test for promotion in 2010 had no effect on her advancement. 

In particular, we agree with AFLOA/JAJM that the applicant’s commander did not act arbitrarily or capriciously in rendering non-judicial punishment, and with the finding of the Air Force IG that her commander recommended her for administrative separation based on substantiated acts of misconduct and a pattern of minor disciplinary infractions, and not because she made protected communications.  After a thorough review of the evidence of record and the applicant’s complete submission, we do not find the evidence presented sufficient for us to question the underlying basis for command’s actions or to persuade us she is the victim of an injustice.  It does appear the applicant was improperly denied an ADB during her discharge process, and we note the recommendation from AFPC/JA to change the character of the applicant’s discharge to Honorable; but we also share AFPC/JA’s belief that an ADB would likely not have recommended an honorable service characterization.  Moreover, the review of the applicant’s case at the Department of Defense level, through the DOD/IG process, represents a far higher level of scrutiny than most airmen discharged for misconduct ever receive.  Therefore, we are not convinced the denial of the ADB, in and of itself, constitutes a sufficient basis to recommend granting the relief sought, particularly when there was a legitimate basis for the applicant’s involuntary separation and general service characterization.  Additionally, after a careful review of the applicant’s misconduct which formed the basis of the discharge, we find it more likely than not that even if she had been provided an ADB, she would have received the same discharge characterization she now holds.  Therefore, in our view, the fact she was not provided an ADB constitutes a harmless error.  As such, it would be unfair to all those who served honorably to furnish the same coveted Honorable discharge to someone whose service was terminated for substantiated misconduct.  

In addition, while the Board notes the applicant was denied the opportunity to test for promotion during the 10E5 promotion cycle, the fact she did not test also constitutes a harmless error because she was not otherwise qualified to meet a promotion Board during that cycle.  The applicant was not on active duty for an extensive period of time between 21 Mar 04 through 25 Jan 10, and arrived at her Recruiter duty station in Apr 10 after the 31 Mar 10 Promotion Eligibility Cutoff Date (PECD) for promotion cycle 10E5, so she did not have a current EPR on file and therefore was “non-weighable” for promotion purposes.  Further, even if she had been qualified to meet a promotion board and been selected for promotion during cycle 10E5, we find it more likely than not that having received two LORs, gone AWOL, and received nonjudicial punishment by Jan 11, she would have been disqualified for promotion.

In sum, while we acknowledge that certain errors were made in the processing of the applicant’s discharge for misconduct, we are not convinced that these errors constituted an injustice under 10 USC 1552, or that the command’s actions in response to the applicant’s misconduct were motivated by reprisal in violation of 10 USC 1034.  Accordingly, we find no basis to recommend granting the relief sought in this application.
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THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.
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The following members of the Board considered AFBCMR Docket Number BC-2012-01472 in Executive Session on 9 Jan 12, 11 Dec 14, and 18 Mar 15 under the provisions of AFI 36-2603:

	Chair
	Member
	Member



The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-01472 was considered:

     Exhibit A.  DD Form 149, dated 29 Mar 12, w/atchs.
     Exhibit B.  Master Military Personnel Records. 
		Exhibit C.  Memorandum, AFPC/DPSOS, dated 14 May 12.
	 Exhibit D.  Memorandum, AFRS/RSO/CCU, dated 2 Aug 12.
		Exhibit E.  Letter, SAF/MRBR, dated 3 Aug 12.
	Exhibit F.  Letter, Applicant, undated. 
	Exhibit G.  Record of Proceedings, dated 23 Jan 13, w/atchs. 
	Exhibit H.  Memorandum, AFPC/DPSOE, dated 20 May 13. 
	Exhibit I.  Memorandum, AFLOA/JAJM, dated 4 Jun 13.  
	Exhibit J.  Letter, AFBCMR, dated 6 Jun 13.  
Exhibit K.  Memorandum, Applicant, dated 8 Jun 13, w/atchs. 
Exhibit L.  Memorandum, Applicant, and 15 Jun 13, w/atchs. 
Exhibit M.  Memorandum, Applicant, undated, w/atch. 
Exhibit N.  Letter, AFBCMR, dated 15 May 15.
Exhibit O.  Report of Investigation, DOD/IG, dated
            21 Aug 14, w/atch.
Exhibit P.  Letter, SAF/MRBC, dated 25 Sep 15.
Exhibit Q.  Memorandum, AFPC/JA, dated 18 Feb 15.
Exhibit R.  Memorandum, SAF/MRBR, dated 20 Feb 15.  
Exhibit S.  Letter, Applicant, dated 27 Feb 15.