RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-01522 

 

 COUNSEL: XXX

 

 HEARING DESIRED: NO 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

The following documents be declared void and removed from his 
records: 

 

1. AF Form 911, Enlisted Performance Report (MSgt thru CMSgt) 
covering the period 16 Jan 09 through 15 Jan 10. 

 

2. AF IMT 174, Record of Counseling, dated 18 May 10. 

 

3. DA Form 4856, Developmental Counseling Form, dated 
26 May 10. 

 

4. AF IMT 174, Record of Counseling, dated 3 Jun 10. 

 

5. AF Form 469, Duty Limiting Condition Report, dated 
27 Jul 10. 

 

6. DA Form 3349, Physical Profile, dated 27 Jul 10. 

 

7. Physician’s Counseling Notes, dated Aug 10 [sic]. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He has been the victim of reprisal in violation of 10 USC 1034 
for making protected communications. Specifically: 

 

 1. The Commander of the Army National Guard (ARNG) unit to 
which he is assigned referred him for an improper mental health 
evaluation (IMHE) in reprisal for making protected 
communications to members of his chain of command. The 
Commander and unit medical officer violated the MHE procedural 
requirements of DoD Directive (DODD) 6490.1, Mental Health 
Evaluations of Members of the Armed Forces, and DoD Instruction 
(DODI) 6490.4, Requirements for Mental Health Evaluations of 
Members of the Armed Forces. 

 

 2. The Deputy Commander of the ARNG unit to which he is 
assigned restricted the applicant from communicating with a 


Member of Congress and provided false statements during an 
official investigation. 

 

 3. Unfavorable information was unjustly entered into his 
official personnel records. 

 

The Department of Defense Inspector General (DOD/IG), in DOD/IG 
Report of Whistleblower Reprisal Investigation, dated 16 Feb 12, 
substantiated all three of the applicant’s allegations and 
substantiated reprisal against the applicant. 

 

In support of his request, the applicant provides copies of the DOD/IG Report of Whistleblower Reprisal Investigation with 
transmittal letter, and copies of the contested documents. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is currently a Master Sergeant (E-7), Active Guard 
Reserve (AGR), Montana Air National Guard (MTANG), and during 
the period in question was working under Montana Army National 
Guard (MTARNG) supervision at the Joint Force Headquarters 
(JFHQ), Montana National Guard (MTNG). 

 

On 7 Mar 10, the applicant informed his JFHQ leadership about a 
Nov 09 government vehicle accident involving potential alcohol 
use by the driver and assistant driver. 

 

On or about 11 May 10, the applicant informed the JFHQ 
purchasing office personnel of an alleged improper use of his 
unit’s government purchase card. 

 

On 18 May 10, the applicant was issued a counseling statement 
citing his failure to accomplish his fitness assessment (FA) in 
accordance with previous direction to do so. He was also 
instructed in writing to “utilize the chain of command in all 
circumstances except when utilizing the IG or the Chaplain” 
regarding any issues that related to his official duties. 

 

On 26 May 10, the applicant was issued a counseling statement 
citing him for failure to answer his government cellular phone. 

 

On 28 May 10, the applicant filed a complaint with the JFHQ/IG 
alleging that on 18 May 10 he received written counseling in 
reprisal for reporting the aforementioned communications on 
7 Mar 10 and 11 May 10. 

 

On 3 Jun 10, the applicant was referred by his leadership for a 
Mental Health Evaluation (MHE). 

 


On 6 Jun 10, the applicant received an AF IMT 174, Record of 
Individual Counseling, for departing from group Physical 
Training (PT) early. 

 

On 21 Jul 10, the applicant filed a complaint with the JFHQ/IG 
alleging that he was referred for a MHE in reprisal for his 
having contacted them on 28 May 10. 

 

On 27 Jul 10, the applicant was provided a DA Form 3349, Physical Profile, limiting his duty by restricting him from 
assignment to a hot zone pending evaluation by behavioral 
health. 

 

On 14 Feb 11, the applicant was furnished the contested EPR, 
rendered for the period 16 Jan 09 through 15 Jan 10. 

 

On 16 Feb 12, DoD/IG, Director, Whistleblower Reprisal 
Investigations, notified the applicant of their finding that he 
was referred for the MHE in reprisal for his protected 
communications in violation of 10 USC 1034 and the MHE referral 
was not carried out in accordance with the procedural 
requirements of DODD 6490.1 and DoDI 6490.4. In addition, the 
written guidance he received on 28 May 10 to restrict his 
communications to his chain of command failed to include Members 
of Congress as an exception, thus constituting restriction in 
violation of Title 10 USC 1034. 

 

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force, which are attached at Exhibits C and D. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFMOA/SGAT recommends approval, indicating there is evidence of 
an error or injustice. The applicant requests the removal of 
all documents related to the IMHE. The available documents from 
the DoD/IG investigative report confirm he was referred for an 
IMHE in reprisal and appropriate procedures had not been 
followed. Based on the documentation in support of the 
applicant’s claim, the Board should approve the request to 
remove the notes for the 3 Jun 09 counseling session, the 
DA Form 3349, and the AF Form 469. As the applicant’s remaining 
requests are related to personnel actions, any recommendation 
must be deferred to the appropriate OPR. 

 

The complete AFMOA/SGAT evaluation is at Exhibit C. 

 

NGB/A1PS recommends partial approval indicating there is 
evidence of an error or injustice. As it is clear the member’s 
rights were violated, the notes dated Aug 10 [sic] recorded by 
Capt A-, DA Form 3349, and AF Form 469 should be removed from 
the applicant’s records. However, recommend the EPR for the 
period of 16 Jan 09 through 15 Jan 10 remain in the applicant’s 


records because it does not mention the members IMHE and does 
not appear to be related to the IMHE. Recommend the DA Form 
4856 (developmental counseling) also remain in the member’s 
record because it does not show the IMHE violation and appears 
to be before the IMHE. The applicant did not provide any 
documentation to show the performance report and developmental 
counseling were “tainted.” 

 

The complete NGB/A1PS evaluation, with attachment, is at 
Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant reiterates that all of the contested actions were 
tainted in reprisal for his protected communications. In 
addition, he provides further detail on each of the incidents 
which were investigated by the JFHQ/IG and DoD/IG and were the 
basis of the DoD/IG report. In addition, he submits significant 
documentation in support of each contention. 

 

A complete copy of the applicant’s response, with attachments, 
is at Exhibit F. 

 

On 14 Jul 12, the applicant submitted another expanded statement 
in which he again reiterates his rationale for requesting the 
identified documents be removed from his records. He believes 
his leadership was trying to entrap him in order to provide 
themselves with sufficient supporting documentation to write a 
referral EPR in Jan 11. 

 

A complete copy of the applicant’s additional response, with 
attachments, is at Exhibit G. 

 

________________________________________________________________ 

 

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 error or injustice. The 
applicant contends he was the victim of reprisal in violation of 
10 USC 1034 in response to making protected communications. 
After a thorough review of the evidence of record and the 
applicant’s complete submission, to include his responses to the 
advisory opinions rendered in this case, we agree. In this 
respect, we note the DOD/IG report, dated 16 Feb 12, indicates 
the applicant was the victim of an unfavorable personnel action, 
specifically, the referral for a mental health evaluation (MHE), 


in reprisal for making protected communications to officials 
within his chain of command and was improperly restricted from 
communicating with members of Congress, both in violation of 
10 USC 1034. Based upon these findings, we agree with Air Force 
offices of primary responsibility (OPR) and adopt their 
rationale as the basis for our conclusion that any documents 
related to the MHE referral (e.g. physicians notes, DA Form 
3349, AF Form 469, and AF IMT 174) should be declared void and 
removed from his records. As for the applicant’s remaining 
requests, we note that DoD/IG did not make a specific finding 
with respect to the contested counseling statements and enlisted 
performance report (EPR); however, based on our own independent 
review and notwithstanding the comments of NGB/A1PS indicating 
the counseling statements and EPR do not appear to be directly 
related to the primary reprisal activity, we believe the 
preponderance of evidence indicates that it just as likely as 
not that these actions were influenced and/or motivated by this 
substantiated reprisal motive. In this respect, we note the 
counseling statements were issued to the applicant in quick 
succession and within very close proximity to his protected 
communications in what appears to be an attempt by his 
leadership to build a record of substandard performance. As for 
the contested EPR, while it was rendered for the period closing 
15 Jan 10, months before the applicant’s first protected 
communication; it was not concluded or presented to the 
applicant until well after the events in question. Therefore, 
given the evidence before us and in light of the applicant’s 
otherwise exemplary service, we believe reasonable doubt has 
been established that the counseling statements and EPR were 
rendered in good faith or are accurate descriptions of the 
applicant’s duty performance. As such, we elect to resolve any 
doubt regarding this issue in the applicant’s favor. Therefore, 
we recommend the applicant’s records be corrected as indicated 
below. 

 

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. 

 

________________________________________________________________ 

 

THE BOARD RECOMMENDS THAT: 

 

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT be corrected to show that the 
following documents be declared void and removed from his 
records. 

 

 a. AF Form 911, Enlisted Performance Report (MSgt thru 
CMSgt), rendered for the period 16 Jan 09 through 15 Jan 10. 

 

 b. AF IMT 174, Record of Counseling, dated 18 May 10. 

 


 c. DA Form 4856, Developmental Counseling Form, dated 
26 May 10. 

 

 d. AF IMT 174, Record of Counseling, dated 3 Jun 10. 

 

 e. AF Form 469, Duty Limiting Condition Report, dated 
27 Jul 10. 

 

 f. DA Form 3349, Physical Profile, dated 27 Jul 10. 

 

 g. Physician’s Counseling Notes, dated Aug 10 [sic]. 

 

________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2012-01522 in Executive Session on 16 Aug 12, under 
the provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

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

 

 Exhibit A. DD Form 149, dated 12 Mar 12, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFMOA/SGAT, dated 11 May 12. 

Exhibit D. Letter, NGB/A1PS, dated 4 Jun 12. 

Exhibit E. Letter, AFBCMR, dated 27 Jul 12. 

Exhibit F. Letter, Applicant, dated 25 Jun 12. 

Exhibit G. Letter, Applicant, dated 14 Jul 12. 

 
 

 Panel Chair