RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05071
		
		COUNSEL:  NONE


		HEARING DESIRED: NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Article 15 she received on 21 Mar 11 be set aside and 
she be restored to the grade of technical sergeant (E-6) and she 
receive supplemental promotion consideration for the grade of 
master sergeant (E-7).

2.  Her Enlisted Performance Report (EPR), rendered for the 
period of 10 Feb 11 through 30 Jun 11, be declared void and 
removed from her military personnel record or two lines be 
removed from the EPR and replaced with two different lines from 
her current rater.

3.  The Letter of Counseling (LOC), dated 7 Sep 10; LOC, dated 
18 Feb 11; Letter of Reprimand (LOR), dated 28 Mar 11; LOC, 
dated 28 Mar 11; and LOC, dated 15 Jun 11 be removed from her 
official military personnel records. 

________________________________________________________________

APPLICANT CONTENDS THAT:

1.  The alleged false official statement for which she received 
her Article 15 was not made with the intent to deceive; it was 
made from her recollection of the events 24 days after the 
incident in question.  

2.  The Article 15 was too harsh as it did not represent 
progressive discipline; the 18 Feb 11 Letter of Reprimand (LOR) 
she received that preceded it was declared void and removed from 
her records as the Inspector General’s (IG) Office found that it 
constituted reprisal.   

3.  The 7 Sep 10, 18 Feb 11, and 28 Mar 11 LOCs and 28 Mar 11 
LOR were all influenced by the perpetrator of the substantiated 
reprisal and should therefore also be declared void and removed 
from her record.  

4.  The 15 Jun 11 LOC for inattention to detail in the 
performance of her duties was a result of the additional 
scrutiny she was subjected to in the wake of the reprisal and 
numerous other adverse actions against her. 
The applicant’s complete submission, with attachments, is at 
Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 12 Apr 94.  

On 7 Sep 10, the applicant received an LOC for making a false 
official statement to her Flight Commander about who reported 
the applicant for having an unprofessional relationship. 

On 18 Feb 11, the applicant received an LOC for dereliction of 
duty by failing to provide fitness slides on time.  On 24 Feb 
11, she submitted a rebuttal wherein she contended the LOC was 
as an act of reprisal and her supervisor is guilty of unfair 
application of his own standards and those of the USAF.

On 18 Feb 11, the applicant received an LOR for being late for 
work on 16 Feb 11. On 24 Feb 11, the applicant submitted a 
rebuttal to the LOR wherein she contended she was on time for 
work because she remembered walking in the microbiology door 
just as reveille began.  The 18 Feb 11 LOR was later determined 
to be an act of reprisal by the IG and removed from the 
applicant’s records.

On 8 Mar 11, the applicant’s commander notified her of her 
intent to impose non-judicial punishment (NJP) under Article 15, 
for making a false official statement, in violation of Article 
107, Uniform Code of Military Justice (UCMJ).  The reason for 
the action was her rebuttal response to the 18 Feb 11 LOR 
indicated that on 31 Jan 11, she claimed that she was late for 
duty because she was delayed by a member asking a question about 
Medical Readiness, in which this statement was false.  Her 
punishment consisted of reduction to the grade of Staff Sergeant 
and a reprimand.  

On 14 Mar 11, the applicant acknowledged receipt of the Article 
15 punishment and, on 18 Mar 11, elected to appeal the 
punishment and submit statements on her behalf.  

On 21 Mar 11, the applicant’s commander denied her appeal and, 
on 23 Mar 11, the appellate authority denied the appeal.  On 
24 Mar 11, the Article 15 was reviewed and determined to be 
legally sufficient.

On 28 Mar 11, the applicant received an LOR from her commander 
for failure to obey a lawful order given to her by her 
supervisor to provide training dates, update rank, and sign off 
pending tasks in the Air Force Training Record (AFTR).  On 30 
Mar 11, she submitted a response to the LOR wherein she 
acknowledged her delinquency in responding after the stated 
deadline.
On 28 Mar 11, the applicant received an LOC from her commander 
for engaging in conduct with a commissioned officer that created 
the improper appearance of an unprofessional relationship.  On 
30 Mar 11, she submitted a response to the LOC wherein she 
contended that the football game in which she attended with the 
commissioned officer was a group event that included both 
military and civilian personnel and family members.  She also 
contended that on the days she received a ride to work from the 
commissioned officer, she did not have her vehicle so she asked 
him for a ride to work.

On 4 Apr 11, the applicant filed an AF Form 102, Inspector 
General Personal and Fraud, Waste, and Abuse Complaint 
Registration, alleging reprisal within her department.

On 15 Jun 11, the applicant received an LOC for inattention to 
detail in the performance of her duties.  On 15 Jun 11, she 
submitted a response wherein she acknowledged her inattention to 
detail; however, she indicated that other technicians were 
making similar errors, but not being subjected to adverse 
administrative actions.     

On 22 Jul 11, the contested EPR was referred to the applicant 
for comments related to her failing to maintain standards, 
reduction in rank due to making a false official statement, and 
demonstrated lack of integrity.  On 29 Jul 11, the applicant 
submitted a rebuttal to the referral EPR.

The following is a resume of the applicant’s EPR ratings:

	RATING PERIOD	PROMOTION RECOMMENDATION
	  
	 30 Jul 12	3
*	 30 Jun 11 (SSgt)	3 (referral)
	 9 Feb 11	4
	 29 Jun 10	5
	 29 Jun 09	5
	 18 Jan 09 	5 
	 18 Jan 08 (TSgt)	5
	 18 Jan 07	4
	 18 Jan 06 	5
	 18 Jan 05 	4
	 18 Jan 04 	5
	 18 Jan 03	5
	 18 Jan 02	4
	 18 Jan 01 (SSgt)	5
* Contested Report

On 21 Mar 12, DOD/IG notified SAF/IGQ that they agree that 
applicant for making a protected communication.

On 3 Apr 12, AFGSC/IG provided the applicant with a final 
response to her complaint filed with the 90 MW/IG.  The final 
amended findings for the allegations are as follows:
Allegation 1.  That on or about 18 Feb 11, MSgt B--- reprised 
against the applicant in violation of 10 USC 1034 when he issued 
her an LOR in retaliation for making a protected communication. 

FINDING:  SUBSTANTIATED

Allegation 2.  That on or about 18 Feb 11, TSgt G--- reprised 
against the applicant when he influenced MSgt B--- to issue her 
an LOR because he believed the applicant made a protected 
communication.

FINDING:  NOT SUBSTANTIATED

Allegation 3.  That on or about 2 Mar 11, MSgt B--- reprised 
against the applicant when he influenced Lt Col P--- to issue 
her an Article 15 because he believed that she made a protected 
communication.

FINDING (As amended by AFGSC/IG):  NOT SUBSTANTIATED

The applicant’s commander removed the 18 Feb 11 LOR from the 
applicant’s military personnel records as a result of the 
substantiated finding of reprisal in the AFGSC/IG Report.

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, D, and E.

________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request to set 
aside the contested Article 15, indicating she has not shown a 
clear error or injustice.  The applicant fails to make a 
compelling argument the Board should overturn the commander’s 
original NJP decision on the basis of injustice.  Except for her 
contention that her alleged false official statement was not 
intentional and the LOR she received was removed due to her 
substantiated reprisal claim, the applicant offers no evidence 
in her submission that she did not, in fact, make a false 
official statement with which she was charged.  She simply 
offers the proposition that the statement was not intentional 
and she believes the Article 15 is not warranted due to the 
substantiated reprisal claim. 

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPSIM recommends denial of the applicant’s request to 
remove the NJP from her military records, indicating the 
applicant has not indicated a clear error or injustice.  The 
commander followed the appropriate procedures and guidance in 
administering the NJP.  The applicant exercised her right to 
appeal the commander’s decision; however, her appeal was denied 
and punishment was imposed.

A complete copy of the AFPC/DPSIM evaluation is at Exhibit D.

AFPC/DPSID recommends denial of the applicant’s request to 
remove and/or amend the contested EPR from her military record, 
indicating the lack of corroborating evidence provided by the 
applicant and the presumed legal sufficiency of the Article 15 
action does not warrant any corrective action.  She has not 
provided compelling evidence to show that the report was unjust 
or inaccurate as written.  The applicant contends that the 
administrative actions administered to her during this reporting 
period were issued with underlying malicious intent due to 
interpersonal relationships, unfair application of standards, 
and substantiated acts of reprisal and argues that these actions 
are undermined by the partial substantiated claim by the IG 
Office.  However, it is noted that the party in which was a 
subject in the applicant’s complaint, was not a signatory/ 
evaluator of this contested evaluation report.  Furthermore, 
even though two lower level IG offices substantiated the 
applicant’s claim that the subject influenced her commander (the 
additional rater and commander of the contested report) to issue 
the applicant an Article 15 in reprisal, said finding was not 
substantiated by the highest level IG office and the finding in 
this regard was amended to reflect that it was not 
substantiated.  Additionally, there is no evidence that suggests 
the rater of this report may have also been negatively 
influenced into giving an unfair or impartial rating during the 
assessment of the report.  The applicant’s rating chain 
appropriately chose to document the incidents on the contested 
report, which caused the report to be a referral.  

In addition, the applicant requests to remove or amend two 
disparaging lines from the contested report and have two new 
lines inserted by her current rater.  In accordance with AFI 36-
2401, paragraph A1.5.22, “If you are requesting a report be 
reaccomplished, you must furnish a substitute report in your 
appeal case.  The substitute report must be signed by the 
evaluators who signed the original report.”  However, 
inconsistency in ratings does not make it erroneous or unjust.  
A report evaluates performance, conduct, and potential in that 
position for a specific period.  

Finally, AFLOA/JAJM has rendered an opinion that the Article 15 
was legally sufficient and based on that, the contested report 
was appropriate to the circumstances and there is no basis to 
support its removal.

A complete copy of the AFPC/DPSID evaluation is at Exhibit E.
AFPC/DPSOE indicates that in view of the fact AFLOA/JAJM found 
no error or injustice requiring correction or set aside of the 
Article 15 and AFPC/DPSID determined the EPR is accurate as 
written; they defer to both their recommendations and find that 
supplemental promotion consideration should not be awarded.

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

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

She argues that her IG investigation is separated into three 
allegations, each requiring its own individual analysis:  
Allegation 1 being the reprisal of the LOR being issued by MSgt 
B---; Allegation 2 being the reprisal of the Article 15 being 
issued by the commander; and Allegation 3 being the reprisal of 
MSgt B---influencing the commander to issue the Article 15.  She 
reiterates that she was treated differently from her other co-
workers by MSgt B--- and that he was “piling on the paperwork” 
through administrative actions along with diminishing her 
character to the commander that eventually led to her receiving 
an Article 15.  She feels like MSgt B---, by virtue of his 
position as the superintendent, was a participant during the 
decision making process of the Article 15.

She stresses that the 90 MW/IG and AFGSC/IG substantiated 
portions of her complaint and, in the end, a Command Directed 
Investigation (CDI) was initiated.  MSgt B--- was reduced to 
TSgt and forced to retire.  TSgt G--- was reduced to SSgt and 
denied re-enlistment.  The final IG Investigation report 
substantiated the reprisal complaints.

A complete copy of the applicant’s response is at Exhibit H.

________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by 
existing law or regulations.

2.  The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  The 
applicant contends that the inspector general’s finding that she 
was reprised against when issued a LOR on 18 Feb 11 from her 
supervisor is proof of a hostile environment and should form the 
basis of a determination that the remaining contested actions 
are unfair/unjust; however, we are not convinced the existing 
record should be disturbed.  In this respect, we note that the 
IG fully investigated the applicant’s several contentions in 
this regard and found that even though the noted LOR was an act 
of reprisal and was removed from her records, the remaining 
administrative and punitive actions were found to be appropriate 
to the circumstances.  Based on our own independent review, we 
find no basis to conclude that these other contested actions 
constitute and error or injustice under 10 USC 1552, or reprisal 
in violation of 10 USC 1034.  In this respect, we note that 
while the applicant contends these other actions resulted from 
the reprisal motive, she has not presented any additional 
evidence that was not reasonably available and considered by the 
IG that would serve to impugn their methods or findings.  
Therefore, absent direct evidence that the contested actions 
represented an abuse of discretionary authority or 
disproportionate to the circumstances, or the applicant was 
denied rights to which she was entitled, we find no basis to 
recommend granting the relief sought in this application.

________________________________________________________________

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.

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2012-05071 in Executive Session on 30 Jul 13, under 
the provisions of AFI 36-2603:

                      , Panel Chair
	              , Member
	              , Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Oct 12, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 21 Nov 12.
	Exhibit D.  Letter, AFPC/DPSIM, dated 12 Jan 13.
	Exhibit E.  Letter, AFPC/DPSID, dated 10 Feb 13.
	Exhibit F.  Letter, AFPC/DPSOE, dated 6 Mar 13.
    Exhibit G.  Letter, SAF/MRBR, dated 25 Mar 13.
    Exhibit H.  Letter, Applicant, dated 22 Apr 13, w/atchs.




                                   
                                   Panel Chair




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