RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05978
			COUNSEL: 
			HEARING DESIRED: YES

	 

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APPLICANT REQUESTS THAT:

1. His Unfavorable Information File (UIF), dated 1 Mar 11, be 
removed from his records.

2. His Letter of Admonishment (LOA), dated 21 Dec 10, be 
removed.

3. The derogatory comment “During this period, Major C displayed 
disrespectful and unprofessional behavior toward 66 ABG legal 
staff for which he received a Letter of Admonishment” be removed 
from his Training Report, dated 3 Aug 12, or, in the 
alternative,  the entire report be declared void and removed 
from his records.

4. He be reinstated into the Regular Air Force at his previous 
rank and grade.

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APPLICANT CONTENDS THAT:

In a 10-page brief, the applicant’s counsel makes the following 
key contentions:

	1.  The applicant was retaliated against by his leadership 
resulting in the issuance of an LOA, a UIF, and a referral 
Training Report.  

	2. On or about 20 Nov 10, the applicant injured himself while 
serving as an Honor Guard Ceremonial Guardsman during a funeral 
ceremony.  However, he was never evaluated for any disability 
prior to discharge.

	3. On or about 21 Dec 10, he received a LOA for being 
“uncooperative” with and allegedly “rais[ing] [his] voice” 
during a meeting.  He believes thereal reason he received the 
LOA was because his leaders were upset that he had brought a 
serious safety concern to the attention of senior leaders and 
were concerned that this would make them look bad in the eyes of 
their raters.  The LOA subsequently formed the basis for a UIF 
and was reflected on his Training Report.



	4. Despite an Air Force Student/Patient Panel recommending 
his retention, a Reduction in Force (RIF) Retention Board non-
selected him for retention.  He did not receive a RIF score 
sheet and was not evaluated for any disability prior to 
discharge.   

	5. His command failed to comply with the governing 
instructions regarding filing the LOA in the UIF:

		a. His LOA did not have any supporting evidence.  First, 
the LOA did not comply with the strict regulatory requirements 
contained in the governing instructions for LOAs and UIFs. The 
instructions specifically state, that a LOA shall state “[w]hat 
the member did or failed to do, citing specific incidents, and 
their dates.”  The LOA only provides the date theapplicant sent 
an email to his leadership identifying safety concerns, yet 
provides no dates about when his alleged “unprofessional and 
immature behavior toward the 66 ABG legal staff” took place.  
Additionally, it fails to cite any “specific” actions or words 
used by the applicant.  Secondly, and most importantly, the 
applicant was never provided with any evidentiary basis for the 
LOA precipitating his separation. His command not only failed to 
follow the applicable instructions, but ended his career without 
gathering a single piece of evidence to support the vague and 
untrue allegations contained in the LOA.  In fact, it appears 
that there was not even the most cursory inquiry or 
investigation into the applicant’s alleged misconduct.  Even 
more troubling is the alleged offensive conduct involved (1) an 
attempt to report a serious safety violation and (2) 
communications which the applicant believed were subject to 
attorney client privilege.  

		b. The Air Force Safety Program is designed to encourage 
reporting of safety incidents and concerns.  Moreover, various 
federal laws, including the Military Whistleblower Protection 
Act (MWPA), 10 U.S.C. Section 1034 and DoD Directive 7050.0 
prohibit reprisal actions, such as the admonishment received by 
the applicant.  When a “member of the Armed Forces communicates 
information the member reasonably believes evidences a violation 
of law or regulation, including… a substantial and specific 
danger to public health or safety, when such communication is 
made to any of the … Any person or organization in the chain of 
command.”  The email to leadership falls squarely with the 
protections of the MWPA, and subsequent actions taken by his 
command are textbook reprisal.  

Regarding the communication between the applicant and the legal 
personnel, the governing instructions provide, that “Legal 
assistance establishes an attorney-client relationship and 
consists of Air Force attorneys provided advice on personal, 
civil legal matters to eligible beneficiaries.”  The 
communication should take place in a “confidential setting” and 
most importantly that information received from a client during 
legal assistance, attorney work-product, and documents relating 
to the client are confidential.  Information should only be 
released with the client’s express permission, pursuant to a 
court order, or as otherwise permitted by the Air Force Rules of 
Professional Conduct and other Air Force rules pertaining to 
ethical conduct and professional responsibility.  Such release 
should only be accomplished after contacting AFLSA/JACA through 
the appropriate supervisory chain.

There is no exception authorizing disclosure when the attorney 
believes the client has engaged in disrespectful conduct.  The 
66 ABG/SJA failed to comply with these requirements and 
disclosed communications with the applicant to command in 
connection with the issuance of the LOA, after assuring him of 
the confidentiality of their communications.  

	6. Improper inclusion of non-specific/vague derogatory 
comments on the applicant’s Training Report:  Despite the fact 
that this allegation is not supported by any evidence, sworn 
statement, memorandum for record, or other documentation, the 
Training Report contains exactly the type of “non-specific/vague 
comments about the individual’s behavior or performance” which 
are prohibited by the governing instruction.  As these comments 
are prohibited, and are not supported by the evidence, the 
Training Report should be voided or the inaccurate and 
unsubstantiated comments be removed.  

In support of his request, the applicant provides a copy of his 
Declaration Statement; excerpts from his medical records; a copy 
of his LOA and response; a copy of his AF IMT 1058, Unfavorable 
information File Action; a copy of his AF Form 77, Letter of 
Evaluation; a copy of a memorandum from AFIT/ENE, a copy of his 
response to the AFIT/ENE memorandum; a copy of an Addendum;, 
copies of his AF Form 707, Officer Performance Report; a copy of 
a letter from Headquarters Space and Missile Systems Center ; a 
copy of a Separation Fact Sheet, with four attachments; copies 
of letters of support, and a copy of his DD Form 214, 
Certificate of Release or Discharge from Active Duty.

His complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

On 12 Jul 10, the applicant was commissioned a second lieutent 
and enrolled in a 41-week Education with Industry program 
through the Air Force Institute of Technology at Raytheon 
Company, Marlborough, MA.

On 20 Nov 10, the applicant was injured while performing duty 
during an Air Force Honor Guard funeral ceremony.

On 21 Dec 10, the Associate Dean for Students, Air Force 
Institute of Technology (AFIT), Air University, issued the 
applicant a Letter of Admonishment (LOA) for unprofessional and 
immature behavior toward the 66 ABG legal staff and disrespect 
toward a superior commissioned officer. 

On 26 Jan 11, the Commandant, AFIT, determined that an 
Unfavorable information file should be established and the LOA 
filed therein.

On 17 Aug 11, the applicant was rendered a referral Training 
Report (TR), for the period 12 Jul 10 through 24 Jun 11.  IAW 
the governing AFI, the TR was considered a referral based on the 
following comment, “During this period [applicant] displayed 
disrespectful and unprofessional behavior toward 66 ABG legal 
staff for which he received a Letter of Admonishment.”  Prior to 
making the TR a matter of record, the Commandant, AFIT, 
considered the applicant’s response, as noted in the Letter of 
Evaluation that accompanies the TR.

The applicant was considered and not selected for retention by 
the Calendar Year 2011 Reduction in Force Board.  

On 25 Jan 12, the Air Education and Training Command Inspector 
General (AETC/IGQ) reviewed the applicant’s allegations and 
provided the following analysis:  

	Issue 1:  The applicant alleged the Associate Dean for 
Students reprised against him by issuing him an LOA because he 
reported a safety hazard to Air Force senior leaders.  The 
applicant contends that it was because of the LOA that he was 
not retained in the Air Force.  

Analysis/Findings:  This case did not meet the elements for 
prima facie reprisal.  The AFIT Dean of Students issued the LOA 
to the applicant for good reason, unrelated to the alleged 
protected communications.  The LOA was based on the applicant’s 
disrespect to a superior officer and for unprofessional conduct 
towards the staff of the 66 ABG/JA.  The UIF was created to 
ensure the LOA was transmitted to his gaining unit.  The 
decision to file the LOA in his OSR was at the discretion of his 
senior rater who apparently felt the applicant’s lapse in 
decorum warranted the attention of future promotion or retention 
boards.

	Issue 2:  Review of Abuse of Authority.  Since the responsible 
management official’s (RMO) actions were within the scope of his 
authority and were not arbitrary or capricious, he did not abuse 
his authority by issuing the LOA to the applicant.

Analysis/Findings:  AETC/IG dismissed the complaint in 
accordance with governing instructions.  They found the 
complaint to be untimely and the likelihood the evidence 
necessary to make a definitive decision in any investigation was 
grossly diminished by the passage of time.  Since AETC/IG did 
not pursue the complaint, notifications in conjunction with any 
possible reprisal allegation or adverse information against the 
Associate Dean for Students was not required.  The case was 
closed and the applicant was notified.  A copy of the complete 
Report of Investigation is at Exhibit B.

The applicant was released from active duty on 1 March 2012 with 
a narrative reason for separation of Reduction in Force.

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

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AIR FORCE EVALUATION:

AFPC/DPSIM recommends the UIF and LOA not be removed from the 
applicant’s records.  They cannot speak to whether or not the 
commander’s actions were just or not; at most they can only 
discuss if the proper procedure was followed in the 
administration of action.  After careful review of the evidence 
presented, minor discrepancies have been identified in the 
commander’s process for establishing a UIF.  However, none of 
the discrepancies are so egregious that they invalidate the 
commander’s action.  The LOA in question should have been 
administered as outlined by the governing instructions.  
Specifically, there is no evidence the applicant acknowledged 
receipt of the LOA at the time of being administered the 
admonishment.  Paragraph 6 of the LOA notifies the applicant 
that “You will acknowledge receipt of this letter immediately by 
signing the acknowledgement below”; however, the LOA does not 
provide the endorsement the commander is referring to.  The 
applicant presumably received the LOA, dated 21 Dec 10, and 
submitted comments on 10 Feb 11.  With that being the case, they 
assume the applicant acknowledged receipt of the administrative 
action; therefore, meeting the intent of the instructions.

The complete DPSIM evaluation is at Exhibit D.

AFPC/DPSOR does not provide a recommendation.  The Air Force 
implemented various voluntary Force Management measures to 
decrease personnel over its authorized end strength; however, 
they did not achieve the required losses for the officer force 
through voluntary means thus the Secretary of the Air Force 
chose to convene a RIF Board.  Captains and Majors in the Line 
of the Air Force and in specified year groups were considered by 
the board.  Officers not selected for retention on active duty 
had a mandatory date of separation of 1 Mar 2012.  An 
unfortunate consequence of reducing the officer force is losing 
quality professionals who gave their best to the Air Force.  
Shortening the careers of the dedicated officers was a painful, 
but a necessary action by the Air Force in order to meet end 
strength and budgetary limitations.

The complete DPSOR evaluation is at Exhibit E. 

AFPC/DPSID recommends denial of the applicant’s request to 
remove the training report.  Based on the lack of corroborating 
evidence provided by the applicant, and the presumed legal 
sufficiency pertaining to the issuance of the LOA as commented 
upon in the contested report, they recommend the report remain 
in the applicant’s records.  Further, the applicant has not 
provided sufficient evidence to show the report was unjust or 
inaccurate as written.  Although the applicant provided a 
compelling story and they can sympathize with him that he was a 
victim of accidental bodily injuries while performing Honor 
Guard duties, this does not excuse him from remaining 
professional and respectful to the JAG personnel and having the 
common courtesy of following the proper chain of command 
protocols.  Ultimately, the adverse actions against him happened 
because of how he conducted himself after the incident.  

The complete DPSID evaluation, with attachment, is at Exhibit F. 

AFPC/JA recommends denial stating that they agree with the other 
advisories in this case, and write only to add additional 
comment.  The DPSID advisory provides a complete and accurate 
assessment of the issues raised in the application.  They also 
agree with the IG’s determination not to conduct a full 
investigation and to dismiss the complaint.  The applicant’s LOA 
and UIF are completely supported by the evidence.  

The portion of the LOA that admonished the applicant for not 
reporting his concerns to lower level supervisors and failing to 
follow the chain of command in no way establishes the LOA was a 
pretext for reprisal.  In addition, attorney-client privilege 
covers the content of communications; it does not at all pertain 
to reporting observed behavior by witnesses that happened to be 
attorneys.  Privileged communications do not include rude and 
disrespectful behavior.

The complete JA evaluation is at Exhibit G.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In a 7-page brief, counsel provides the following key points for 
his rebuttal:

	a. While AFPC/DPSIM recommends denying the removal of the 
applicant’s UIF and LOA, they explicitly note that they “cannot 
speak to whether or not the commander’s actions were just or 
not” and are only discussing whether proper procedures was 
comported with.  Although DPSIM characterizes the deficiencies 
as “minor,” they concluded the proper procedures were not 
followed, in that (1) the LOA did not contain the required 
endorsement for signature by the applicant; and (2) the 
commander did not acknowledge receipt of the applicant’s 
rebuttal prior to deciding to establish the UIF.  

	b. The emails recently provided to the applicant pursuant 
to a Freedom of Information Act (FOIA) request indicate that 
senior leadership had already decided to take adverse action 
against him in retaliation for the email he sent on 22 Nov 10.  

	c. In an 8 Dec 10 email, the Associate Dean of Students at 
AFIT stated, “FYI, between the inappropriateness of the initial 
notification; email, and follow on actions with your folks, I’m 
“Looking at [issuing] LOA with likely UIF.”  In other words, he 
was planning to issue a UIF, in part, for retaliation against 
the applicant emailing his safety concerns to senior leadership.  
Further, the recipient of this email stated that “I strongly 
support a UIF,” again without regard to any explanation by the 
applicant.

	d. AFPC/DPSOR’s memorandum addresses only the applicant’s 
non-retention under the RIF board.  The memorandum is dedicated 
only to explaining the origins and procedures of the RIF board, 
and does not refute any of the irregularities or injustices 
raised by the applicant. 

	e. AFPC/DPSID addresses only the referral training report 
and does not address whether the training report contains “non-
specific/vague comments about the individual behavior or 
performance” in violation of the governing instruction.  The 
report does not indicate when the alleged conduct took place, or 
what the alleged disrespectful and unprofessional behavior was, 
nor does it indicate that this occurred in the aftermath of a 
traumatic accident involving the applicant.  In addition, DPSID 
gives a lot of weight to an AETC/IG memorandum that allegedly 
found “no merit in the member’s claim.”  However, the fact is, 
the IG declined to conduct an investigation into the allegations 
of reprisal on the basis the request for investigation was made 
more than 60 days after the incident.  To date, no investigation 
has taken place with regard to the applicant’s allegations of 
reprisal.  

	f. Regarding the memorandum for record from the Associate 
Dean for Students, rendered prior to his retirement/, he states 
the “reasons for the LOA are clearly laid out in paragraphs 1 
and 2 of the LOA” and paragraph 3, regarding the applicant’s 
email, was only an “opportunity to provide some formal, written 
mentoring.”  

	g. The AFPC/JA advisory opinion relies upon the findings 
of the AETC/IG report which contends it “fully investigated” the 
applicant’s allegation, yet acknowledges the IG did not conduct 
a “full investigation” into the applicant’s complaints.  AFPC/JA 
contends the LOA was “completed supported by the evidence” 
referencing a 29 Nov 10 memorandum for record; however, no such 
memorandum was provided to the applicant in connection with the 
LOA, UIF, or referral training report.  With regard to the issue 
of privilege, AFPC/JA ignores the fact the alleged disrespectful 
behavior by the applicant arose during attorney-client 
communications; this fact is confirmed in an email from the 
colonel to a general officer.

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

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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 error or injustice.  We took 
careful notice of the applicant’s complete submission pursuant 
to Title 10, United States Code, Section 1552; however, we are 
not persuaded that he has been the victim of an error or an 
injustice.  We have also considered this case under the 
provisions of 10 USC 1034 and find the evidence provided 
insufficient to override the rationale provided by the Air Force 
offices of primary responsibility.  We also note the applicant 
filed a complaint with the IG alleging reprisal; however, the IG 
determined his complaints did not meet the elements for prima 
facie reprisal and were found to be untimely.  While the 
applicant alleges the LOA and referral training report harmed 
his retention opportunities, he has not provided any evidence 
showing the content of the report was the sole reason he was not 
selected for retention by the RIF board.  As noted by 
AFPC/DPSOO, the Air Force had to make a reduction in their 
officer force, and although it was unfortunate, it was necessary 
in order to meet congressionally mandated end strength.  
Furthermore, the action taken against the applicant was solely 
due to his own actions.  With regard to counsel’s assertion the 
66 ABG/SJA failed to comply with attorney-client 
confidentiality, as noted by AFPC/JA, the applicant’s reporting 
of a hazardous situation was investigated by the AETC/IG office 
who determined the communications were not sent as protected 
communications; therefore, no violation occurred.  The applicant 
has not provided evidence to persuade us to the contrary and we 
agree with the opinions and the recommendations of the Air Force 
offices of primary responsibility and adopt their rationale as 
the basis for our conclusion the applicant has not been the 
victim of an error or injustice.  Therefore, in the absence of 
persuasive evidence to the contrary, we find no basis to 
recommend granting the relief sought in this application.  

4.  The applicant alleges he has been the victim of reprisal.  
By policy, reprisal complaints must be filed within 60 days of 
the alleged incident or discovery to facilitate the IG’s 
investigation.  As mentioned above, we note the applicant filed 
an IG complaint; however, his complaint did not meet the 
elements for prima facie reprisal and were found to be untimely. 
Nevertheless, we reviewed the evidence of record to reach our 
own independent determination of whether reprisal occurred under 
the provisions of 10 USC § 1034.  We note the applicant’s 
contentions but based on our independent review of the evidence 
presented, we do not conclude that he has been the victim of 
reprisal.  

5.  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.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not 
demonstrate the existence of 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.

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The following members of the Board considered AFBCMR Docket 
Number BC-2012-05978 in Executive Session on 5 Nov 13, under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member







The following documentary evidence was considered in AFBCMR 
Docket Number BC-2012-05978:

    Exhibit A.  DD Form 149, dated 21 Dec 12, w/atchs.
    Exhibit B.  SAF/IG Investigation (Withdrawn).
	Echibit C.  Applicant's Master Personnel Records.
    Exhibit D.  Letter, AFPC/DPSIM, dated 31 May 13.
    Exhibit E.  Letter, AFPC/DPSOR, dated 10 Jun 13.
    Exhibit F.  Letter, AFPC/DPSID, dated 14 Jul 13.
    Exhibit G.  Letter, AFPC/JA, dated 22 Jul 13.
    Exhibit H.  Letter, SAF/MRBR, dated 18 Sep 13.
    Exhibit I.  Letter, Applicant’s Counsel, dated 11 Sep 13 
 				   [sic], w/atchs.



                                   
                                   Panel Chair