RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                     DOCKET NUMBER: BC-2013-04268
 				      COUNSEL:  
				      HEARING DESIRED:  YES 


APPLICANT REQUESTS THAT:

He receives the following relief based on being the victim of 
reprisal pursuant to DODD 7050.06, Military Whistleblower 
Protection, dated 23 Jul 07, and Title 10 U.S.C. § 1034:
1.  His demotion to the grade of Staff Sergeant (SSgt, E-5) be 
reversed and removed from his records.  
2.  His Enlisted Performance Report (EPR) for the period ending 
12 Aug 09 be void and removed from his record.
3.  His referral EPR for the period ending 29 Jun 10 be void and 
removed from his record.
4.  He be promoted to the grade of Master Sergeant (MSgt, E-7) 
in the Calendar Year (CY) 2010 promotion cycle.  
5.  He receives back pay and allowances.  


APPLICANT CONTENDS THAT:

In a 23-page statement, the applicant’s counsel presents the 
following major contentions:
In 2008 he was subject to retribution from his leadership.  The 
retribution began after he raised concerns about inappropriate 
remarks made by a squadron commander and a senior enlisted 
individual.  There was also safety concerns regarding an 
aircraft that was experiencing flight control and electrical 
problems.  His leadership withheld his selection as the Squadron 
Flight Engineer of the Year and issued an unjustified “3” EPR 
which was later changed to a “5” by his commander. 
His unit withheld a request for reassignment because he filed an 
Inspector General (IG) complaint.  
He was improperly referred for a command directed Mental Health 
(MH) evaluation and issued a Letter of Reprimand (LOR) for 
stating he was going to make an IG complaint or an Article 
138 complaint. 
He was demoted to the grade of SSgt for making protected 
communications which was improper and unjust.  
The applicant’s complete submission, with attachments, is at 
Exhibit A.


STATEMENT OF FACTS:

On 6 Dec 95, the applicant entered the Regular Air Force.  

According to an AF Form 910, Enlisted Performance Report (AB 
thru TSgt), for the period ending 12 Aug 09 his supervisor gave 
him an overall rating of “3.”  However, his commander non-
concurred and the EPR was upgraded to a “5.” 

On 1 Jun 09, he filed an IG complaint with the 18th Wing 
Inspector General (18th WG/IG), Kadena AB, JA alleging his 
commander reprised against him for an Equal Opportunity (EO) 
complaint he filed in Nov 08 by selecting another person as the 
Flight Engineer Professional of the Year (POY).  The applicant 
alleged his commander attempted to influence personnel to vote 
for a particular presidential candidate, berated an aircraft 
commander for not flying an aircraft with a missing tool and 
placed a crew in jeopardy by having them fly without de-icing 
systems.  

In an e-mail dated 8 Jun 09, the applicant wrote to the 
Secretary of the Air Force Inspector General (SAF/IGE) advising 
of reprisal by his former commander and that he planned to 
submit an IG complaint to the Department of Defense (DOD) IG due 
to the unique situation and the people involved at the 18th 
WG/IG level (friendship). In the e-mail, he requested 
whistleblower protection stating that on 13 Apr 09, he was not 
selected for POY and was reprised and discriminated against for 
being outspoken and going against the grain of his leadership’s 
philosophy and operational expectations with regards to morale 
and safety issues.

In a letter dated 8 Jun 09, the 18th WG/IG informed the 
applicant his reprisal allegation complaint was dismissed IAW 
AFI 90-301, Inspector General Complaints Resolution, paragraph 
5.4.  There was protected communication, however, there was no 
unfavorable or favorable personnel action taken.  Both the 
Pacific Air Forces (PACAF/IGQ) and SAF/IGQ stated the POY award 
would not be considered withholding a favorable personnel 
action.  The issue of the voting e-mail was dismissed.  The 
Staff Judge Advocate (SJA) reviewed the e-mail and determined it 
read neutral and did not constitute an attempt to influence or 
interfere with the outcome of an election.  The other two issues 
dealing with flight safety were determined command issues and 
were referred to the 18th Operations Group Commander (18th 
OG/CC).

In a memorandum dated 15 Jun 09, the 18th OG/CC informed the 
applicant the allegations of flight safety during the two 
sorties were investigated and determined to be unfounded.  He 
noted there may have been instances of unclear communication; 
however, based on the facts presented he did not believe safety 
of flight was ever in jeopardy.  

In an e-mail dated 26 Jun 09, SAF/IGQ informed the applicant 
that his concerns were already addressed and a thorough review 
of the complaint yielded no compelling evidence to disagree with 
the conclusions of the 18th WG/IG.  The applicant was advised 
that absent new and relevant evidence, they had no recourse 
except to file any future correspondence without action or 
response.  

On 14 Sep 09, the applicant filed an IG complaint alleging his 
unit leadership took reprisal action against him for filing an 
IG complaint in Jun 09.  

According to AF Form 1768, Staff Summary Sheet, dated 15 Oct 09, 
the applicant requested his commander’s recommendation for 
reassignment to the 99th Airlift Squadron (Presidential Support), 
Joint Base Andrews NAF, MD.  
 
On 9 Dec 09, his commander non-recommended him for reassignment 
stating “Member not medically qualified.” 

On 4 Jan 10, he received a LOR for willfully disobeying a 
commissioned officer by failing to disclose a medical condition 
in his application for reassignment  and extortion by making a 
statement in front of a witness that he would be submitting an 
Article 138 complaint against his commander for holding up his 
assignment application.  In his response, he states he did not 
intend to be disrespectful and understood he could improve his 
tone.  He also stated that he had no intent to extort, threaten 
or injure anyone and believed an Article 138 complaint was 
appropriate.

In a letter dated 18 Feb 10, the IG DOD Military Reprisal 
Investigations (MRI) concurred with the declination to 
investigate the reprisal allegation In Accordance With (IAW) 
10 U.S.C. § 1034.  

In a letter dated 23 Feb 10, PACAF/IGQ informed the applicant 
that the 18th WG/IG thoroughly investigated his allegation that 
his superintendent rated him an overall rating of “3” on his Aug 
09 EPR in reprisal for making a protected communication on 
26 May 09 to the 18th WG/IG in violation 10 U.S.C. § 1034.  The 
18th WG/IG concluded the responsible management official did not 
reprise against the applicant or abuse their authority.  
Further, based on the evidence they concluded there was 
insufficient justification to conduct an investigation under AFI 
90-301 and 10 U.S.C. § 1034.  As a result, they recommended the 
allegations be dismissed.  The applicant was advised his case 
was thoroughly reviewed by the Complaints Resolution 
Directorate, SAF/IG and final approval determined by the Special 
Inquiries Directorate, DOD IG/MRI IAW 10 U.S.C. § 1034.

On 19 Mar 10, the applicant acknowledged receipt of the proposed 
demotion action to the grade of SSgt dated 15 Mar 10.  He 
indicated he had consulted legal counsel, would submit written 
statements in his own behalf and requested a personal hearing.  

In a letter dated 24 Mar 10, the applicant’s Area Defense 
Counsel (ADC) requested the pending demotion action to the grade 
of SSgt not be processed stating the unit had not used the 
“progressive” approach to discipline.  An overview of his entire 
military record was provided to the demotion authority.

In a letter from the 961st Airborne Air Control Squadron 
Commander (961st AACS/CC) dated 1 Apr 10, the applicant was 
notified that the demotion authority approved the recommendation 
that he be demoted to the grade of SSgt.  Per Special Order AA-
02 dated 19 Apr 10, the applicant was demoted to the grade of 
SSgt with a Date of Rank (DOR) and effective date of 31 Mar 10.

According to another letter from the 961st AACS/CC dated 13 May 
10, he was referred for a MH evaluation.  The reasons for the 
referral was his refusal to fly on an aircraft although it was 
deemed airworthy, attempting to prove retaliation for not 
winning an annual award, an emotional outburst on an E-
3 aircraft in which he left his duty position with the engines 
running, reporting to the 18th WG, 5th Air Force and PACAF safety 
offices that he thought there was a Top Secret Memorandum For 
Record (MFR) program to record everything he was saying and that 
the program could injure him or destroy his career.  He also 
reported to his physician that he was under significant stress. 

According to his EPR ending 29 Jun 10, he received a referral 
EPR with an overall rating of “3.”  The specific reasons for the 
referral EPR include his administrative demotion to the grade of 
SSgt for failure to meet NCO responsibilities and a Letter of 
Admonishment (LOA) for disrespecting commanding officers during 
an Article 138 redress.  

In an e-mail dated 30 Jun 10, the applicant submitted 
allegations of reprisal to the IG DOD Hotline.  He alleged that 
he received a referral EPR for making protected communication 
and was demoted to the grade of SSgt in reprisal for submitting 
an AF Form 457, USAF Safety Hazard Report.  In letters to 
Members of Congress he wrote that he was referred for a mental 
health evaluation, removed as a Noncommissioned Officer in 
Charge (NCOIC) and received an unfavorable EPR.  

In a letter dated 22 Nov 10, the PACAF/IGQ notified the 
applicant the IG DOD/MRI requested they review the following 
allegations in violation of 10 U.S.C. § 1034:

a.  On or about 25 Jan 10, his commander removed him from his 
position as NCOIC in reprisal for making a protected 
communication (AF Form 457).   

b.  On or about 15 Mar 10, his commander initiated 
administrative demotion in reprisal for making a protected 
communication. 

c.  On 31 Mar 10, he was administratively demoted by his group 
commander in reprisal for making a protected communication.  

d.  On 13 May 10, his commander referred him for a MH evaluation 
in reprisal for making a protected communication.  

e.  On 30 Jun 10, he was issued a referral EPR for making a 
protected communication.  

f.  On 16 Jul 10, his commander upheld the referral EPR in 
reprisal for making a protected communication.  
 
The 18th WG/IG conducted a complaint analysis into the 
allegations and after a thorough examination of all the facts, 
concluded the responsible management officials did not reprise 
against the applicant, or abuse their authority.  Further, based 
on the evidence they concluded there was insufficient 
justification to conduct an investigation under AFI 90-301 and 
10 U.S.C. § 1034.  As a result, they recommended the allegations 
be dismissed.  Further, the case was thoroughly reviewed by 
SAF/IG and IG DOD/MRI IAW 10 U.S.C. § 1034.

In an e-mail to the IG DOD dated 1 Dec 10, the applicant 
requested further review from an IG at any level based on new 
documentation.  He submitted two binders to the IG DOD who 
delegated the situation back to the 18th WG/IG and never 
interviewed him face to face.  He was bounced around multiple 
IG’s and requested a local IG reopen his case.  

Per Special Order ACD-02090 dated 16 May 13, the applicant was 
placed on the Temporary Disability Retired List (TDRL) in the 
grade of Technical Sergeant (TSgt, E-6), highest grade 
satisfactorily held, effective 27 Sep 13 with a 60 percent 
compensable disability rating.  He was credited with 17 years, 
9 months and 22 days of active duty service.  


AIR FORCE EVALUATION:
AFPC/DPSOE recommends denial of the applicant’s requests to 
reverse the demotion action and to promote him to the grade of 
MSgt for Promotion Cycle 10E7.  DPSOE recommends the request for 
set aside of the demotion be time barred.  Due to the passage of 
time, DPSOE is unable to verify the applicant’s contentions 
concerning the specifics regarding the demotion action as 
official documentation (demotion package) is no longer 
available.  DPSOE further recommends the request for promotion 
to the grade of MSgt be denied as he was ineligible for 
consideration and/or was never selected prior to his placement 
on the TDRL in the grade of TSgt.  
The complete DPSOE evaluation is at Exhibit C.  
AFPC/DPSID recommends denial of applicant’s requests to remove 
the contested EPRs ending 12 Aug 09 and 29 Jun 10.  The 
applicant did not file an appeal through the Evaluation Report 
Appeals Board (ERAB) IAW AFI 36-2401, Correcting Officer and 
Enlisted Evaluation Reports, due to the applicant’s retirement 
from active duty.  The applicant has not provided substantiating 
documentation or evidence to prove his assertions that the 
contested evaluations were rendered unfairly or unjustly, and 
has merely offered his view of events in the light that is most 
beneficial to him.  Air Force policy is that an evaluation 
report is accurate as written when it becomes a matter of 
record.  Additionally, it is considered to represent the rating 
chain’s best judgment at the time it is rendered.  To 
effectively challenge an evaluation, it is necessary to hear 
from all members of the rating chain, not only for support but 
also for clarification.  The applicant has failed to provide any 
information from rating officials on the contested reports.  It 
is determined that the report was accomplished IAW all 
applicable Air Force policies and procedures.  DPSID contends 
that once a report is accepted for file, only strong evidence to 
the contrary warrants correction or removal from an individual’s 
record.  The burden of proof is on the applicant.  The applicant 
has not substantiated that the contested report was not rendered 
accurately and in good faith by all evaluators based on 
knowledge available at the time.  
The complete DPSID evaluation is at Exhibit D.  


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The advisories which state the application was filed late is 
incorrect as the application was filed just as he was retiring.  
As active duty time is excused, the application is timely filed.

DPSOE attempts to blame the applicant that his demotion 
paperwork is no longer in his records.  The demotion action 
should have been retained three years; however, it is clear that 
the demotion package was lost less than three years of when it 
was finalized.  Therefore, the applicant’s time of filing had no 
impact on the availability of the demotion package.  

The loss of the demotion package is indicative of the improper 
processing and impropriety of the demotion from the beginning.  
He had an outstanding record prior to making protected 
complaints.  He rightly complained about improper racial 
comments about the President by senior members of his squadron 
and about the safety of an aircraft that was impounded a week 
later.  After these complaints, his supervisory chain issued him 
negative paperwork for issues that occurred long ago.  These 
actions did not warrant even counseling at the time they 
occurred, but somehow they became serious enough after the 
complaints.  The only purpose for the demotion action was to 
punish the applicant for making protected statements.

DPSID acknowledges the applicant made protected statements and 
also acknowledged he received adverse actions but then states 
there is no connection.  They also state that his supervisors 
and raters were within regulatory guidance in taking their 
actions.  The facts are clear the applicant made protected 
statements, his duty performance did not change in anyway, but 
how he was treated by his supervisory chain did change for the 
worse.  The negative comments on his performance reports and 
adverse actions constitute reprisal and are improper.

The only reason he was ineligible for promotion was the improper 
reprisal and retaliation taken against him.  He tested for 
promotion to the grade of MSgt and easily should have made the 
cut off for promotion.  If his commander had not improperly 
demoted him, he would have been promoted in due course.  The 
Secretary of the Air Force obviously believed the demotion was 
improper as he was retired in the grade of TSgt.  

Because of the reprisal actions by his chain of command, the 
applicant developed Post-traumatic Stress Disorder (PTSD).  He 
has now been medically retired.  The only way to make him whole 
is to overturn the demotion action, remove the adverse EPRs and 
promote him as appropriate.

The applicant’s complete submission 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.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice to warrant 
reversing his demotion to the grade of SSgt, promoting him to 
the grade of MSgt with back pay or removing the contested EPRs 
from his record.  We note the applicant alleges that he has been 
the victim of reprisal and discrimination and has not been 
afforded full protection under the Whistleblower Protection Act 
(10 U.S.C. § 1034).  However, the evidence reflects the 
applicant’s IG complaints and allegations of reprisal were 
thoroughly investigated by the 18th WG, PACAF and DOD IG/MRI 
offices and it was concluded there was no evidence of reprisal.  
Moreover, based upon our own independent review of the available 
evidence, the applicant has not established that the 
administrative actions taken by his superiors were an act of 
reprisal or arbitrary and capricious.  While counsel’s arguments 
are duly noted, he has not provided substantial evidence which, 
in our opinion, successfully refutes the assessment of the case 
by the Air Force Offices of Primary Responsibility (OPR). 
Therefore, aside from DPSOE’s recommendation to time bar the 
applicant’s requests, we agree with the opinions and 
recommendations of the Air Force OPR’s and adopt the rationale 
expressed as the basis for our conclusion that the applicant has 
failed to sustain his burden of proof that he has been the 
victim of an error or injustice.  Therefore, in the absence of 
evidence to the contrary, we find no basis to recommend granting 
any of the relief sought in this application.
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.


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-2013-04268 in Executive Session on 20 Nov 2014 under 
the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2013-04268 was considered:

	Exhibit A.  DD Form 149, dated 21 Aug 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSOE, dated 15 Nov 13.  
        Exhibit D.  Memorandum, AFPC/DPSID, dated 8 Aug 14.
        Exhibit E.  Letter, SAF/MRBR, dated 12 Sep 14.  
        Exhibit F.  Letter, Applicant’s Counsel, dated 7 Oct 14.