RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-05912 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

________________________________________________________________ 

 

THE APPLICANT REQUESTS THAT: 

 

1. He be reinstated in the grade of chief master sergeant 
(CMSgt/E-9), with his original date of rank (DOR) of 1 Sep 03. 

 

2. He receive back pay and allowances, including per diem, for 
the remaining portion of his extended active duty tour in 
support of Operation JUMP START (OJS) that was curtailed 
(1 Oct 07 to 25 Jun 08). 

 

3. He receive pay for the Chief Executive Course that he was 
not allowed to attend. 

 

________________________________________________________________ 

 

THE APPLICANT CONTENDS THAT: 

 

At the time the reprisal action took place, he was unlawfully 
pulled from a 2-year mission after only completing 15 months. 
He states that according to the Inspector General (IG) 
investigation, he was targeted by his former mission support 
group (MSG) commander when he did not report for unit training 
assemblies (UTAs) when required. The IG substantiated three 
acts of reprisal by the MSG commander for 1) curtailing his 
Active Guard Reserve (AGR) active duty tour; 2) denial of 
reenlistment, and 3) denial of attendance to the Chief Executive 
Course. 

 

He was fearful of coming forward earlier because he feared 
additional reprisal action against him since his chain of 
command all the way up to The Adjutant General (TAG) was from 
his former unit. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

On 25 Jun 06, the applicant, while serving in the grade of CMSgt 
with the 144th Fighter Wing (144th FW), was recalled on extended 
active duty (EAD) in support of OJS. On 30 Sep 06, the 
applicant was released from active duty in the grade of CMSgt, 
with a reason for separation of completion of required active 
service. On 1 Oct 06, the applicant entered an AGR tour, in 


support of OJS and served until 30 Sep 07, with a reason for 
separation of completion of AGR military duty tour. 

 

On 3 Nov 07, the applicant’s 30 Nov 04 enlistment was extended 
for one year, with an new expiration date of 29 Nov 08. 

 

In Sep 08, the applicant took an assignment with the 222nd Intel 
Support Squadron (222nd ISR), in a master sergeant (MSgt/E-7) 
position and was demoted, without prejudice, to the grade of 
MSgt. 

 

On 16 Nov 08, the applicant reenlisted in the grade of MSgt for 
a period of three years. He completed a subsequent reenlistment 
contract on 11 Nov 11. 

 

On 23 Aug 11, the applicant filed an IG complaint against the 
MSG commander with the following 3 allegations; 1) terminating 
his OJS orders; 2) denying reenlistment, and 3) denying his 
attendance to the Chief Executive Course. 

 

On 19 Oct 12, the applicant was notified by the Secretary of the 
Air Force Inspector General (SAF/IGQ) that the investigation 
substantiated his allegations of reprisal. The SAF/IGQ reviewed 
the report of investigation and concurred with the findings. In 
addition, the Department of Defense Inspector General 
(IG DoD/MRI) concurred with the determination, approved the 
report, and substantiated the allegations (Exhibit B). 

 

SAF/IG concluded that allegation 1 was substantiated because the 
MSG/CC terminated the applicant’s AGR tour orders shortly after 
being notified of the OJS’s letter regarding drill attendance 
was suspect. They noted based on the investigation the 
applicant and his OJS chain of command was understood that he 
would continue on his OJS orders. 

 

SAF/IG concluded that allegation 2 was substantiated because the 
MSG/CC denied the applicant’s reenlistment due to protected 
communication regarding his drill attendance while on OJS orders 
and not as the MSG/CC stated. 

 

SAF/IG concluded that allegation 3 was substantiated because the 
MSG/CC denied his attendance to the Chief Executive Course 
because of protected communication and not because he did not 
want to expend resources on someone who was not reenlisting. 
However, the evidence shows that had the applicant been able to 
reenlist he would have attended the course. 

 

The applicant is currently serving in the grade of senior master 
sergeant (SMSgt/E-8) with a DOR of 1 May 01 and an effective 
date of 19 Dec 12. 

 

________________________________________________________________ 

 

THE AIR FORCE EVALUATION: 

 

NGB/A1P did not provide a recommendation. However, they 
concurred with the subject matter expert (SME) noting the 


applicant’s request did not substantiate any procedural errors 
defined by policy occurred. 

 

The SME, A1PP noted, that while responsible to provide an 
advisory to this case, they cannot affect any of the requested 
changes the applicant has cited in his application. His request 
for changes is not based on procedural errors defined by 
policies but based on several acts of injustices. The requested 
actions can only be rectified by the California Air National 
Guard (CAANG) Joint Forces Headquarters (JFHQ) and Air Reserve 
Personnel Center (ARPC). In addition, discussion with the CAANG 
JFHQ indicates that they are standing by to implement any of the 
directed changes determined by the BCMR. 

 

A1P notes that while they are not trained in the IG arena, it is 
difficult to discount the substantiated SAF/IG complaint 
alleging the applicant’s non-retention was reprisal based. If 
the Board grants relief in concurrence with the SAF/IG findings, 
appropriate updates to the applicant’s personnel record should 
be made. 

 

The Air National Guard Readiness Center Judge Advocate 
(ANGRC/JA) noted if accurate, the SAF/IG Complaint findings 
supports the conclusion that some of the CAANG personnel actions 
described by the applicant were taken as direct result of 
improper retaliatory motives as defined by Title 10, United 
States Code (USC), § 1034- Protected Communications; Prohibition 
of Retaliatory Personnel Actions. All relevant personnel 
actions at issue in the present case were conducted by the 
CAANG, and may only be remedied by the CAANG and ARPC. It is 
proper for NGB/A1P to examine and comment on the procedural 
actions at issue in an appeal to the BCMR submitted by a current 
or former member of the ANG. It would, however, be improper for 
NGB/A1P to rely on the SAF/IG findings in the investigation at 
issue to comment on the motives, and whether those motives were 
the proximate cause, behind the actions of the CAANG. 
Furthermore, determination on the intent and possible remedy of 
CAANG's actions in this matter are beyond the purview of 
NGB/A1P. 

 

The complete A1P evaluation, with attachments, is at Exhibit C. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation, with attachments, was 
forwarded to the applicant on 8 Mar 13 for review and comment 
within 30 days. As of this date, no response has been received 
by this office (Exhibit D). 

 

________________________________________________________________ 

 

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. We note 
that based on the Report of Investigation (ROI) from the SAF/IG 
the applicant was the victim of reprisal under the Whistleblower 
Protection Act (10 USC 1034) by his former commander who denied 
his reenlistment and attendance at the Chief Executive Course 
(CEC). Based on this, the applicant’s requests he be awarded 
back pay and allowances, including per diem for the remaining 
portion of his AGR tour in support of OJS and that he be paid 
for the Chief Executive Course he was not allowed to attend. 
Although the ROI concluded that had it not been for the reprisal 
action the applicant would have been continued on his active 
duty OJS tour for a total of two years, the applicant states 
that his orders were approved in six-month increments due to 
funding. Based on our review of the evidence before us, we do 
not find this to be the case. In this respect, we note that his 
OJS orders began on 26 Jun 06 and appears to have naturally 
ended on 30 Sep 07, not in six months. Other than the comments 
in the ROI, the applicant has not provided substantial evidence 
to demonstrate to our satisfaction that his OJS orders would 
have been approved/extended beyond 30 Sep 07. In view of this, 
we are not inclined to award the applicant additional pay and 
allowances including per diem for the period of 1 Oct 07 to 
25 Jun 08 in support of OJS. Should the applicant provide 
additional documentation from the approval authority that 
validates that his orders would have continued beyond Sep 07 we 
would be willing to reconsider his appeal. As such, this 
portion of the applicant’s request is not favorably considered. 
With respect to the applicant’s request to receive pay for the 
CEC that he was not allowed to attend, we note that he did not 
attend it and has provided no evidence to show that he was 
entitled to compensation for a course he did not attend. 
Accordingly, it is our opinion the applicant has failed to 
sustain his burden of proof that he has been the victim of an 
error or injustice. Absent persuasive evidence that he was 
denied rights to which he was entitled, we find no basis to 
recommend granting the relief sought in this portion of his 
request. 

 

4. Notwithstanding the above, sufficient relevant evidence has 
been presented to demonstrate the existence of error or 
injustice warranting corrective action in regards to 
reinstatement to the grade of CMSgt. After careful 
consideration of the applicant’s request, we agree with the 
findings of the ROI that the applicant was denied reenlistment 
in the grade of CMSgt as a result of a protected communication. 
We note that had the commander not denied the applicant 
reenlistment he would not have taken the actions that resulted 
in his demotion without prejudice to the grade of MSgt. 
Therefore, we conclude that the applicant’s grade should be 
reinstated effective Sep 08 (the date he took the demotion) and 
he be placed in an appropriate position, commensurate with his 


office, grade and rank of CMSgt. Accordingly, we recommend the 
applicant’s record be corrected to the extent indicated below. 

 

________________________________________________________________ 

 

THE BOARD RECOMMENDS THAT: 

 

The pertinent military records of the Department of the Air 
Force relating to APPLICANT, be corrected to show that: 

 

 a. It is recommended that the California Air National 
Guard reflect that on 8 September 2008, he was not voluntarily 
demoted to the grade of master sergeant, without prejudice. 

 

 b. We direct that his Air Reserve Component record 
reflect that he was honorably discharged on 15 November 2008 and 
reenlisted in the Air National Guard on 16 November 2008 for a 
period of three (3) years in the grade of chief master sergeant. 

 

________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2012-05912 in Executive Session on 30 May 13, under 
the provisions of AFI 36-2603: 

 

All members voted to correct the records, as recommended. The 
following documentary evidence pertaining to AFBCMR Docket 
Number BC-2012-05912 was considered: 

 

 Exhibit A. DD Form 149, dated 20 Dec 12, w/atchs. 

 Exhibit B. SAF/IG Report of Investigation, WITHDRAWN. 

 Exhibit C. Letter, NGB/A1P, dated 4 Mar 13, w/atchs. 

 Exhibit D. Letter, SAF/MRBR, dated 8 Mar 13. 

 

 

 

 

 Panel Chair