ELY. Depm?nmmt ?4 Captain Jashua Wilsan United States Air Force WHISTLEBLOWER REPRISAL INVESTIGATION LL-.L I-.. I?nd- uu-Luulusn LUIILEIHI: Lllal. ?Half an: arunl m-Inrl-?H-nru urn-Har- Ernurl?m n; .HH I- . -. ..-- l??n ?l'l'lf?l?l I U11 I li?lr?ll? 20121204-000898 WHISTLEBLOWER REPRISAL INVESTIGATION CAPTAIN JOSHUA VIRGINIA DEPARTMENT OF AFFAIRS VIRGINIA AIR NATIONAL GUARD LANGLEY AIR FORCE BASE 1. EXECUTIVE SUNIMARY We conducted this investigation in res onse to alle atinns that reprised against Captain Joshua (Complainant), 14.5. Air Force, Virginia Air National Guardsman (V for making protected communications. We did not substantiate- the allegations. We found that Com lainant made rotected com munications to the when he voiced satiety concerns a! t?s beliefwas reasonable when he regarding the 1-7-22. Raptor. We determined lh voiced his safety concerns. Complainant allegedthat did not renew his Title 10 orders, removed him from a promotion vacant 1.- list, issued him a etler of reprimand and c'onvened a ?vin evaluation board lFlul-l) in reprisal for his protected communications. We found that would have. taken the personnel actions against Complainant. absent his protected communications regarding safetv concerns with the when con?gured With the Raptor 2 Modi?cation.25 We conclude that actions were not in? violation of Title 10, United States Code, Section 1034 (10 15.5.0. 1034'), which is implemented by BOB Directive 7050.06, ?Military ?Mlistleblower Protection.? We make no recommendations in this matter. _1 on June 7, 2014 [ii-Ii. {Ti H, closed out the action as? vice a letter-of reprimand. 2 Raptor 2 Mod is the CRU-122 (oxygen regulated?) with an ?in?line ?lter. The in-line ?lter is the C2A1 ?lter. Published in Information Files (FCIF) ll=20 and 11-21. FCIF.12-18, dated April 26, 2012, removed the Raptor 2 Mod from the ?ight con?guration. 20121204-000898 II. BACKGROUND Complainant?s Virginia Air National Guard, Langley Air Force Base (AFB), chain of command in order of precedence consists of: I49th Fighter Squadron (149th 192nd Operations Group (192d 192nd Fighter Wing (192d Air Component Commander "m . The Adjutant General (TAG), Virginia Department Affairs; I Virginia Secretary of Public Safety; and 0 Governor of Virginia. From October 1, 2011, to March 27, 2012, Complainant served as a Title 10 mobilized guard member. 3 The responsible management of?cials (RMOQI are Air Combat Command (ACC), a iitie 10 Force IviaJor Command, deVeiops and mandates ?ight procedures and equipment con?gurations for the -22 aircraft. Beginning in 2008, the F-22 began to experience a signi?cantly higher rate of hypoxia- like incidents with unknown causes as reported by the pilots. The Air Force was not able to determine the ?root cause? for these incidents and a further review was recommended to the Secretary of the Air Force. The USAF conducted a four-tier effort re?ecting a ?eet-wide approach in coordination with the Commander, Air Combat Command (ACC), to identify the root cause(s) of these incidents. These actions were: 1) -22 Program Of?ce/Lockheed Martin Root Cause and Correction Analysis process; 2) USAF Class E5 Safety Investigation Board review 3) Air Force Scienti?c Advisory Board (AFSAB) study panel; and, 4) F-22 Life Support System Task Force (LSS). On May 3, 2011, ACC of?cials initiated a safety stand down after F-22 pilots experienced a series of ?hypoxia-like? events.6 In June 2011, a study was initially to be 3 Although Complainant made most of his protected communications while in Title 10 status, demonstrating a federal nexus to the investigation, all unfavorable personnel actions occurred when he was in Title 32 status. 4 The RMOs decided to take administrative measures against Complainant. They did not extend Complainant on Title 10 status in order to obtain jurisdiction over him to affect those measures. 5 Events that do not meet reportable mishap classi?cation criteria but nonetheless have a high potential for causing injury, occupational illness, or damage. Class events are deemed important to investigate and trend for mishap prevention. 6 ?Hypoxia-like? event is a term that refers to a constellation of F-22 pilots experienced. include respiratory, cognitive, and neurological impairment that can manifest in??ight and post-?ight. The onset is insidious and dif?cult to diagnose. 20121204-000898 3 conducted by a panel composed of AFSAB and SIB members as well as the System Program Of?ce (SPO), and ACC to identify necessary steps to return the to unrestricted operations. This study concluded that the hypox'ia-like incidents were being caused by the P-22 life support System either (1) delivering a lower amount of oxygen to the 'piIOt than necessary to support normal performance, or the system was producing or failing to ?lter toxic compounds in the breathing air. In the case of either hypothesis, the result would be hypoxia- like that could threaten safety of ?ight. These assessments led the study panel to make findings and recommendations to beth mitigate identi?ed risks in allowing the F-22 to return to ?ight and to provide the data necessary to identify the root cause(s) of these hypoxia- like incidents. When the F-22 resumed ?ight on September 21, 2011, there was no met cause determination of the probiem(s) with the for the events that led to the safety stand down. Of particular note, there were no physical modi?cations to the except for the addition of a ?lter and a pulse oximeter. There were also modi?cations to ?ight procedures. 'On October-20, 2011, after the safety stand down, two Langley AFB F-22 pi10ts in the same ?ight experienced hypoxia?like events that required one pilor to receive treatment in a hyperbaric chamber. While this incident raised concerns in the Langley AFB F-22 pilot Community, pilots continued ?ying, and Complainant executed 18.3 ?ight hours in the F-22 during the months of October and November 2011. In late November or early December 2011, numerous air-hoses that supplied oxygen to pilots were cross-sectioned, revealing deposits of charcoal inside the hose. Analysis of the hose determined that the liberated charcoal was the result of pressurized air ?owing through the ?lter before pilot inhalation. This discovery caused a ripple effect of safety concerns thrdughout the F422 community, including Complainant and other 149th FS pilots. Collectively, the general concerns were about the short? and long?term health risks to pilots as well as the physiologicial impact on pilot performance. According'to while most F-22 pilots were concerned about breathing liberated charcoal, Complainant was one of ?ve to seven pilots who expressed concerns about breathing liberated charcoal and also about the Raptor 2 Mod causing an to crash given that the root cause of the events leading to the May 3, 2011, safety stand down had not been determined. On February 1, .2012, the AF SAB issued a report stating that the SAB and the LSS had nor determined a root cause(s) of the hypoxia-like incidents but identi?ed and mitigated a number of risks. The AP SAB and 1.58 did identify that contaminants were at levels far below those known to be harmful to humans. In early April 2012, Boeing, the lead for the ?lter analysis, presented its results to the LSS. The LSS recommended to ACC the removal of the 2Al ?lter from the F-22 ?ight con?guration. Subsequently, ACC removed the filter from the F-22 ?ight con?guration on April 26, 2012. 20121204?000898 4 SCOPE This. investigation covered events from September 2011 to Ma 2012. We interviewed 35 individuals, includingr 16'Dersonnel from the 192d FW to include . We also interviewed four medical personnel Involved in treatment and/or the medical status determination of Complainant. Additionally, we analyzed documents gathered by a Mishap Prevention Analysis Team the AF SAB February I, 2012, report on Aircraft Oxygen Generation; testimony before the US. House of Representatives, House Armed Services Committee, subcommittee on tactical air and land forces; ?ight record data for the two active and one National Guard ~22 squadrons at Langley memoranda for the record and emails; unfavorable personnel actions generated by the 192d and emails and miscellaneous documents generated and received by Complainant. Lastly, we consulted relevant Code of Federal Regulations, Air Force Instructions, and subject matter experts from the National Guard Bureau (NGB) and ACC Operations. IV. STATUTORY AUTHORITY The Department of Defense Inspector General 1G) conducted this whistleblower reprisal investigation pursuant to Title 10, United States Code, Section 1034 (10 U.S.C. 1034), -?Protected communications; prohibition of retaliatory personnel actions,? which is implemented by BOB Directive 7050.06, ?Military Whistleblower Protection.? V. FINDINGS AND ANALYSIS A. Did Complainant make a protected communication? Yes Communication to Chain of Command We found that Complainant made numerous communications to his chain of command of substantial and speci?c dangers to public safety. Complainant ?rst voiced concerns regarding the C2A1 ?lter and its impact on ?ight safety to 149th FS leadership and on December 2, 2011, the Friday evenin_ before his December 3-4, 2011, Air National Guard drill assembly. along with the ?33' determined that the 149th FS would not ?y December 3, 2011, morning missions and decided to seek additional technical information regarding the C2A1 ?lter. On the morning of December 3. 2011 .?v'aAth; . met with the pilors or'the i49th FS. During this meeting, leadership, . implied or verbalized a policy characterized by attendees we interviewed as 7 The T-38 aircraft is used for training pilots. 20121204-000898 5 ?you will ?y or there will be consequences.?8 After the meeting, leadership who were present resolved to seek more information about the safety of the 11-22 with the ?lter; however, General Gilmary Michael Hostage 111, 13.5. Air Force, Commander Air Combat Command (COMACC), deemed the F-22 safe to fly, and the 192d PW leadership decided the . 149th FS would resume 'f??22 ?ights the afternoon of December 3, 2011. Initially, all 192d FW leadership, through their actions and comments, allowed pilots to return to ?ying at their oWn pace. During Complainant?s January 2012 drill assembly, three to four pilots in the 149th FS, including Complainant, decided not to resume their ?ying duties with the Raptor. 2 Mod.9 During the 149th FS February 2012 drill assembly, 192d FW leadership, through the i-"jr; began to enforce the December 3, 2011, or there will be consequences? policy. Must I 49th PS pilots chose to return to ?ying the Complainant continued to voice his concerns: to his chain of command, as evidenced by_a February 12.. 2012, ?re- (It recounting a conversation he had with and My immediate concern is that there will be a Raptor accident because of side effects of breathing liberated carbon from the ?lter causing a cough under and a subs-e. uent GLOC.10 Many pilots have reported this By March 2012, only two pilots, including Complainant, had not resumed ?ying the F?22,ll and 192d PW leadership began to consider its range of disciplinary and administrative options.12 While the leadership assed alono pilot concerns regarding the ?22 (Raptor 2 Mod) to ACC, in calCulus, COMACC was responsible for determining the safety and the ?ight procedures for the F-22, and their responsibility was to maintain Combat Mission Readiness (CMR) within the command. 8 While the exact language used is di?icult to attribute, attendees were left with the clear understanding that they either return to ?ying'the F-22 or there would be consequences. Everyone understood that their safety concerns would continue to be vetted through the appropriate channels, but their duty was to fly. 9 Complainant-?ew on January 7, 2012, but experienced an On Board Oxygen Generating System (OBOGS) failure. He ?ew without the C2A1 ?lter, which was contrary to standing ?ight procedures at that time. 10- G?force induced LoSs 'of Consciousness (GLOC) is a term generally used in aerospace physiology to describe a loss of consciousness occurring from excessive and sustained g-forces draining blood away from the brain causing cerebral hypoxia. The condition is most likely-to affect pilots of high performance ?ghter and aerobatic aircraft or astronauts. GLOC incidents have caused fatal accidents in high performance aircraft capable of sustaining high' for extended periods. ?2 On April 4, 2012, COMACC presented a brief to "Wing and Vice Wing Commanders entitled in which he stated ?that the F22 was deemed safe to ?y and if an aviator refuses to ?y then UCMJ action is the appropriate path and there is no option to tolerate such a refusal.? 20121204-000898 6 Reasonableness of Complainant Belief Complainant was concerned about an accident because of ?the side effects of breathing liberated carbon ?om the ?lter causing a cough under and a subsequent Complainant also articulated concerns, particularly as the number of pilots not ?ying decreased, about the ?lter and its possible short? and long-term effects on himself and other pilots. Complainant?s comments re?ected the views of other -22 pilots; however, the other F-22 pilots either resumed ?ying the -22 or were in a duties not to include ?ying (DNIF) status. Complainant?s belief that the F-22 with the ?lter posed a substantial and Speci?c danger to public safety was reasonable. When the resumed ?ight on September 21, 2011, there were no physical modi?cations to the -22. There also was no root cause determination for the events that caused the safety stand down. The ?lter restricted the ?ow of oxygen to the pilot, and pilots were breathing liberated carbon through pressurized air. Initial responses by the ACC Surgeon General?s of?ce demonstrated there were no studies conducted on-the short- and long-term effects of breathing carbon. Initially, Complainant and his fellow pilots were told that the carbon particle size Was too large to be inhaled into the lungs. Later, evidence would show that the micron size of the carbon particles was, in fact, small enough to be inhaled into the lungs. Additionally, Complainant was a member of a local MPAT and had access to scienti?c and medical views that reinforced his safety concerns about the and the C2A1 ?lter. Sanctioned in December 2011 by FW and 192d FW, this Langley team consisted of medical, safety, and pilot membership including Complainant. Complainant?s participation began in December 2011 and lasted until mid-late February 2012. One of the initiatives was to conduct an anonymous survey among F-22 pilots to try and determine what they were experiencing. Complainant helped develop the survey questions. He contacted approximately 40 F-22 pilots to assist in question development and survey scope. Pilot comments and topic suggestions led the Complainant to believe that many pilots were not reporting their hypoxia-like events to medical personnel and/or did not connect the they experienced to ?ying the F-22. On January 18, 2012, a medical member of the MPAT contacted 3M, the manufacturer of the C2A1 ?lter, who stated that the carbon ?lter was not designed for this type of use in the F-22 and that it was likely breaking down or ?dusting? beyond acceptable levels because of the extreme physical forces being applied to it vibration, positive pressure, etc.). Initially, 3M recommended removal of the ?lter because it was being used outside of its intended parameters. The MPAT also consulted the Navy Experimental Dive Unit and the Naval Surface Warfare Center. Both organizations observed that ~22 pilot performance was likely degraded due to r. lack of respiratory ventilation in response to excessive inhalation resistance. Inhalation resistance was due to the marginal ?ow ?om the F-22 breathing system and was further exacerbated by C2A1 ?lter ?ow resistance. In sum, Complainant gathered information that led him to reasonably conclude that: the root cause of the F-22 hypoxia?like events had not been determined; 0 the use of the C2A1 ?lter was outside its design parameters; 20121204-000898 7 a there had been no research accomplished regarding the impact of the ?lter on pilot ?ight performance or health prior to implementation; and a there were many other. incidents of possible hypoxia-like events that 5-22 pilots did not recognize and-"or report. The insidious onset of a hypoxia-like event presented a clear possibility of a sequence of events that could result in an crash creating a substantial and speci?c threat to the general public. \?thile Complainant was willing to accept the risk of ?ying the F-22 before a root cause d'etenninatio'n, he was not willing to accept the "added risk of ?ying with the ?lter. Substantial and Speci?c Dangers to Public Safety- We considered the following factors in analyzing whether a ?substantial and speci?c? danger to public safety existed: 1. Was the likelihood of harm only speculative or under improbable conditions? 2. Was the harm imminent in the near future or only in the distant future? 3. What were the potential consequences of the harm? I. likelihood QfHarm The safety stand down triok place after a series of hypoxia-like events. Speci?cally, there had been a cluster of four physiological incidents occurring in the. 6-day period tiom April 28 and May 3, 2011. The -22 returned to ?ight on September 21, 2011. Although the Air Force instituted mitigation measures in the form of a pulse oximeter and the ?lter, along with changes in ?ight procedures, it had not yet determined the root cause for the hypoxia-like events. Initially, all F-22 pilots were eager to return to ?ight; however, with hypoxia?like events continuing to occur and new concerns raised by the addition of the C2A1 ?lter, according to a March 7, 2012, email ?'om "will" to members of the NGB: all pilOts (ANG and remain concerned by the continuing incidents and inability to determine a root cause. Our pilots are also concerned by the fact that no one in senior leadership (COMACC, has ever presented them with an they .are being asked-"tasked to- ?y despite the obvious increase in risk posed by this issue. At this point the 192d and FW pilots continue to ?y the aircraft despite continued incidents. Therefore, a preponderance of the evidence established'that it was reasonable to believe that harm was likely to occur. 20121204-000898 8 2. Imminence of Harm It was reasonable to believe that any harm could have been imminent __1en that hypoxia? like events continued to occur despite mitigation measures employed. As 3' stated later in the same email referenced above: Incidents continue. At what point do we reassess the decision to return to Where' Is the threshold to sto - flying versus continue ?ying? Not a day passes where 1? 33 3 I do not think about the potential of losing a pilot and/or an F-22. 3. Potential Consequences of Harm .An F-22 crash would likely result in the loss of both pilot and aircraft. Moreover, in this instance, there are increased consequences of harm given that Langley AFB is located within the Hampton Roads, VA, metropolitan area. In 2010, the Hampton Roads metropolitan area had a population of over 1.7 million. Although the 22 ?ight routes try to minimize ?ight over heavily populated area, if an pilot lost control of the aircraft, he could be over a densely populated area in a very short time. Preparing to Make a Communication to a Member of Congress On or about March 13,2012. Complainant prepared to communicate to a member of Congress when he and? U. S. Air Force, discussed their plans to approach Representative Kinzinger with their concerns regarding the F- 22. Complainant testi?ed he wanted to engage Representative Kinzinger given his belief that Representative Kinzinger was the only active Air Force pilot in Congress and would be well situated to understand the concerns. Making a Communication to a Member of Congress On March 15,2012, Complainant communicated with Representative Kinzinger via an online forum for aviators (http: .baseops .net/) detailing his concerns with the F-22. His initial contaCt was made via private forum communication, with a follow-on conference call to discuss the' issue in greater detail. From March 15 to May 6, 2012, Complainant had approximately 22 telephone conversations with either Representative Kinzinger or members of his staff. 14 13 This point is demonstrated by the April 6, 2012, crash into" an apartment complex in Virginia Beach, VA. The F?l 8 originated from Oceana Naval Air Station. 14 Review of telephone records indicated 25 calls between Complainant and Representative Kinzinger?s of?ce during the relevant time period. Three of these'calls were less than 2 minutes. 20121204-000898 9 Making a Communication to an Inspector General On March 20, 2012, Complainant, through his attorney, contacted the Department of Defense, Of?ce of the Inspector General_(DoD 1G), Defense Criminal Investigative Service (DCIS) of?ce in Columbus, Ohio, regarding Complainant?s concerns with the F-22. On April 5, 201.2, Complainant, through his attorney, transmitted a letter to the same DCIS of?ce regarding Complainant?s concerns with the F-22. On Aprii 6, 2012, Complainant ?led the instant complaint of reprisal ith the DOD Hotline. B. Was Complainant the subject of an actual or threatened unfavorable personnel action or was a favorable personnel action withheld? Yes Title 10 Orders Nor Renewed Complainant had a Title 10 allocation that encompassed ?scal year (FY) 2012 using orders for approximately two 6-month periods. This Title 10 allocation allowed him to work full-time. His initial set of orders expired J-iarch 27, .2012, and has not been renewed. Recommendation for Remo valfrom Promotion Vacancy List 011 April 4, 2012,192d FW initiated action to remov 6 Complainant from the February 2012 [demotion Vacancy list for the On April 6,2012, HI: 111-1211 the oersonnel action to remov Complainant from the promotion vacancy list. in Complainant 5 chain of command with the authority to take such Letter of Reprimand On April 21, 2012, issued Complainant an LOR for not maintaining combat mission ready status by not ?ying the F-22 with the C2A1 ?lter con?guration. Flying Evaluation Board (FEB) On April 21, 2012, ordered the convening of an FEB with Complainant named as the respondent. The FEB noti?cation resented to Complainant on A til. 22. the second day of the drill weekend, C. Did the responsible management of?cial(s) have knowledge, actual or constructive, of Complainant?s protected communication(s)? Yes had no knowledge of Complainant?s protected communications prior to his approving Complainant?s removal from the February 2012 Promotion Vacancy list. 20121204-000898 10 thin ['31 {hi all hadknowledg'e 0f Complainant?s protected communications regarding subsrantial and eci?c danger to public safety. Complainant l: ls} 1_ Til}: i made protected communications directly- to and to others in the command and in his I early as Decemliur 0 . but no Liter than mid-February, 2012. 'and the had regular conversations about Compia'i mm: wit I1 least one of the RMOs. learned of Complainantcommunications then as nm 1 :nmlril t'l'L' relayed through the -, and/him aware nl'lln: issues. filter and pilots: concerns. was aware ofthe 149th FS general concerns in l'lcuelulicr 201-1 aml- more speci?cally. about - . and before thu un lEn-nl'nble wrotected corn munitull inns Personnel actions. null Emma-lentil: trl'llw increased When he i The evidence is clear that ali RiviUs were in consrant communication regarding Complainant and his issues during the March-April 2012 timeframe. Communication to a Member of Congress Complainant began communicating with Representative Kinzinger?s of?ce on March 15, 2012. On March 30, 2012, Representative Kinzinger sent the Secretary of the Air Force a letter in which he stated: It has come to our attention that during this time of uncertainty, many F-22 pilots expressed their concern with the safety of the aircraft and the Onboard Oxygen Generation System (OBOGS). We have also learned that several pilots were noti?ed that they must continue to or separate from the Air Force or Air National Guard. It is troubling, to say the least, that the men and women who are closest to it still do not trust the safety of this aircraft. On April 3, 2012, Representative Kinzinger?s letter reached the Of?ce of the Secretary of the Air Force where it was entered into the Air Force?s Task Management Tracker system. The staf?ng action went to Headquarters, Air orCe/AS (Operations), which re?tasked the effort to the A3 Operations began working'the tasker on April 3, 2012. On April 3, 2012, as part of the staf?ng process, it would have been routine for to seek input from the 192d W15 to address issues in the Congressional tasker. 15 a] - in the 13-22 at Tyndall AFB from March 26 to April 14, 2012. maintained frequent cantact Wll. I 1.. II 20121204?000898 11 Among the issues NGB needed to resolve was whether the Air National Guard was experiencing signi?cant issues regarding the F-22 and if anyone had gone to an FEB within the last 10 years 'ihe testi?ed that although he could not be sure given the passage of time, he believed that he would have called both Langley and Hawaii. the nnlv. two 'Tl ?Iii." Air NatiOnal Guard F-22 units, for their input. He believed that either would have been contacted. The KMOS did not recall whether they had, in fact, been contacted 011 April 3, 2012, regarding this speci?c tasking, and theyeach denied that thev had knowledge that they were providing answers to a letter from Congressman Kinzinger. testi?ed that he did not ?speci?cally recall? providing input to Congressional inquiries on the prior to early May (when the 60 Minutes story aired) but that doesn?t mean that I didn?t.? Each stated in general terms that it was routine for them to provide input in response to F-22 inquiries. On April 16, 2012, Complainant made protected communications to Representative Kinzinger as part of the ?lming of a 60 Minutes episode dealing with the safety of the F-22 aircraft. The episode aired on national television on May 6, 2012. A preponderance of the evidence did not establish that? knew of Complainant?s communication to a member of Congress prior to administering an}- personnel actions. Communication to an Inspector General We found no evidence that had knowledge of Complainant?s protected communications to the 1301316 prior to taking the unfavorable personnel actions. .. D. Would the same personnel action(s) have been taken against Complainant absent the protected communication(s)? Yes - We found that would have taken the personnel actions against Complainant absent his protected communications. We examined several factors to determine whether Complainant?s protected communications were factors in the decisions to not renew his Title 10 Orders, to remove him from the February 2012 Promotion Vacancy list, to issue an LOR, and to send him to an FEB. Speci?cally, we considered and analyzed the stated reasons for the personnel actions, the timing between the protectedcommunications and personnel actions, whether the RMOS had motive to reprise, any animosity expressed by the RMOS regarding the protected communications, and whether the personnel actions indicated disparate treatment as compared to other similarly situated individuals who made protected communications but returned to ?ying. 20121204-000898 12 RM Os Stated Reasons for Personnel Actions PA Title 10 Orders Complainant?s ?ight status chan - _ed to non-CMR (N -CMR) on February 1, 2012. 11111111111111? to take some form of 111117111 decided, after discussion with' administrative. and/or disciplinary action against Complainant in mid-March 2012. reached this decision when they determined that Complainant was unlikely to ?y the with the Raptor 2 Mod. In order to take action, Complainant needed to be in a Title 32 status vice Title 10. In late March or early April 2012, while researching Complainant? status, HH HH discovered that Complainant had a Title 10 authorization for FY 2012 but that 11: 1 1111'}. 1: hj1 :1 his Title 10 orders expired on March 27, 2012. with the agreement and direction of HH HH stopped any action to issue Complainant new Title 10 orders for the rest of his Title 10 authorization. PA Recommendation for Removal from Promotion Vacancy List initiated a request to remove Complainant from the February 2012 Promotion Vacancy list on April 2012. He cited in his originating memorandum Complainant?s failure to perform his rlmary duties as an F-22 pilot in that he re?lsed to perform his assigned ?ying believed that promoting Complainant would implicitly condone his failure to perform his required duties and thereby undermine the good order and disci 1 line of the G. In addition to the justi?cation cited in the originating memorandum, testified he also relied on the fact that Complainant ?ew without the C2A1 ?lter on January 7, 2012, demonstrating a ?lack of of?cership and a lack of integrity.? and concurred with the action to remove Complainant from the February 2012 Promotion Vacancy list. He approved of HH HH proposed action, endorsed the memorandum, and forwarded the recommendation on April 5, 2012. HH consultedH and concurred with the action to remove Complainant from the February 2012 Promotion Vacancy list. PAS #3 and Letter of Reprimand and Flying Evaluation Board stated that he ?rst started considering an LOR appropriate' in mid-March 2012 but did not return to ?ying the F-22. The counseling sessions oi up: 11 5 and 11, 2012, were designed to force Complainant to decide whether he would return to ?y the F-22. HH HH HH decided to issue the LOR when Comnlainant did not return to ?ying after the April 11, 2012, counseling. stated that the .Each was consulted about the LOR and HH stated that his reason for convening the FEB was because of Complainant?s refusal to maintain his combat readiness status, return to This rationale extended to his advice and support of the decisions not to renew Complainant?s Title 10 orders, recommendation 20121204?000898 13 for removal from the February 2012 Promotion Vacancy list, and Letter of Reprimand. According to "Hi 5 Complainant refused to ?y the F-22 despite determination that the F-22 was ?deemed safe? to meek convene the FEB resided with 1??er We? . Each was consulted about convening an FEB and concurred that it was an appropriate action. 'lhe LOR was issued on April 21, 2012- In addition to re rimanding Com lainant, it stated the following: I'lit- L-UR did n01 specify a date by which Complainant must regain his status the 1 Fill speci?ed that Complainant had until May 5, 2012,1n irnt'ide a res unse. l'tun ilainant the FEB noti?cation on April 22, 2012. believed that Complainant would likely have returned to ?ying the ?22 upon removal of the ?lter. Yet, when on A_r1126. 2012. the C2A1 ?lter was removed from the ?ight con?guration, after consulting With WW1 decided to allow the LOR to remain. stated that he supported decision to allow the LOR to remain because he was concerned about settin_ a ?dan_erous precedent? by allowing a pilot to dictate the ?ight con?guration of an aircraft. also decided to allow the FEB to proceed. For both the LOR and FEB he believed it to be important for the perception that the Air National Guard be seen to maintain the same discipline standards that their active duty counterparts maintained. I Timing between protected communication and personnel action t: {1.111171 knew of Complainant?s protected communications regarding the speci?c threat to public safety beginning in December 2011. learned of Complainant?s protected communication re ardinq the ecific threat to public safety in February and March 2012, respectively. denied knowledge about the March 13, 2012, preparation and subsequent protected communications to Representative Kinzinger; however, all were aware between April 6-10, 2012, that two pilots were believed to be taking their concerns with the F-22 outside the command, to 60 Minutes. The actions were taken in the following order: 0 On February 1, 2012, Complainant became On or about February 11, 2012, 1.111th counseled Complainant that he ?needed to ecide iflhej wanted to 1y the E-continue in a different line of work.? . On March 14, 2012, WW WW counseled Complainant on his Status. - On March 27, 2012, Complainant?s Title 10 orders expired. 20121204-000898 14 . On April 4, 2012, ?m 'Ili'w' signed the memo requesting Complainant?s removal from the promotion vacancy list. 0 On April 6, 2012, Complainant was removed from the promotion vacancy list. (hm I to return rilL'if On April 21, 2012, the LUK was issued to Complainant. 1 On April 22, 2012, the FEB noti?cation paperwork was served on Complainant. RMOS Motive to Reprise I1 command was involved in a total force integration mission in which the 192d PW linked hot]; aerations' and maintenance with the 1st W, an active duty wing. [h'l'llL were concerned about their unit?s integration with the active duty component and h0w they were perceived by them. ACC had deemed the 22 safe to ?y with the Raptor 2 _.Mod Complainant not ?ying the 22 had the potential to cast the 192d 1n an unfavorable light and impact thel 92d relationship with the active duty component. However, the issues with the 22 were widespread and extended to other units, including active duty ones. For example, beginning on February 15, 2012, Joint Base Elmendorf?Richardson, AK, experienced four hypoxia-like events Within a 2-week period. [Iii] (fill. 1:51] {1711124 Additionally, as evidenced in section A of this report, was concerned with the lack of a root cause determination and voiced his concerns to his higher chain of command with no repercussions. RMOS Animosity Related to the Protected Communications actions were based on their view that Complainant?s N-CMR status represented a command disciplinary issue. According to their decision matrix, the safety issue regarding the C2A1 ?lter fell under the purview of ACC. In March 2012, ACC started to focus on those commands with pilots who were not ?ying. was on the front line of the 192d FW pilots? concerns about the C2A1 ?lter and its potential impact on the safe operation of the F-22 and the potential impact on the pilots from December 2011 until mid-March 2012. From December 2011 to mid- January 2012, Complainant, under the auspices of the MPAT, assisted 1n assembling a 106-question survey for F-22 pilots. This survey spotlighted the serious health concerns that F- 22 pilots were experiencing, includin_ vertio intermittent and persistent headaches, nausea, coordination, and motor skill problems. 'f acknowledged the seriousness of the health and safety lssues raised by the survey. '1 1' was also concerned about the repercussions for the Air National Guard if the prop0sed survey was leaked to the media. He told Complainant that his job was to ?y and that he needed to trust in leadership and stay out of the investigation process. 20121204-000898 15 In March 2012. because of the 5 total force integration. about how his command was percei1 ed by the acti1 duty components In late March 20i2. gradual presSure from ACC culminated in an .?April 4, 2012, briefby COVI ACC. which attended. brief stated,? if an aviator professes a refusal to action 'is the appropriate path and you do not 11211 the option to tolerate such a refusal." The brief later re?emphasized the point b3 stating, ?Again, 3ou do not ha1 the pre1ogati1' of allow mg an indi1idua1 to not ?y ithout facing the pros cribed [sic] repercussions.? actions were based on his 1' iew that Complainant?s CMR status represented a command disciplinar3' issue once the F-22 was? ?deemed safe? by ACC. He took this position despite his own personal misgivings about the safety of the. -22 and the C2 Al ?lter. 11 ere concerned about Complainant N- CMR status and its impact upon the 192d H1 good odor and discipline. According to I?m not some isolated guard unit back in Richmond that, you know, at the end of the day the only people that have to live with this are the people inside the Virginia Air National Guard. I?ve got two other squadrons that we ?y with. I have the First Fighter Wing, but they have their people and there was all this guidance . that came down from COMACC about what you will and will not do. It?s important for everybody to see that we maintain the same discipline standards that they maintain. I might do it on a different timeline than they do, but it?s important that they see that we hold people to that standard. testi?ed that they also factored in Complainant?s actions on January 7, 2U 12, 11 hen he ?ew without the C2 .A1 ?lter and the method b3 11 hich he obtained unauthorized equipment in order to ?13 111thout the ?lter Com lainant? actions in obtaining the unauthorized equipment concerned because they believed Com 1 lamant misled enlisted personnel. In summarizing his rationale for the personnel actions, testified: I don?t agree with everything and the way [Complainant] has done some of the things he has chosen to do. But we are all individuals. The only choices that I have issue with with him. are the fact that he wouldn?t dohis duties. rand] the 7 January incident are reaily the two that as I feel that Ihad to and have to address. 20121204-000898 16 The lb} ll-T'l 11:; Sti? I just wanted to know why he [Complainant] needed it because you can?t ?y with it no more, which he told me he just wanted to check some things out on it, which I would never have a reason not to trust him or think he was going to ?y with it, so I gave it to himAccordin_ to the Joint Forces Headquarters, Virginia Air National Guard were main] concerned about Complainant?s failure to maintain in {1:31. 12 1. I: in; I his CMR status and his refusal to The also asserted that their motives were not in reprisal for any issues Complainant raised regarding safety. Disparate Treatment of Complainant All 149th FS pilots present at the squadron meeting on December 2, 2011, had safety concerns regarding use of the ?lter and its impadt on ?ight safety, and the voiced those concerns to 149th FS leadership. On December 3, 2011, ACC and articulated the ?you will ?y or there will be conSequences? policy, and ACC reaf?rmed that the F-22 was safe to Subsequently, 192d FW leadership, through their actions and comments, allowed pilots to return to ?ying the F-22 at their own pace, such that during the 149th FS January 2012 drill assembly, three to four pilots in the 149th FS, including Complainant, decided not to resume their ?ying duties with the Raptor 2 Mod. Howver. during the I49th FS February 2012 drill assembly, 192d FW leadership, through the began to enforce the December 3, 2011, or there will be consequences? policy. Most 149th FS pilots chose to return to ?ying the -22. Those who resumed ?ying the F-22 despite their ongoing safety concerns did not experience any unfavorable personnel actions. By March 2.012.. onlv two pilots. including Complainant. had not resumed ?vimz the -22. I'ln ?will 14.1 discuss ("um tiniumn. ?rrm'tiing 1o 20121204-000898 17 [It] [31-117] (in consultation with chose not to seek an operatiOnal waiver to permit Complainant to ?y withotit the ?lter. No personnel action was taken against any pilot who raised safety concerns yet returned to ?ying and maintained CMR status. As described above, a preponderance of the etiidenCe established that administered all the personnel actions because of Complainant?s Status and its effect upon the good order and discipline of their unit. VI. We conclude: If. I: it I: ,1 did not reprise againSt Complainant for his protected communications when he did not grant Complainant the favorable personnel action of renewing his Title 10 orders. lacked knowledge of all protected communications and, therefore, did not reprise against Complainant for making prorecred communications. C. did not reprise against Complainant for his protected communications when they signed and forwarded a recommendation to remove Complainant from the February 2012 PromOtion Vacancy list. . D. did not reprise against complainant for his protected communications when he issued an LOR to Complainant. a 15-. 1.. _1 did net reprise against Complainant'for his prOtected communications when he convened an FEB for Complainant. VII. We make no recommendations in this matter. Case: 20121204-000898 DEPARTMENT OF DEFENSE I INSPECTOR GENEFHRL 43% Mark Cantu-1' Drive Alexandria. Wk 2235fh- I Th?l't'rr?t? ml int En? nrl'lr'lhl I I I'll?Inl?