PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 March 1999                  
	DOCKET NUMBER:   AC98-12337
				   AR1998012670

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Kenneth L. Wright		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, correction of his military records by modifying two Officer Evaluation Reports (OERs) to eliminate false and adverse ratings and comments or by invalidating and removing from his records those two OERs; removing from his personnel records all false and adverse information; that those soldiers who displayed extraordinary moral courage while serving in the Texas Army National Guard (TXARNG) receive the appropriate awards; that he receive back pay, retirement benefits and other compensatory measures caused by his involuntary and inequitable relief and transfer from the TXARNG to the Individual Ready Reserve (IRR); and that he be reconsidered for promotion to Brigadier General.  (NOTE:  The Board will only address the applicant’s request.  The other TXARNG members, if they have not submitted an application to this Board, may apply if they believe an error or injustice exists in their individual cases.)

3.  The applicant states, in effect, that the two OERs were prepared as retribution for his performance as a company commander in implementing the Army’s Equal Opportunity Program and for his attempts to bring illegal and unjust actions by senior officers and non-commissioned officers (NCOs) to the attention of his superiors.  He was illegally transferred out of the TXARNG and later TXARNG officers conspired to keep him out of Troop Program Unit (TPU) assignments and attempted to discredit his reputation and good name.  As a result he lost assignment and training opportunities for approximately 600 days between November 1979 and May 1986.  He was not selected by the 1998 U. S. Army Reserve General Officer’s Selection Board for promotion.  The next selection board meets in January 1999.  His mandatory removal date is 9 July 2000.

4.  The applicant’s military records show that he was inducted into the Army on 22 May 1969 and was discharged on 25 July 1969 for the purpose of attending Officer Candidate School (OCS).  He attended OCS from 26 July 1969 – 2 April 1970, was ordered to active duty as a commissioned officer on 3 April 1970 and was released from active duty, in the grade of First Lieutenant on 2 April 1972.  He transferred to the Texas Army National Guard on 29 May 1973.  

5.  The applicant was promoted to Captain effective 18 June 1975.

6.	The first contested OER is a change of duty report for the period 1 February 1978 through 31 December 1978.  The applicant’s duty title was Assistant S-3 Air.  The rater checked “needs some improvement” in part IVa8 with a matching negative comment in part IVb.  In part V (Demonstrated performance of present duty), his rater and indorser rated him as “superior,” out of a range from a low of “Inadequate” to a high of “Outstanding.”  In part VIb (numerical rating for Potential), his rater and indorser rated him as “Promote …ahead of contemporaries,” out of a range from a low of “Not promote this officer” to a high of “Promote this officer immediately.”  The rater included negative comments in part VIIa.  His copy of the report was not forwarded to him until 31 January 1980.

7.  The second contested OER is a change of rater report for the period               1 January 1979 through 31 October 1979.  The applicant’s duty title was Company Commander, Airborne Infantry Rifle Company.  The rater checked “needs some improvement” in part IVa12 with matching negative comments by his rater and indorser in parts IVb and IVc.  In part V, his rater and indorser rated him as “superior.”  In part V, his rater rated him as “Promote …ahead of contemporaries” and his indorser rated him as “Promote …with his contemporaries.”  Both the rater and indorser included negative comments in parts VIIa and VIIb (the rater including a continuation sheet).  His copy of the report was not forwarded to him until 28 October 1980.  (NOTE:  The copy of the OER in the applicant’s Official Military Personnel File (OMPF) has been administratively modified.  The continuation sheet is not filed (continuation sheets are not authorized for change of rater reports) and the statement “SEE CONTINUATION SHEET” in part VIIa has been whited out.)

8.	The applicant’s OER for the period immediately preceding the first contested report contained no negative comments.  The rater and indorser for this report were the same as for the second contested report.

9.	The applicant was honorably discharged from the TXARNG effective               16 November 1979 in the grade of Captain.  His NGB Form 22, Report of Separation and Record of Service, lists the reason as resignation.  A memorandum dated 19 November 1979 noted that the Adjutant General of Texas was requested to administratively discharge him effective 16 November 1979 since he had made no response to a request for his resignation.  There is no corrected NGB Form 22 on file.  His Federal recognition was withdrawn at the same time.  He was assigned to the Ready Reserve. 

10.  The applicant appealed the first contested OER in 1981.  The U. S. Army Reserve Components Personnel and Administration Center (RCPAC) amended the OER to adjust the rating period but found insufficient evidence to substantiate clearly and convincingly that it was an inaccurate appraisal of his actual performance or that the rater’s evaluation was not objective.  He appealed it again in 1985.  RCPAC referred this appeal to the National Guard Bureau (NGB) due to his membership in the TXARNG during the period in question. The NGB found that the material enclosed with the appeal did not meet regulatory requirements and returned it to the applicant without action.

11.  There is no evidence the applicant appealed the second contested OER.

12.   He was promoted to Major effective 17 June 1982.  

13.  The applicant filed suit in the United States District Court requesting basically those points he requests from this Board.  On 28 March 1985, that Court dismissed the complaints.  That Court noted among other things that he had failed to seek review by this Board.

14.	 The applicant was reassigned to a TPU, the 75th Maneuver Area Command (MAC) effective 20 May 1986.  He provides statements from two individuals who state that they knew that every time members of the TXARNG learned of his application for a vacant position with the 75th MAC, they would do their utmost to convince the respective chiefs to withdraw the assignment offers.  

15.	 He was promoted to Lieutenant Colonel effective 16 June 1989.  A memorandum from the Total Army Personnel Command, St. Louis, MO to the applicant, dated 1 October 1993, notified him that he was non-selected to Colonel.  He was promoted to Colonel effective 22 May 1995.

16.  During the applicant’s retirement years from 1974 through 1978 he earned an average of 107 retirement points per year.  During the retirement years from 1980 through 1985 (the six full years that he alleges the TXARNG conspired to prevent him from obtaining a TPU position) he earned an average of 51 retirement points per year.  During the retirement years from 1987 through 1992 (the first six full years after he obtained a TPU position) he earned an average of 121 retirement points per year.

17.  Army Regulation 623-105 prescribes the officer evaluation reporting system of the U. S. Army.  The regulation in effect at the time defined an adverse report as one containing any of the following:  A report containing a “no” response in Part IVa; a report resulting in a rating of “marginal” or “inadequate” in Part V; a report resulting in an appraisal to “promote this officer…behind his/her contemporaries” or “not promote this officer” in Part VI.  A “deficient” or “relief for cause” report was also defined as adverse.

18.	Army Regulation 623-105 also provides that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity. 

19.  National Guard Regulation 635-101 prescribes the criteria and procedures for determining the capacity and general fitness of commissioned and warrant officers for continued Federal recognition in the Army National Guard.  In pertinent parts, it provides that Federal recognition should be withdrawn from an officer for incapacity when, for example, he shows a downward trend in overall performance, shows a failure to exercise necessary leadership or command required of an officer of his grade or fails to discharge assignments in a manner to be expected of an officer of his grade and experience.  If the area commander determines that sufficient basis exists to initiate action for withdrawal of Federal recognition, the officer must be notified and offered to show cause for retention before a board of officers; submit a resignation in lieu of withdrawal of Federal recognition; or elect transfer to the Retired Service.  If the officer does not respond, a board of officers must be appointed to proceed in the absence of the officer.

20.  Texas Army National Guard Regulation 635-100 provides that officers who are substandard in performance of duty or conduct, deficient in character, lacking in professional qualifications or statues, or otherwise unsuited for continued military service may be administratively discharged.  Commanders may request the resignation or administrative discharge of individual officers due to these reasons.  In the event a resignation is not received by the date requested, a request for administrative discharge with due notice to the officer involved may be submitted to the Adjutant General of Texas.  An individual may appeal to the Adjutant General for a review of his case.  The Adjutant General may appoint a board of officers to investigate the appeal.

21.  The DOD Directive Number 7050.6, dated 20 November 1989, covered the Military Whistleblower Protection provisions (Title 10, U. S. Code, section 1034).  This directive was reissued on 3 September 1992.  The directive indicates that it is DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation or law enforcement organization; that members of the Armed Forces shall be free from reprisal for making or preparing to make lawful communications to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; and that no employee or member of the Armed Forces may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a lawful communication to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization.  (Note:  This directive was reissued on 12 August 1995 to include specific other complaints as protected communications and expand the scope of persons and activities to whom a protected communication could be made.)
22.  The Courts have determined that the Army Board for Correction of Military Records cannot compel a state National Guard to make corrections to an applicant’s state records.  However, the Board may correct the applicant’s federal records. 

CONCLUSIONS:

1.	The Board supports the DOD policy of unrestricted communication with Congress, the IG’s and various Government investigators, etc, as well as the protection from reprisal against those who make or prepare to make such communications.  When such reprisals occur, they constitute an injustice of the sort the Board was created to correct.  Since the applicant’s allegations of reprisals occurred prior to the enactment of the Whistleblower Act he does not qualify as a “whistleblower.”  Accordingly, his case was considered by this Board, not as a whistleblower case, but as any other application submitted to the Board alleging error or injustice as provided by Title 10, U. S. Code, section 1552.  

2.	The Board believes the applicant was the victim of reprisals even though the Whistleblower Act was not yet official policy.

3.  An OER is presumed to reflect the considered opinion of the rating officials.  The indorser’s evaluations must be independent of the rater’s.  It may or may not agree with the rater’s, but disagreement does not invalidate the rater’s evaluation or comments. 

4.  The applicant’s own chronology of events during the rating period for the first contested report indicate that his rater wrote him a “constructive counseling” letter (19 May 1978); lost his temper at him and said he was disloyal (13 August 1978); and non-selected him for a higher position because he did not trust him and that his rater hated him (16 August 1978).  While these incidents show that his rater may have shown poor judgment by acting unprofessionally, they would not ordinarily offer conclusive proof that his rating was accomplished as an act of retaliation for the applicant’s attempts to bring fraud and abuse to the attention of his superiors (which by his chronology of events began after this rating period ended) or were other than his considered judgment of the applicant’s performance of duty and potential.  However, the Board notes this OER was not completed by the rater until May 1979, after the applicant began his attempts to bring fraud and abuse to the attention of his superiors (e.g., supporting his First Sergeant in pressing an investigation of technician irregularities and recruiting fraud and for protesting to superior officers that an investigation of alleged corruption in the TXARNG was mishandled).  It raises justifiable suspicions, given later events and allegations concerning the rater, that the OER may very well have been prepared in retaliation for his activities.  The Board finds no problem with the indorser’s section of this OER.  Both the numerical ratings and the comments are in line with the applicant’s previous OER.

5.  There is an injustice in regards to the second contested report.  In accordance with Army Regulation 623-105, it is clear that the OER ending date 31 October 1979 was a relief for cause report.  The indorser commented in part VIIb:  “This failure to support command decisions led directly to the replacement of ___ as Company Commander…”  This comment clearly states that the officer’s performance led to his removal.  Therefore, the OER should have been a Relief for Cause report and not a Change of Rater report.  A Relief for Cause report would have required mandatory referral to the applicant for comment.  It was not referred to the applicant; it was not even forwarded to him until almost one year later.

6.  The applicant also provides ample evidence to show that he made numerous attempts to get his chain of command to act upon the various incidents of fraud, discrimination and other criminal activities he discovered while he was a company commander.  His charges of widespread corruption in his unit and the entire TXARNG have been fully supported by outside investigations.

7.  The Board believes that the second contested OER, which led to his discharge from the TXARNG, was a result of his attempts to inform his superiors of perceived fraud and abuse.

8.  Court rulings have held that this Board’s authority over state National Guard matters is limited.  However, the Board has the authority to make determinations, about the legality/illegality of the applicant’s non-selection to a higher position solely because his rater did not trust him, only to the extent they affect the applicant’s federal records.

9.  There is no “adverse” information in the applicant’s OMPF other than these two OERs.  The applicant’s OER appeals are not even filed.  No document pertaining to his discharge from the TXARNG is on file except for his NGB Form 22.

10.  The Board also believes that the applicant was illegally discharged from the TXARNG.  When a command decision is made that an officer no longer meets the standards for continued Federal recognition, National Guard Regulation   635-101 states that if an officer fails to respond to a request to resign, a board of officers must be appointed to consider his case in his absence.  Texas Army National Guard Regulation 635-100 changes this requirement from “must” be appointed to “may” be appointed.  However, it also states that an officer must receive due notice of a request for his administrative discharge.  The unit’s request for the applicant’s discharge is dated 19 November 1979, three days after he was discharged.

11.  The Board does note that the applicant’s NGB Form 22 on file in his OMPF shows an incorrect reason for discharge (“resignation” vice “administrative discharge”).  Once again, the Board’s authority over state Army National Guard matters is limited and so it cannot order the TXARNG to correct this record.  However, this error does not make the document “adverse” and may even be less prejudicial to the applicant than the correct reason for discharge would.

12.  The Board believes that the applicant lost the opportunities to accumulate the number of retirement points he was accustomed to accumulating both before the six-year period he was unable to obtain a TPU assignment and after this period.  Two statements written more than ten years after the fact would not normally be sufficient to show that members of the TXARNG conspired for six years to keep the applicant from obtaining a TPU position with the U. S. Army Reserve.  However, this case is not ordinary.  The Board again notes the suspected corruption and venality of certain senior officials of the TXARNG (e.g., one of his senior raters was removed from the post of overseeing the Guard’s drug interdiction program due to possible involvement with drug smugglers (his brothers).  Also, one of this senior rater’s homes had been seized by the Drug Enforcement Agency as being purchased with drug proceeds) during this time frame.  The Board believes that high-ranking TXARNG members did conspire to prevent the applicant from obtaining a TPU position as retaliation for his efforts in exposing that corruption.  Prior to this six-year period he earned an average of 107 retirement points per year; after this six-year period he earned an average of 121 retirement points per year.  The Board believes he would have earned at least the average of these two periods had he not been unduly and unlawfully hindered from obtaining the TPU positions he sought after his discharge from the TXARNG.

13.  The Board believes that the applicant’s contested OERs may have been a deciding factor in his being non-selected for promotion to Colonel in 1993 and in his being non-selected for promotion to Brigadier General in 1998.

14.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by: 

     a.  removing from the applicant’s OMPF the OER covering the period             1 January 1979 through 31 October 1979 and placing an appropriate nonprejudicial statement explaining the absence of the aforementioned evaluation report in his records;

     b.  amending the applicant’s OER covering the period 1 February 1978 through 31 December 1978 to delete all portions completed by the rater or pertaining to the rater’s evaluations; and

     c.  returning to this Board for permanent filing the proceedings of the Board and all documents related to this appeal following completion of the administrative corrections directed herein in accordance with paragraph 21e, Army Regulation 15-185.

2.	That, following administrative implementation of the foregoing, his records be submitted to duly constituted special selection boards to Colonel and to Brigadier General.

3.	That, if he is selected for promotion, he be promoted and assigned an appropriate date of rank.

4.  That the Retirement Points Accounting System be corrected to show the applicant’s retirement points for his retirement years ending 8 July 1980/1981/1982/1983/1984/1985 as 114 for each of those years.

5.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

__FKM__  __MW___  __KLW__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred K. McCoy
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-12337/AR1998012670	
SUFFIX		
RECON		
DATE BOARDED	19990310	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	111.00	
2.	131.00	
3.	135.00	
4.		
5.		
6.