PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            29 June 2000                  
	DOCKET NUMBER:   AR1999015728

	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. Carl W.S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Melvin H. Meyer		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 that an NCO Evaluation Report (NCOER) for the period June 1995 through November 1995 be expunged from his records.  He notes, in effect, that the adverse report was rendered as a result of reprisals for raising issues of range safety outside his chain of command.  In support of his request he submits several statements from fellow soldiers who essentially confirm the applicant’s contention that there were safety violations occurring at Dona Ana Range, Fort Bliss, Texas, that the applicant was not disrespectful to members of his chain of command, and that the applicant was an excellent NCO.

3.  Records and documents available to the Board indicate the applicant entered active duty in May 1980 and has served continuously.  He was promoted to pay grade E-7 in July 1994 and has been recognized with numerous awards and decorations, including one Meritorious Service Medal.  With the exception of the evaluation report in question the applicant has consistently received the highest rating on his performance reports and exceeded the course requirements for the Active Duty Drill Sergeant Course in 1991.

4.  In May 1995 he was performing duties as the Senior Range Safety Inspector at Fort Bliss, Texas when he was selected to become the NCO in charge of range operations at Ft. Bliss Dona Ana Range Complex.  The performance report (9405-9505) rendered at the time his duty position changed was excellent.  His rater noted the applicant exercised sound judgement, was an acting first sergeant for three months, and rewarded and punished soldiers with equality.  His senior rater, who was also his senior rater on the evaluation report in question (9506-9511) noted the applicant “seizes the initiative to accomplish the mission” and rated his overall performance and potential in the top block.

5.  The applicant related that on 20 July 1995 he spoke with his unit first sergeant about a specific issue associated with his mission at the range complex and indicated the first sergeant told him “to drop the ball on one of [his] missions.”  The applicant disagreed with that decision and chose to speak with his Battalion Command Sergeant Major (CSM).  He noted in a self-authored statement that his intent in going to the Battalion CSM was to express issues “to improve the safety of training areas for troop use….”  Because the Battalion CSM was not available he spoke with the Battalion Commander.  After the Battalion Commander spoke with the applicant’s unit commander the applicant was counseled for “jumping [his] chain of command.”

6.  When conditions did not improve the applicant filed a formal complaint with the Fort Bliss Inspector General on 17 August 1995 and on 22 August 1995 he was counseled by the Battalion CSM “concerning [his] loyalty.”

7.  In November 1995 the applicant indicated he was counseled following an incident in which his unit commander and first sergeant believed he had been disrespectful and shortly thereafter he was removed from his position at the range complex and the evaluation report in question was rendered.

8.  The June 1995 through November 1995 evaluation report (which was not finalized until January 1996 and was reported as a “change of rater” report) noted that the applicant “failed to keep chain of command informed of his actions” and that he “disregarded commanders instructions.”  The rater indicated that the applicant needed to “improve communication skills when dealing with superiors” and that he did not “deal with authority well.”  The rater stated that his overall potential for promotion and/or service in positions of greater responsibility was marginal.  The applicant’s senior rater rated his overall performance and potential as fair and stated that he “could not be relied on to make sound decisions, counseling failed to alter his disregard for command authority, displays immature behavior for his age and rank” and that he had “limited potential due to existing temperament.”

9.  The applicant was reassigned to duties as the Assistant Operations Sergeant following his removal from the NCOIC, Range Operations position.  He remained assigned to the same battalion.  An evaluation report rendered in February 1996 noted that the applicant “always tells the truth, regardless of repercussions” is “totally committed to team and unit goals” and “extremely loyal to supervisors and subordinates” and that he “preached and practices safety at all times.”

10.  The applicant initially submitted a complaint to the Department of Defense Inspector General in December 1995, prior to receipt of the NCOER in question.  In January 1996 the applicant contacted the Department of Defense Hotline, alleging that he had “suffered reprisal actions from [his] chains of command at Fort Bliss, Texas, for reporting safety issues to the local Inspector General.”  In January 1998 the DOD Inspector General informed the applicant that an investigation into his “allegations of whistleblower reprisal” had been closed.  The DOD IG indicated that they agreed with an Army investigation that his July and November 1995 “counseling and NCOER were not issued in reprisal and would have occurred absent [his] protected communications.”  They did, however, conclude, unlike the Army investigation, that the counseling statement rendered by the applicant’s Battalion Command Sergeant Major in August 1995 was a result of reprisal “because he reprimanded you for going to outside agencies” and concluded that the 26 July counseling by the applicant’s unit commander, although “not in reprisal” was “inappropriate.”  (Note:  None of the mentioned counseling statements were available to the Board.)

11.  The applicant appealed the DOD IG findings but was informed in October 1998 that “absent any direct, compelling evidence…the NCOER was not rendered in reprisal.”

12.  The applicant also appealed the evaluation report to the Enlisted Special Review Board (ESRB) which twice (once based on the applicant’s petition and once based on the Board’s request for an advisory opinion) “determined the evidence does not justify altering or withdrawing the report.”  The ESRB summary noted that as part of their investigation the applicant’s rater and senior rater were contacted.  The rater said “the appellant made it clear he was unhappy with a civilian as his supervisor.  Since he [the applicant] did not accept him as his rater, the appellant would by-pass him and go directly to the senior rater, thereby failing to keep him abreast of all situations.”  The rater noted that “the appellant was an excellent role model in appearance, but lacked in professional attitude.”  The rater stated the senior rater counseled the applicant verbally and in writing, on his behavior and attitude and that “the evaluation was not a retaliatory gesture against the appellant, but an assessment based on his performance, behavior, insubordination to superiors, and communication skills with his supervisor.”

13.  The senior rater related to the ESRB that the “appellant was painful to work with” and that “he had an impeccable appearance, however, his disposition and attitude were undesirable.”  The senior rated noted the applicant would complete “some missions with reservations and was disrespectful to his superiors…was selfish and caused dissension in the unit….”  The senior rater “felt the appellant was self-seeking and failed to share his knowledge and experience with others which ultimately reduced the morale of the company.”  The senior rater said the applicant was counseled on “numerous occasions, verbally and in writing, by him, the 1SG, and CSM.”  He said the “report was fair, and the bullet comments and ratings reflect his performance and behavior.”

14.  Included with the applicant’s petition to this Board was a statement from the soldier who assumed the applicant’s duties as NCOIC of range operations, following the applicant’s reassignment.  The statement appears to have been part of the applicant’s NCOER appeal to the ESRB.  The author of the statement noted that after the applicant “was relieved and I was appointed NCOIC of range control, my command told me very bluntly that, if I “rocked the boat” like [the applicant] had, I would find myself relieved and my career ruined as well.”  On 
24 April 1998 officials within the Department of Defense Inspector General, at the applicant’s legal advisor’s request, conducted a sworn, taped interview by telephone of the author of that statement.  The summary of the interview noted that the applicant’s replacement was told “if he did the same thing as [the applicant] the same thing would happen to him.  They said his career would be ruined and he would be released.”

15.  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 again 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.)

16.  The foregoing directive also provides that a member or former member of the Armed Forces who has filed an application for the correction of military records alleging reprisal for making or preparing a protected disclosure may request review by the Secretary of Defense of the final decision on such application.  The request for review must be in writing and include the member’s name, address, telephone number, copies of the application to the Board and the final decision of such application, and a statement of the specific reasons that a member is not satisfied with the decision.  A member or former member of the Armed Forces must file the request for review of the final decision within 90 days of receipt of the decision.  The decision of the Secretary of Defense is final.  Requests based on factual allegations or evidence not previously presented to this Board shall not be considered.  New allegations or evidence must be submitted directly to the Board for reconsideration under procedures established by the Board.

17.  Army Regulation 20-1 provides, in pertinent part, that anyone (military, DA civilian, family member, or private citizen) has the right to register complaints orally or in writing with an Army IG concerning matters of DA interest.  In exercising this right, the complainant will be free from restraint, coercion, discrimination, harassment, or reprimand.  Soldiers will be encouraged to discuss their problems or grievances first with their commanding officers, as provided by Army Regulation 600-20.  However, persons desiring to submit a complaint directly to an IG at any level, but who do not wish to discuss the matter with their commanding officer or other members of the chain of command, will be permitted to do so.  Any type of disciplinary or other adverse action taken against an individual for registering a complaint, except when fraudulently made is prohibited. 

CONCLUSIONS:

1.  With the exception of the evaluation report in question, the evidence confirms the applicant was an outstanding soldier and had an exceptional track record as evidenced by his numerous awards and decorations and his consistently high performance evaluation reports.

2.  The Board notes that the applicant’s senior rater, on the report in question, had previously rated (9406-9505) the applicant in the top block for overall performance and potential and then in just 6 months found his performance and potential to be only fair.  Clearly such drastic differences in ratings by the same individual tends to support a conclusion that one of the ratings may not have been an accurate or impartial evaluation of the applicant.

3.  While the DOD IG has concluded that the report in question was not rendered in retaliation for protected communication it also concluded that at least one of the applicant’s counseling sessions was retaliatory and one was inappropriate.  The Board contends that although the report may ultimately not have been retaliatory in nature, the comments made by the individual who assumed the applicant’s duties as NCOIC of Range Operations after the applicant’s departure, and the language used in the evaluation regarding the applicant’s interaction with the chain of command, did create at least a perception that the report may have been rendered, at least in part, as a result of the applicant’s protected communication with the Fort Bliss Inspector General and his discussion with his Battalion Commander.

4.  Given the perception created by the comments of rating officials on the report in question, the applicant’s excellent performance of duty, as attested to in third party statements; the applicant’s overall record of honorable service, and in order to fully support and comply with the full spirit of the Military Whistleblower Protection Act, the Board determined relief is warranted.  Therefore, as an exception to policy and in the interest of equity, the Board concludes the contested report should be removed from the applicant’s record at this time.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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

a.  by removing the June 1995 through November 1995 NCOER from the records of the individual concerned;

b.  by declaring the period of service covered by the NCOER as a nonrated period of service and that a non-prejudicial explanation be placed in his records explaining the gap created, in NCOER rating periods, as a result of this action;

c.  by submitting the records of the individual concerned, as thus corrected, to a duly constituted special promotion selection board for promotion reconsideration under the criteria followed by all promotion selection boards that reviewed the contested NCOER and failed to select him for promotion; and

d.  if promoted, by providing the individual concerned an appropriate date of rank with entitlement to all back pay and allowances.

BOARD VOTE:  

___jhl__  ____jns_  ___mhm__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999015728	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000629	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Grant	
REVIEW AUTHORITY		
ISSUES         1.	111.00	
2.		
3.		
4.		
5.		
6.