PROCEEDINGS

IN THE CASE OF

	BOARD DATE:            11 March 1999
	DOCKET NUMBER:   AR1999022812

	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	
	Ms. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Curtis L. Greenway		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 the removal of two officer evaluation reports (OER) covering the periods 30 July 1994 to 21 December 1994 and 22 December 1994 to 3 July 1995 from his Official Military Personnel File (OMPF).

3.  The applicant states, in effect, that the two OERs were reprisals against him for making protected communications and therefore are not accurate evaluations of his performance for those time periods.  He also contends that his rater for the
second report (22 December 1994 to 3 July 1995) failed to execute his responsibilities properly as substantiated by the Department of Defense Inspector General.  In support of his application, he submits copies of the contested OERs, his rebuttals to the OERs and a copy of the Department of Defense Inspector General (DODIG) letter dated 23 October 1997.   

4.  The applicant’s military records show that he graduated from the U.S. Military Academy in West Point, New York, was commissioned a second lieutenant and entered the Regular Army on 27 May 1981.  He was honorably released from active duty in the rank of captain under the Fiscal Year 1992 Voluntary Early Transition Program and was transferred to the USAR Control Group (Ready) on
2 September 1992.  He had served 11 years, 3 months, and 9 days of total active service.  

5.  Records show that the applicant received 12 OERs between 24 May 1985 and 29 July 1994.  In part IVa of each OER, under professional competence (where on a scale of one to five, one is a high degree of professional competence and five is a low degree), his raters assigned one’s in all blocks.  His performance during all but one period was rated as having “Always Exceeded Requirements”.  In the other report his performance was rated as having “Usually Exceeded Requirements”.

6.  On 3 August 1995, while serving on active duty in the rank of major, the applicant  received a change of rater OER covering the period 30 July 1994 to
21 December 1994, evaluating him as a liaison officer.  In part IVa of the OER, under professional competence, his rater assigned him a three rating under “Demonstrates appropriate knowledge and expertise in assigned tasks”, “Motivates, challenges and develops subordinates”, “Encourages candor and frankness in subordinates”, “Displays sound judgement”, and “Clear and concise in oral communication”.  He received a two rating under “Possesses capacity to acquire knowledge/grasp concepts”, “Performs under physical and mental stress”, “Clear and concise in written communication”, “Seeks self-improvement”, “Is adaptable to changing situations” and “Sets and enforces high standards”.  He received one’s in the remaining three blocks.  In part IVb of the OER, under professional ethics, his rater commented that “Dedication -- more concerned about promoting his own career than in obtaining mission accomplishment”, “Loyalty -- No evidence of loyalty to the command.  Loyalty was to promote his career” and “Integrity -- Without dedication and loyalty, integrity becomes suspect”.  His performance during the period was rated by his rater as having “Often Failed Requirements”.  In part Vd of the OER, under potential for promotion, his rater assigned “Do Not Promote”, and in part Ve, under comment on potential, it shows “No potential as a commander, but possible potential exists in a staff position in which he feels motivated”.  The applicant’s senior rater (SR) was unable to evaluate him because he had not been his SR for the required number of days.                 

7.  On 2 August 1995, the applicant received a change of rater OER covering the period 22 December 1994 to 3 July 1995, evaluating him as a J3 officer.  In part IVa of the OER, under professional competence, his rater assigned him a five rating under “Motivates, challenges and develops subordinates”.  He received a four rating under “Demonstrates appropriate knowledge and expertise in assigned tasks” and “Clear and concise in oral communication”.  He received a three rating under “Performs under physical and mental stress”, “Encourages candor and frankness in subordinates” and “Clear and concise in written communication”.  He received a two rating under “Possesses capacity to acquire knowledge/grasp concepts”, “Displays sound judgement”, “Is adaptable to changing situations” and “Sets and enforces high standards”.  He received one’s in the remaining four blocks.  His performance during the period was rated by his rater as having “Often Failed Requirements”.  In part Vd of the OER, under potential for promotion, his rater assigned “Do Not Promote”, and in part Ve, under comment on potential, it shows “Potential is limited.  Can serve as an assistant staff officer with constant supervision”.  In part VIIa under the SR potential evaluation portion of the OER, the SR placed the applicant in the last block.  (The SR potential evaluation portion of an OER contains nine blocks.  A rated officer’s placement in the top block determines that he/she possesses greater potential than an officer placed in the second through ninth blocks).  Part VIIb, under SR comments, the SR stated “I have also served as an engineer officer for 28 years and I cannot identify in [the applicant] one single professional engineer task in which he excels.  In my opinion, this officer cannot be trusted, his motivation to serve is at best suspect, on his best day he is a marginal performer and I would never select him to serve in any but the most meaningless positions.  His performance in support of JTF-TW was substandard, unsatisfactory and unacceptable.  Never promote.”                  

8.  The evidence of record shows the two contested OERs were referred to the applicant and on 12 October 1995 he submitted rebuttals to each.    

9.  Records show the applicant received two OERs covering the period
4 July 1995 to 29 February 1996.  In part IVa of the OERs, under professional competence, his raters assigned one’s in all blocks.  His performance was rated as having “Always Exceeded Requirements” on the first OER and “Usually Exceeded Requirements” on the last report.

10.  The Department of the Army Inspector General (DAIG) directed that an investigation be conducted to investigate an allegation of reprisal for making protected communications.  The investigation was conducted based on complaints by the applicant that he was a victim of reprisal for making protected communications to his chain of command and the DODIG.  The applicant alleged that his Active Duty for Training (ADT) days were reduced; his ADT orders were revoked; he was assigned as Liaison Officer to Guatemala; and he was issued two substandard OERs in reprisal for his protected communications.

11.  The Inspector General, U.S. Army Reserve Command (USARC) conducted an investigation of the applicant’s reprisal allegations and concluded that the applicant’s commander reprised against him by reducing his ADT days and by revoking his ADT orders.  

12.  The DAIG and the DAIG legal advisor reviewed the investigation and further found that the applicant’s rater reprised against him in his OER for the period July to December 1994, and his senior rater reprised against him in his OER for the period December 1994 to July 1995.  And finally, the DAIG concluded that the applicant’s rater for the December 1994 to July 1995 period improperly failed to exercise his required responsibilities for counseling the applicant throughout the rating period.  However, the DAIG determined that the applicant’s allegation that he was assigned to serve as Liaison Officer in Guatemala during July and August 1994 in reprisal for his protected communications was not substantiated.  

13.  On 23 October 1997 the DODIG concurred with the findings of the DAIG investigation and advised the applicant to apply to this Board for relief. 

14.  Prior to the two contested OERs, the applicant was rated by the same senior rater for a change of rater OER covering the period 6 September 1993 to 29 July 1994.  In part IVa of the OER, under professional competence, he was assigned one’s in all blocks and his performance was rated as having “Always Exceeded Requirements”.  In part Vd, under potential for promotion, the rater assigned “Promote Ahead of Contemporaries”, and in part Ve, under comment on potential, it shows “[The applicant] deserves the opportunity for position of increased responsibility and should be considered for an XO position or S3 of an Engineer Battalion”.  In part VIIa under the SR potential evaluation portion of the OER, the SR placed the applicant in the second block.  Part VIIb, under SR comments, in pertinent part, stated “He shouId be retained and promoted with his peers”.   

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.  Further, the directive provides at paragraph E3d(4) that the Board, if it determines that a personnel action was taken in reprisal for a member or former member of the Armed Forces making or preparing a lawful communication, makes a determination on the appropriateness of administrative or disciplinary action against the individual or individuals who committed the action and, if deemed appropriate by the Board, forwards its recommendation to the Secretary concerned.

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.  The Board supports the DOD policy of unrestricted communication with Congress, the IG’s, and various other Government investigators, 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.

2. The evidence of record indicates that the applicant made protected communications; that unfavorable personnel actions (two unfavorable OERs covering the period 30 July 1994 through 21 December 1994 and 22 December 1994 through 3 July 1995) were taken; and that officials responsible for taking the unfavorable personnel actions were aware that the applicant had made protected communications.  Further, it appears that the unfavorable personnel actions may not have been taken if the protected communications had not been made. 

3.  Given the previous OER rendered by the SR which contained excellent ratings and glowing comments; the Board is also convinced that the contested OERs were rendered in reprisal based on the applicant making protected communications to the IG.  This appears especially true given his excellent performance prior to and subsequent to the contested OER periods and by virtue of the fact that he received both OERs at the same time.  Therefore, the contested OERs should be removed from the applicant’s OMPF.

4.  In view of the foregoing, it would be appropriate to correct the applicant’s military records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:
  
a.  by removing the OERs ending 21 December 1994 and 3 July 1995 pertaining to the individual concerned, in their entirety, from his OMPF; and
 
b.  by declaring the periods of the contested reports as non-rated time and by placing a non-prejudicial statement in the records of the individual concerned to explain the non-rated periods of service; and

	c.  by submitting his records, as thus corrected, to a duly constituted special promotion selection board for promotion reconsideration under the criteria followed by any boards that failed to select him to the rank of lieutenant colonel.

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

BOARD VOTE:  

___cla___  __vbc ___  ___clg __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Celia L. Adolphi_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999022812	
SUFFIX		
RECON		
DATE BOARDED	1999/03/11	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.  328		
2.		
3.		
4.		
5.		
6.