PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:          16 November 2000                            
	DOCKET NUMBER:  AR2000036748

	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	
	Mrs. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Martha E. Schuler		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 removal of his Officer Evaluation Report (OER) for the period (970117-970529), removal of the 4 December 1997, Major General (MG) B_, letter from his official records and removal/ voiding or withdrawal of the Relief for Cause action.  The applicant further requests that he be returned from reserve retirement, to active Army Reserve status to complete his 30 years of commissioned service (for a period of 12 months and 6 days), with adjusted retirement date, (original retirement date 970403).       

3.  The applicant states, in effect, that Colonel (COL) H_, the United States Army Reserve (USAR), Officer In Charge (OIC), of the USAR Element, Joint Reserve Unit (JRU), US Atlantic Command (USACOM), did not have the regulatory or statutory authority to relieve the applicant and that COL H_ was junior to him in date of rank.  The applicant further states that MG B_ then CDR, USARC, based his subsequent relief actions on erroneous information and misinformation provided by COL H_.  The senior rater of the Relief for Cause OER was MG D_ who stated, “I non-concur with the Relief for Cause because the officer, who directed the relief, acted without proper authority”.  The applicant submits to the DA Review Boards Agency a letter dated 9 February 00, the Department of Defense (DOD), Inspector General (IG,) letter dated 27 January 00, MG B’s_ response to the Commander’s inquiry request, dated 4 December 1997 and other documents in support of his application.      

4.  The USACOM is a unified command originally composed of active duty components of the military services.  In March 1996, the creators of the JRU added the Reserve components to the USACOM.  In September 1996, the applicant was assigned to and had duty at the USACOM.  The applicant held the position of Deputy Chief of Staff for Reserve Components, USACOM.  He worked under the USACOM Joint Training Division (J-7) at Suffolk, Virginia.  In January 1997, COL H_ was assigned to and designated the OIC of the JRU, USACOM.  COL H_ was not in the applicant’s supervisory chain of command and was not a rating official for the applicant’s OER.  Major (MAJ) M_T_, the applicant’s wife, was also assigned to the JRU, USACOM, as the Personnel and Administration Division Chief, and worked for COL H_.  

5.  On 31 March 1997, Major M_T_, the applicant’s wife, reported a gender discrimination complaint to her chain of command, COL H_ and COL D_, a U.S. Marine Corps Reservist, and Commander, JRU.  Major M_T_ alleged that a MAJ. TU__, used insulting and defamatory language toward her, and engaged in gender discrimination against her. 

6.  On 13 April 1997, COL H_ conducted an informal inquiry into MAJ M_T_’s complaint.  COL H_ interviewed both parties and concluded that he could not substantiate MAJ M_T’s allegations.

7.  The applicant alleges that during a physical fitness test, COL H_ approached him and stated,  “You need to get your wife back in the box on this IG complaint of hers”.  COL H_ denies making such a statement.   

8.  On 15 April 1997, MAJ M_T_ made a protected communication to the IG, USACOM, alleging that COL H_ allowed gender discrimination in the work place. The IG investigation focused on COL H_’s tolerance of gender discrimination.  The USACOM IG substantiated MAJ M_T_’s reprisal complaint that COL H_ executed an unlawful reprisal against her because of her protected communications.  Specifically, the IG, USACOM, found that COL H_ issued MAJ M_T_ two adverse OERs for the periods ending April and October 1997, and reassigned her to Fort Monroe, Virginia in October 1997 in reprisal. 

9.  The applicant’s superiors wanted MAJ C_, an Army Reserve officer, to participate in an upcoming training exercise because of his expertise in air assault, counter-terrorism, and Special Forces operations.  However, a suspension of his clearance created a snag in his eligibility for the upcoming training exercise.  The USACOM’s J-7 officials placed pressure on the applicant to ensure that MAJ C_ received the required security clearance.  COL H_’s department processed security clearance requests and initially agreed to expedite MAJ C_’s clearance.  MAJ TU_, Chief, Training & Security was the action officer responsible for obtaining MAJ C_’s security clearance.  (The applicant alleges that COL H_ and MAJ TU_ did not expedite MAJ C_’s clearance because of his wife’s IG complaint).  The record indicates that the applicant and COL H_ exchanged several e-mails concerning MAJ C_’s security clearance.  Although the applicant was MAJ C_’s supervisor, COL H_, without informing the applicant, interviewed and chastised MAJ C_ for his temporary suspension of his security clearance.  MAJ C_ informed the applicant of what took place.  The applicant called COL H_, but he declined to talk with the applicant.   

10.  On 22 May 1997, the applicant sent COL H_ an e-mail message to discuss problems with MAJ C_’s security clearance.  The applicant asked COL H_ to intervene with MAJ TU_ to expedite the adjudication of MAJ C_’s security clearance.  The applicant wrote, ”Without the proper access, this officer cannot do his job.  Therefore the J-7 cannot do its job completely.”  The applicant also told COL H_, that “MAJ C_ is one of his soldiers, and now I’m involved, and I can resolve the situation if those so charged with this responsibility cannot or will not”. 

11.  On 24 May 1997, COL H_ responded to the applicant’s e-mail.  COL H_ told the applicant that he had tasked MAJ TU_ to expedite the soldier’s security clearance.  

Also, COL H_ advised the applicant, to “Be mindful of military staff procedures and courtesies to your senior officers”.  “Submit any request for my action as a staff request, fully coordinated, for my approval as the OIC, U.S. Army Element, JRU.” 

12.  On 28 May 1997, the applicant sent COL H_ an e-mail expressing his frustration with staff procedures that COL H_ outlined to him in the 24 May 1997
e-mail.  The applicant stated, “I just don’t have the time to be bowing down to an AGR major (MAJ TU) or play by your staffing rules that requires more time than I’ve got to communicate…So try this advice: Come on down and join the USAR colonels in the trenches; spend less time hanging around HQ-JRU and get out here in the mud, the slop, and the High Risk/high VIS of a Unified Endeavor…”    

13.  On 29 May 1997, COL H_ relieved the applicant for cause.  In a memorandum to the applicant, COL H_ cited two e-mails dated 22 and the 28 May 1997, which the applicant wrote to him as the basis for the Relief for Cause. COL H_ stated that “your actions do not meet generally accepted standards of conduct expected of senior military officers.  I have lost confidence in your ability to perform your assigned military duties in an acceptable manner.” 

14.  On 18 June 1997, the applicant filed a complaint with the IG, USARC, alleging COL H_ was not authorized as an OIC to relieve him for cause.  The applicant’s supervisory chain also questioned COL H_’s authority to relieve the applicant and disregarded the relief action until the authority question was resolved.  Accordingly, the applicant’s supervisors allowed him to continue to drill until December 1997.

15.  On 22 July 1997, MG P_, then Deputy Commanding General, USARC signed a memorandum certifying COL H_ as the Commander, Army Reserve Element, JRU, USACOM.  (The appointment came after the Relief for Cause memorandum to the applicant, retroactive to 1 January 1997).  

16.  On 24 July 1997, the applicant received a Relief for Cause OER for the reporting period of 27 January to 29 May 1997.  His rating chain of command non-concurred with the relief action, and praised the applicant’s performance and potential.  The rater and intermediate raters recommended the applicant’s immediate promotion to general officer.  The senior rater rated the applicant’s promotion potential in the top block.  Additionally, MG D_ strenuously non-concurred with the relief for cause, arguing COL H_ was junior to applicant, and any claim that COL H_ was a commander was inadequately documented, and the relief process lacked an investigation of the facts. 

17.  On 10 August 1997, the applicant requested the USACOM IG, to investigate his Relief for Cause and the Relief for Cause OER.

18.  On 28 August 1997, the applicant filed a reprisal complaint with the DOD IG.

19.  On 1 September 1997, the applicant requested MG B_, the Commanding General, USARC, conduct a Commander’s Inquiry concerning his Relief for Cause and Relief for Cause OER.

20.  On 17 October 1997, the Chief, Civil/Administrative Law, U.S Army Reserve Command, found that the e-mails were “insubordinate acts are suspect at best,” but there was nothing to indicate COL H_ was empowered to relieve the applicant. 

21.  On 18 November 1997, MG P_, accompanied by a Staff Judge Advocate (SJA), USARC, conducted a Commander’s Inquiry concerning the applicant’s Relief for Cause and Relief for Cause OER.  It was determined that the relief for cause was proper. 

22.  On 4 December 1997, MG B_, (Commanding General, USARC) found the applicant’s Relief for Cause for insubordination was proper.  MG B_ ratified COL H_’s relief action; and as a precautionary measure, relieved the applicant from his position under his own superior authority.

23.  On 22 January 1998, COL H_ initiated action to remove the applicant from his J-7/JTASC billet and involuntarily transferred him to the IRR.  On 19 February 1998, the applicant received orders from the USARC involuntarily releasing the applicant from his JRU assignment and assigning him to the IRR.  On 
25 February 1998, the U.S. Army Reserve Personnel Command reassigned the applicant to the Retired Reserve.

24.  On 6 March 1998, MG B_’s legal advisor revealed to the USACOM IG that the USARC Deputy Commander’s memorandum designating COL H_ as a commander was problematic, violated Army regulations, and should not have been signed.    

25.  On 27 January 2000, the DOD IG completed their investigation, and did not substantiate the applicant’s reprisal complaint.  However, they found that the command authority of the relieving official to be unclear at the time COL H_ relieved the applicant. 

26.  On 31 March 2000, the applicant appealed to this Board for correction of his military records.

27.  On 19 April 2000, the Office of the Judge Advocate General (Chief, Military Personnel Law Branch, Administrative Law Division), opined “COL H_ lacked the authority to relieve the applicant.  The Commander United States Army Reserve Command (USARC) lacked the authority to ratify COL H_’s relief of the applicant. Nevertheless, the independent relief action by the Commander, USARC, on 
4 December 1997, was found to be legally sufficient.”  The opinion was silent regarding the implications of MG B_’s Relief for Cause of the applicant while conducting a Commander’s Inquiry regarding the applicant’s relief.

28.  On 25 May 2000, the DOD IG replied to applicant’s 1997 reprisal allegation.  The DOD IG found the evidence did not substantiate that a reprisal was taken against him.  However, the DOD IG’s investigation revealed “inconsistent Inspector General and legal opinions regarding the authority of the relieving officials,” and referred the matter to the Office of the Judge Advocate General.

29.  An advisory opinion from the legal advisor, Army Review Boards Agency (ARBA), dated 14 August 2000, recommended that relief be granted to the applicant.  The opinion concluded:  (1) that the commander’s inquiry into the applicant’s relief for cause was fatally defective; (2) that the applicant’s relief-for-cause did not comply with regulatory standards; (3) that the applicant’s communications with COL H_, the officer that initiated the relief for cause, were not disrespectful as a matter of law; and (4) that the applicant was “victimized by an unlawful reprisal.”  Accordingly, the legal opinion recommended “applicant’s restoration to USAR active reserve status through the date of his mandatory retirement date (MRD), back pay and allowances, and a Legion of Merit retirement award.” 

30.  The applicant’s attorney submitted a response to the ARBA legal opinion, dated 11 September 2000.  In it he agreed with the analysis and the conclusions stated in the ARBA advisory opinion, but requested additional relief, namely that the applicant be returned to active status for consideration for promotion to O-7 and that the applicant receive back pay for 60 drill days plus 58 annual training days for a total of $17,700.00.  

31.  On 14 September 2000, the applicant officially designated Mr. K_, of the Military Defender Law Offices, Bethesda, Maryland, as his attorney of record.  

32.  Army Regulation (AR) 623-105 establishes the policies and procedures for the preparing, processing and using the OER.  The regulation also provides that an OER accepted for inclusion in the 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.  Clear and convincing evidence that action is warranted to correct a material error, inaccuracy or injustice must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

33.  AR 623-105, paragraph 3-50, states that a report is required when an officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty.  If relief for cause is contemplated on the basis of an informal AR15-6 investigation, the referral procedures contained in that regulation must be complied with before the act of initiating or directing the relief. If the relief is directed by someone not in the designated rating chain, the official directing the relief will describe the reasons for the relief in an enclosure to the report.                

34.  DOD Directive Number 7050.6, dated 20 November 1989 established 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.)      

35.  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 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 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. 

2.  This Board respects and agrees with the findings of the Inspectors General who investigated the matter and rendered their opinions.  Although the applicant’s claims of reprisal were unsubstantiated by the IG’s, this Board believes that an injustice nevertheless occurred.  The evidence of record shows that on 29 May 1997, the applicant was relieved for cause because of the disrespectful tone of his two e-mails dated 22 and 28 May 1997 to COL H_, which COL H_ believed constituted insubordination.  A Relief for Cause OER followed a Relief for Cause action.  The applicant’s rating chain rendered a Relief for Cause OER.  The applicant’s rating chain non-concurred with the Relief for Cause and made highly favorable comments on the applicant’s Relief for Cause OER.  The applicant requested the IG, USARC, to investigate his Relief for Cause and the Relief for Cause OER.  The applicant also requested that MG B_, the Commanding General, USARC, conduct a Commander’s Inquiry concerning his Relief for Cause and Relief for Cause OER.  MG B_ found the Relief for Cause was proper and there was no error or violation of Army regulation.   Although there were some questions concerning COL H_’s authority to relieve the applicant, MG B_ ratified COL H_’s relief of the applicant and also relieved the applicant from his position under his own superior authority. 

3.  Based on the facts provided, this Board concludes that when COL H_ relieved the applicant for cause there was an unclear line of command authority regarding COL H_’s position.  The JRU was the only unit of its kind at the time, and the joint performance rating schemes were new to everyone.  

While MG P_ may have given COL H_ verbal authority to function as a commander, he did not issue a memorandum designating COL H_ as commander until 22 July 1997, 2 months after COL H_ relieved the applicant.  
Therefore, this Board believes that on 29 May 1997, COL H_ was functioning as OIC of the Army Reserve Element, JRU and was not functioning as a commander or “superior authority” in relation to the applicant.  COL H_ was not in the rating chain of the applicant.  Although he was functioning as an OIC, he did not direct or control the applicant’s performance of duty.  COL H_ did not exercise command authority under the Uniform Code of Military Justice in regard to the applicant and COL H_ was not senior to the applicant.  Based on those facts this Board believes that COL H_’s relief of the applicant on 29 May 1997 was improper.

4.  The improper relief clearly colors the Relief for Cause OER.  It would be unfair to allow the OER to remain under these conditions.

5.  The dispute between two officers over another officer’s security clearance should not have triggered a relief for cause action against the applicant, although the applicant’s comments were excessive or blunt.  The applicant should have been allowed to continue in his reserve status until his MRD.

6.  As to the Legion of Merit, there is insufficient information to allow the Board to determine if the applicant’s service warrants this award or any other award.  In the absence of such evidence, the Board is reluctant to direct any award at this time.   

7.  Finally, on 11 September 2000, the applicant’s counsel requested additional relief.  His counsel requested that the Board extend the applicant’s MRD and restore him to active reserve status, for consideration for promotion to general.  This Board is satisfied that granting the applicant active Reserve status with any pay entitlements from the time of his relief until his MRD and correction of his records to reflect that he was always in active Reserve status until his MRD, adequately compensates the applicant.  Additionally, the Board notes that the MRD is based on statutory limits for active duty imposed by Congress.  

8.  However, the Board is persuaded by the argument of the applicant’s counsel to add one component of further relief.  The Board will direct PERSCOM / AR-PERSCOM to ensure that the applicant is considered for promotion to brigadier general through a special selection board, if PERSCOM / AR-PERSCOM determines that the applicant would have been considered for promotion to brigadier general between the time of his relief and his MRD. 

Further, if the applicant had been considered for promotion for general during that time, his records should be submitted to a duly constituted Special Selection Board because of the adverse impact of the OER the Board removed.     

9.  The interest of justice would best be served by correcting 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.  voiding the relief for cause OER for the period of 970117-970529, 
 
     b.  voiding all orders terminating the applicant’s USAR active Reserve status and placing him in the Individual Ready Reserve and Ready Reserve;

     c.  reflecting that the applicant’s service was continuous without a break in service or until his mandatory release date (MRD), 

     d.  reflecting that the applicant is entitled to full pay and allowances for the entire period of time he would have been paid from the date of his erroneous termination from active reserve status through his MRD; and any other pay as appropriate;

     e.  entitling him to drill points during the period he was removed from status, issue the applicant 104 retirement points per year, and use 104 points annually as the basis upon which to calculate drill points for any fraction of a year; 

     f.  placing in the applicant’s file a non-prejudicial explanation explaining the absence of any OERs, including the removal of the relief for cause OER. 

2.  If determined he should have been considered for promotion, submit the applicant’s records before a duly constituted Special Selection Board to consider him for promotion to O-7, and if selected, promote him and return him to active reserve status.  His time and grade would be adjusted accordingly with back pay and allowance from the date of his promotion to the present.

3.  Following completion of the administrative correction directed herein, the proceedings of the Board and all documents related to this appeal are returned to this Board for permanent filing.

4.  That if the applicant is not selected for promotion, he be notified accordingly.

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

BOARD VOTE:  

__wtm___  __jea___  __mes___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Walter T. Morrison
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000036748	
SUFFIX		
RECON		
DATE BOARDED	20001116	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	107.0009	
2.	111.0100	
3.	128.0900	
4.	131.0000	
5.	134.0200	
6.	136.0300