PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            24 May 2000
	DOCKET NUMBER:   AR2000037990

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller		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, seeks relief beyond that already provided by this Board in a decision rendered in December 1997.  He specifically requests that his records be corrected to reflect retroactive promotion to staff sergeant/E-6 (SSG), with an adjusted date of rank (DOR) in 1993 as opposed to his current DOR to SSG of 1 October 1998; and he requests that he be retroactively promoted to the rank of sergeant first class/E-7 (SFC), with an effective date and DOR in 1996.  He further requests that his records be reviewed by an appropriate Stand-By Advisory Board (STAB) for consideration for promotion to master sergeant/E-8 (MSG). 

3.  The applicant also requests that a Noncommissioned Officer Evaluation Report (NCOER) covering the period March 1992 to February 1993, which was removed from his records based on his successful appeal, be added back to his record with only the rater portion of the report left in tact.  Further, he asks that there be a modification made to this report by showing, in the reviewer portion of the NCOER, that the reviewer concurred with the evaluation of the rater.  Finally, he asks that appropriate relief be provided by this Board, which would remove the stigma of the non-rated time in his records as a result of the removal of this report, indemnify him for the lack of a decoration, and credit him with the Noncommissioned Officer Education System (NCOES) level necessary for promotion to MSG.

4.  The applicant states, in effect, that the reprisals he suffered as a result of his testimony in an Army Regulation 15-6 investigation, conducted in November 1992, resulted in significant adverse personnel actions that were not totally addressed in the 1997 decision of this Board.

5.  The first adverse action he believes requires relief is the total removal from his records of the NCOER for the period March 1992 to February 1993.  He comments that the rater portion of this report was extremely accurate, specifically the rating of “among the best” in promotion potential.  He believes that the decision to remove the entire report and cover the period with non-rated time, which was the decision of the Army’s Reserve Personnel Command (ARPERSCOM), is inconsistent with the governing regulation. 

6.  He also states that the reprisal which resulted in his orders for attendance at BNCOC being revoked, while not prohibiting his promotion to SSG, did make him less competitive and inhibit his selection for promotion to SSG.  Even though this was not his only opportunity to attend the BNCOC, he contends it is ludicrous to believe it did not hurt his promotion potential at the time.  He explains that, had it not been for the substantiated reprisals, he likely would have been promoted to SSG in 1993  

7.  Further, if he had he been promoted and graduated from the BNCOC in 1993, he most likely would have graduated from the Advanced Noncommissioned Officer Course (ANCOC) in 1996, about the same time he ended up completing the active component of the BNCOC. 

8.  He states that documents that were substantiated as reprisals against him resulted in the creation of a negative dossier on him.  While the total extent of the damage done to him by this dossier can not be established, he contends it resulted in his being counseled by his first sergeant, even when he received letters of commendation.  Positive actions that other soldiers received awards for, resulted in his being chastised by the first sergeant.  While he has no conclusive evidence, the applicant believes something turned the first sergeant against him, and it was likely the dossier created with these documents.

9.  The applicant further claims that NCOER’s that he successfully appealed remain in his Military Personnel Records Jacket (MPRJ) at ARPERSCOM, and continue to block him from selection for special assignments and advancement.  He arrives at this conclusion based on the fact that he has successfully served in an SFC position for 4 years without receiving the requisite rank or pay.  He further claims that the corrective actions he requests are necessary for him to gain relief consistent with where he would be in his career had the reprisals not taken place. Enclosed is a memorandum to this Board from the applicant, which provides his full expanded arguments, with exhibits, in support of his case.  

10.  The applicant’s military records show that he is currently a USAR soldier serving on active duty in the rank of SSG, in an Active Guard/Reserve (AGR) status.  The applicant is currently performing duties in military occupational specialty (MOS) 71L40 (Administrative Supervisor) with the 90th Regional Support Command, Little Rock, Arkansas. 

11.  While serving in an AGR position, as an administrative clerk with the NCO Academy at Fort Chaffee, Arkansas in 1993, the applicant was the subject of reprisal as a result of his protected communication with the Inspector General (IG).  This was substantiated by the Department of Defense IG (DODIG) on 
3 October 1996.

12.  The DODIG findings indicated that the reprisal against the applicant consisted of his receiving an adverse NCOER covering the period March 1992 to February 1993; his being issued a general counseling form from a SSG, on 
20 March 1993; a psychiatric evaluation being requested on him by a CSM, on 
8 April 1993; his orders to attend the BNCOC being revoked, on 27 May 1993; his being issued a memorandum for record of official counseling by a CSM, on 12 June 1993; by his being issued general counseling forms by a CSM, on 11, 13, and 16 June 1993; by his being issued general counseling forms by a master sergeant (MSG), on 9, 18, and 30 June 1993; by his being issued a general counseling form by a MSG, on 4 August 1993; and by his receiving an adverse NCOER covering the period February 1993 to September 1993.  

13.  In its findings, the DODIG indicated that while revoking the applicant’s orders to attend the BNCOC was done in reprisal for his protected communication, there was no evidence to show, given completion of the BNCOC was not a prerequisite for promotion to SSG, that this caused him not to be promoted.  They further advised the applicant that he could apply to this Board for correction of his military records as a result of their substantiation of reprisal.  Based on the substantiated findings of the DODIG, the applicant did apply to this Board for relief in September 1997.

14.  A review of the records shows that the contested annual NCOER for the period March 1992 to February 1993, that had been on file in the applicant’s official military personnel file (OMPF), was removed in January 1995, as a result of a successful appeal from the applicant to the Enlisted Special Review Board (ESRB).

15.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) sets the policies and procedures governing the Noncommissioned Officer Evaluation Reporting System (NCOERS).  It gives instructions for preparing, processing, and submitting NCOER’s.  It also gives guidance for appealing evaluation reports. 

16.  Chapter 4 of this regulation sets the policies and procedures for the appeals system.  Paragraph 4-5 (Processing and Resolution) states, in pertinent part, an appeal may be approved in whole or in part, or may be denied, depending upon the merits of the case.  For example, the board may decide that the evidence justifies removal of the rater's evaluation, but that the senior rater's evaluation should remain as it was not proven inaccurate or unjust.  However, the board will not usually take action that might unintentionally worsen an appealed evaluation report.  In addition, the board will make a determination as to whether promotion reconsideration by one or more special boards is justified.  The result of a successful appeal may not always be the specific action requested by the appellant.  
17.  On 10 December 1997, a panel of this Board granted the applicant relief by directing that his corrected records be reviewed by a STAB for promotion reconsideration, under the criteria followed by all boards that previously considered him for promotion to the rank of SSG before his records were corrected; and that if promoted he be provided all back pay and allowances due from the date he would have been originally promoted.  

18.  In addition, the Board recommended that if the applicant were selected for promotion to SSG by a STAB, that he be reconsidered for promotion to sergeant first class/E-7 (SFC) based on his new DOR to SSG.  The Board also directed that, in addition to the NCOER that had already been removed from his records, all the documents contained in his record that were substantiated by the DODIG as being issued in reprisal for his protected communication be removed.

19.  The evidence of record contains a memorandum from the Chief, Office of Promotions, Reserve Components, ARPERSCOM, dated 17 February 1998, which indicates that the applicant’s corrected records would be reviewed by a STAB, and that he would be considered for promotion to SSG, in MOS 71L, under the criteria used by the calendar year 1994 and 1995 AGR SSG promotion boards, which were the boards that had reviewed his records with the documents ordered removed. 

20.  A staff member of this Board contacted the promotions branch at ARPERSCOM and verified that the applicant’s corrected records were considered by STAB’s using the 1994 and 1995 criteria.  However, the applicant was not selected for promotion by those boards.  The applicant was selected for promotion by the calendar year 1998 SSG selection board, which resulted in his promotion on 1 October 1998.

21.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction) prescribes policy and procedures governing the classification, advancement, promotion, reduction, and grade restoration of applicable USAR soldiers.  Chapter 4 contains the policy and procedure for the promotion of soldiers serving in an AGR status.  It states, in pertinent part, that eligibility for promotion consideration to SSG through SGM is based on DOR.  In addition, for MSG or 1SG and SGM, cumulative enlisted service is also required.  The criteria for primary zone (PZ) and secondary zone (SZ) consideration for each grade is announced by Department of the Army before each board. 

22.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual military awards.  Paragraph 
1-14 (Time Limitations) states, in pertinent part, that each recommendation for an award of a military decoration must be entered administratively into military channels within 2 years of the act, achievement, or service to be honored.  It also states that no military decoration, except the Purple Heart, will be awarded more than 3 years after the act or period of service to be honored. 

23.  Paragraph 3-18 provides the rules for processing the DA Form 638 (Award Recommendation), which is required to initiate, process, and approve award recommendations of all U.S. Army individual decorations, to include valor and heroism decorations.  Table 3-3 (Delegation of Award Approval Authority-Wartime Conditions) indicates the approval authority for all individual awards and decorations. 

24.  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.)

25.  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.  The request for review of the final decision must be filed within 90 days of receipt of the decision by a member or former member of the Armed Forces.  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.

26.  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 considered the applicant’s contention that the rater portion of the NCOER, for the period March 1992 to February 1993, which had been removed from his record as a result of his successful appeal, should be reinstated with reviewer concurrence added.  The Board found that the appeal action taken by the ESRB to remove the entire contested report, covering the period March 
1992 through February 1993, was accomplished in accordance with the applicable regulation and was in their opinion the best solution to the presented appeal action.  

2.  However, this Board found that it may have been a more appropriate appeal  remedy to leave the rater’s portion of the contested NCOER intact, which would have provided the applicant the benefit of having a positive rater evaluation in his records for consideration by the 1993 and subsequent SSG selection boards.  Therefore, in the interest of equity, this Board concludes that the rater portion of this contested NCOER, covering the period March 1992 through February 1993, should be reinstated and that this modified version of the report should be placed back in the applicant’s Official Military Personnel File. 

3.  Although this Board concurs with the original findings of the IG investigation and the earlier decision of this Board, that the applicant’s not completing the BNCOC could not be firmly established as a reason contributing to the applicant’s non-selection for promotion to SSG, this Board finds that there is at least the possibility that it could have been discriminator in the selection process. Therefore, in the interest of equity, the Board determined that the applicant should be given constructive credit for the completion of the BNCOC effective in May 1993.

4.  Given the Board’s decision to reinstate the positive rater evaluation of the contested NCOER, covering the period March 1992 through February 1993, and that the applicant be given constructive credit for the completion of the BNCOC in May 1993, the Board also finds that it would be appropriate for the applicant’s corrected record to be reevaluated by a STAB using the criteria of the 1993 SSG selection board and by all subsequent SSG selection boards, who reviewed the applicant’s record without the benefit of these corrections, and which resulted in his non-selection for promotion to SSG.

5.  The Board noted the applicant’s desire to receive an award or decoration for his period of service with the NCO Academy at Fort Chaffie, Arkansas.  However, there is no basis for this Board to take this action.  By regulation, in order to receive an individual award a member must be recommended and the recommendation must be approved by the appropriate authority.  This Board found no evidence in the record that a recommendation for award had been submitted or approved on the applicant, and thus is unable to establish from the service record that the applicant would have received an award, even had the reprisals for his protected communication not taken place.  

6.  The Board also noted the applicant’s contention that the relief provided in an earlier decision by this Board was insufficient, and considered his request that his DOR to SSG be established in 1993; that he be promoted to SFC with a DOR in 1996, and that his records be reviewed by a STAB for promotion to MSG, with constructive credit granted for the level of NCOES necessary for this promotion.  

7.  Notwithstanding these claims of the applicant, the Board found the relief provided, in the 1997 decisional document of this Board along with the further relief being provided by this Board, as outlined in the preceding paragraphs, sufficiently address the injustice to him that resulted from the substantiated reprisals against him.  

8.  The applicant’s claim that the documents identified as being issued in reprisal for his protected communication, and directed removed by the earlier decision of this Board, remain in his records at ARPERSCOM is not corroborated by the evidence.  The OMPF reviewed by this Board, which was provided by ARPERSCOM, contained none of the documents in question.  The Board finds no reason to believe these documents are on file in any of the applicant’s official service records contained at ARPERSCOM.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by reinstating only the rater evaluation portion of the annual NCOER issued to the individual concerned covering the period March 1992 through February 1993 and by showing that the applicant completed the BNCOC in 1993.

2.  By submitting the corrected record of the individual concerned to a duly constituted STAB for promotion reconsideration under the criteria followed by all boards that previously considered him for promotion to SSG and resulted in his non-selection for promotion.

	a.  that if selected for promotion to SSG with an earlier date of rank than he now holds, that he be provided all back pay and allowances due effective the date he would have been originally selected; and 

b.  that if he is selected for promotion to SSG, he be granted constructive credit for the completion of the ANCOC and be reconsidered for promotion to SFC in the appropriate military occupational specialty, if appropriate based on his date of rank to SSG; and

c.  that if promoted to SFC he be reconsidered for promotion to MSG in the appropriate military occupational specialty, if appropriate based on his date of rank to SFC.

3.  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.  

4.  That so much of the applicant’s requests in excess of the foregoing be denied. 

BOARD VOTE:  

__mdm__  ___js ___  ___mw__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone_______
		        CHAIRPERSON

INDEX

CASE ID	AR2000037990	
SUFFIX		
RECON	1997/12/17	
DATE BOARDED	2000/05/24	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.   310	131.0000	
2.  315	131.0500	
3.  311	131.0100	
4.		
5.		
6.