PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            25 May 2000
	DOCKET NUMBER:   AR2000039776

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		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 the removal of a noncommissioned officer evaluation report (NCOER) and a bar to reenlistment under the qualitative management program (QMP) from his Official Military Personnel File (OMPF) and retroactive promotion to the pay grade of E-8.

3.  The applicant states, in effect, that he received a relief for cause NCOER for the period ending June 1996 in reprisal for his making protected communications with the inspector general (IG) and that the IG has determined that his allegations of reprisal were substantiated.  He also states that he was barred from reenlistment under the QMP based on the NCOER and although he overcame the bar, the reprisal has continued to stunt his military career.  He goes on to state that the NCOER along with all references to the bar to reenlistment should be removed from his OMPF and that the Board should exercise its authority to retroactively promote him to the pay grade of E-8 because a review of his records will show that he is deserving of the promotion and such an action by the Board will return his career to its original course prior to the unjust reprisal.

4.  The applicant’s military records show that he initially enlisted in the USAR on 15 February 1983 and remained in the USAR until he enlisted in the Regular Army on 8 January 1985 for a period of 3 years and training as an infantryman.

5.  On 2 March 1985 he reenlisted in the pay grade of E-5 for a period of 6 years, training under the airborne training option, and a selective reenlistment bonus.  He completed his training and was transferred to Fort Bragg, North Carolina where he was promoted to the pay grade of E-6 on 1 April 1989. 

6.  On 6 May 1993 the applicant was released for cause from the Advanced NCO Course (ANCOC) at Fort Benning, Georgia.  The Academic Evaluation Report (AER) (DA Form 1059) issued to the applicant indicates that his excessive use of profanity in a disrespectful manner warranted his release as unprofessional conduct by a senior NCO.  It also indicates that he displayed an unprofessional attitude towards a government civilian employee and an academy instructor.  

7.  The applicant was subsequently afforded the opportunity to again attend the ANCOC at Fort Benning and he successfully achieved course standards on 8 December 1994.  He was promoted to the pay grade of E-7 on 1 January 1994 while serving as a recruiter and was subsequently transferred to duty as a platoon sergeant in the 3rd Infantry Regiment at Fort Myer, Virginia in September 1994.

8.  On 8 August 1996 the applicant received a relief for cause NCOER for the period of February 1996 to June 1996.  In Part IVa, under Values/NCO Responsibilities, the applicant received “no” ratings from his rater (a captain/company commander) under “is committed to and shows a sense of pride in the unit - works as a member of the team” and “maintains high standards of personal conduct on and off duty.”  

9.  In part IVb, the rater gave him “needs improvement” ratings under competence and leadership.  The supporting comments indicate that the applicant failed to meet training deadlines on three occasions, that he put his own needs over those of the chain of command, that he twice did not have accountability of his soldiers, that he needs to be more of a team player, that he was found sleeping on duty twice, and that he had been counseled on five occasions due to his lack of support for the chain of command.  The rater deemed his (the applicant’s) overall potential for promotion and/or service in positions of greater responsibility as “marginal.” The senior rater (a lieutenant colonel) deemed his performance and potential as “fair.”  The applicant was subsequently transferred to Fort Bragg, North Carolina.

10.  On 24 March 1997, the applicant was notified that the Calendar Year 1997 Master Sergeant Promotion Selection Board had determined that he should be barred from reenlistment under the QMP based on the presence in his OMPF of the relief for cause NCOER and the AER showing that he had failed to achieve course standards in the ANCOC.  The applicant submitted an appeal of the bar to reenlistment and indicated that an ongoing IG investigation was underway to determine if the NCOER was issued in reprisal and constituted violations of the Whistleblower Protection Act of 1989.

11.  On 10 March 1998, after coordination with officials at the Department of the Army IG and the Deputy Chief of Staff for Personnel, a determination was made by officials at the Enlisted Records and Evaluation Center (EREC), that the bar to reenlistment should be administratively removed; however, a decision was made to allow the documents serving as the basis of the bar to remain in his record pending the outcome of any appeals he might submit.  The actions pertaining to the bar to reenlistment under the QMP were filed on the restricted fiche of his OMPF.

12.  On 14 December 1999, the Department of Defense IG (DODIG) notified the applicant that the Department of the Army IG (DAIG) had completed an investigation into his allegations of reprisal and had determined that his allegations that he had been unjustly counseled on five occasions, that he had been unjustly suspended from his duties, that nonjudicial punishment had been initiated against him, and that he was unjustly given a relief for cause NCOER in reprisal for making protected communications were substantiated.  The DODIG advised the applicant to apply to this Board for a correction of his records.

13.  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.)

14.  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.

15.  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 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.  The evidence of record indicates that the applicant made protected communications; that an investigation was conducted which determined that unfavorable personnel actions were taken in the form of a relief for cause NCOER that was deemed unfavorable, and that the officials responsible for taking those 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.  Therefore, since the applicant has requested total removal of the NCOER from his OMPF and given the findings of the DAIG and DODIG, the Board finds it in the interest of justice to remove the report as requested by the applicant.

4.  However, the applicant’s contention that the NCOER served as the basis for his bar to reenlistment and thus all references to the bar to reenlistment should be removed from his OMPF, is only partially true.  The evidence of record clearly shows that in addition to the contested NCOER, a relief for cause AER was used as the basis for his selection under the QMP, an action/document that was not related to his Whistleblower activities and occurred prior to the assignment in which he engaged in protected communications.  Therefore, the Board finds that the AER and the actions pertaining to his selection under the QMP should remain a matter of record.

5.  While the Board agrees that the applicant should receive promotion reconsideration to the pay grade of E-8 by all selection boards that viewed the contested NCOER, it does not agree that he should be promoted by the Board based on his participation in whistleblower activities.  Unfortunately, the Board does not have the benefit of reviewing all of the files that were reviewed by the promotion selection boards and to do so would circumvent the purpose of the standby boards that were created for just that purpose. 

6.  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:

a.  by removing the NCOER ending in June 1996 pertaining to the individual concerned in its entirety from his OMPF; 

	b.  by declaring the period of the contested report as non-rated time and placing a non-prejudicial statement in his records to explain the non-rated period 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 promotion boards that reviewed the contested NCOER and if he is selected that he be given the appropriate date of rank with entitlement to all back pay and allowances.  

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

BOARD VOTE:  

___ewl __  __klw ___  ___eja __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Elzey J. Arledge, Jr.____
		        CHAIRPERSON

INDEX

CASE ID	AR2000039776	
SUFFIX		
RECON		
DATE BOARDED	2000/05/25	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  221	111.0005/VOID/NCOER	
2.  311	131.0100/STAB	
3.  7	100.0600/QMP	
4.		
5.		
6.