PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            30 November 2000
	DOCKET NUMBER:    AR2000041986

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Thomas Lanyi		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 a 7 October 1999 application, that an officer evaluation report (OER) ending in April 1986 (henceforth referred to as contested OER #1) be eliminated from his records.  He also requests unspecified correction to his OER ending April 1989 (henceforth referred to as contested OER #2) and “Amendment to Final Settlement”.

3.  The applicant’s request to eliminate contested OER #1 from his records is a request for reconsideration because the applicant made the same request in his application to the Army Board for Correction of Military Records (ABCMR), dated 6 August 1996.  The request to eliminate contested OER #1 was denied in the Proceedings of the ABCMR, dated 14 May 1997.  The applicant’s requests to correct contested OER #2 and for “Amendment to Final Settlement” are new issues.

4.  The applicant states in a 7 October 1999 letter, forwarding his application through the Chairman of the Senate Armed Services Committee to the Director of the ABCMR, that the Army’s decision not to accept a III Corps Inspector General (IG) statement to eliminate contested OER #1 is in error.  In this letter, the applicant requests the Chairman of the Senate Armed Services Committee to ask the Director of the ABCMR to eliminate contested OER #1 from the applicant’s files and to correct, as a minimum, the applicant’s rank from major to lieutenant colonel.  Attached to this letter is an executive summary in which the applicant contends that he was discharged in April 1989 from the Army for substandard performance as the result of a conspiracy generated by a Dean at Texas Christian University (TCU), by an Army lieutenant colonel (assigned as the Professor of Military Science at TCU) and by the rater for contested OER #1 which covered the rated period immediately preceding the applicant’s assignment to TCU.  The applicant states that the Senate Armed Services Committee and the Secretary of the Army now have new evidence of the conspiracy based on the statement of an Army officer.  The applicant contends that this OER should be removed from his files because “a federal court is doomed to review the Army’s actions, a III Corps IG officer recommended elimination of contested OER #1, any doubt in this matter should be given to the applicant because Army Criminal Investigation Command (CID) failed to investigate allegations made by the applicant against senior officials involved in crime, and that the Department of Defense (DOD) IG concluded that the applicant’s “whistle blower actions are not in dispute.”

5.  In the executive summary submitted with his application, the applicant states that contested OER #1 “constituted reprisal for the applicant’s whistle blowing activities”.  The applicant admits that contested OER #1 occurred before enactment of the Military Whistleblower Protection Act (Title 10, United States Code, Section 1034), but he contends that his discharge, which was the result of the reprisal, occurred after the law was in effect.  The applicant contends that he did not receive the substantive protection of an important body of law and that under standards of today this OER would not be in his personnel records.  He concludes that the ABCMR “has the power to do equity for [a] victim of reprisal in terms of remaining issues e.g. future employment and wages, loss of awards, leave time, offset for paying lump sum federal taxes; offset for lack of interest on back pay; award of attorney fees and/or costs for litigation as result of the infliction of harm; compensation for damages; and punitive damages, and to compensate for flawed promotion system mechanism.”

6.  The applicant writes further that through administrative procedures the Army Discharge Review Board (ADRB) and the ABCMR partially corrected the wrongs in his case.  He states that his discharge has been voided and the ABCMR provided retirement at the grade of major with back pay; however, the applicant states that these actions are short of what he requested and what he deserves.  He contends that, except for contested OER #1, “the aftermath”, his end of service OER directed by DA [Department of the Army], and additional reprisal while serving in the Texas National Guard, the applicant “could have expected a due course Infantry Officer’s career with regular promotions.”  The applicant concluded that the ABCMR can remove contested OER #1, correct contested OER #2, promote the applicant, correct the record to reflect a due course career, and finish the job of correcting the wrongs.

7.  In support of this application, the applicant submitted a copy of a DD Form 149 (Application for Correction of Military Record), dated 6 August 1996; a 20-page affidavit in support of his letter, dated 8 October 1999, through the Senate Armed Services Committee to the ABCMR; and a copy of a one-page Certification of Service which forwards a copy of a “Plaintiff’s Brief, dated 10 May 1999, Appendixes marked Volume 1-5, and Excerpts Volume 1 and 2 and Reprisal Complaint filed with the EEOC [Equal Employment Opportunity Commission], dated 1 October 1999, and a letter from the U.S. Office of the Special Counsel, dated 10 September 1999.

8.  The applicant submitted additional letters and documents prior to and after the submission of his 7 October 1999 application.  These letters are discussed in date sequence.

9.  The applicant submitted a 7 July 1999 letter to the Director of the ABCMR.  In this 10-page letter, the applicant stated that Assistant District Attorney of North Texas has provided the 5th Circuit Court of Appeals with the argument that the applicant (who is also the plaintiff in the court case) “has not exhausted administrative remedies until the plaintiff is in receipt of an agency letter addressing the issues.”  The applicant states that reconsideration of the Army decision (document number AC 95-08841 which was a case considered by the ABCMR on 14 May 1997) is warranted based on “update of Congressional intent, new evidence, new law court interpretation of existing law, and media coverage of Senior Official misconduct.”  He also states: “Equity is not provided in the applicant’s case in terms of future employment and wages, loss of awards, leave time, the disadvantage of paying lump sum federal taxes, in terms of lack of payment for interest, award of attorney fees and/or costs, and that no provisions were made for compensation damages and for accountability.”  

10.  In his 7 July 1999 letter, the applicant contends that there is agency bias in the ABCMR’s interim decision and the final settlement since “compensation is severely lacking for being wrongfully discharged from the Army.”  As a result, he requests a DOD IG follow up investigation concerning the “ABCMR systemic bias and prejudice as revealed in the final settlement”; he also contends that a civil service employee, “ruled on by the EEOC or Merit Board,” who is due back pay receives it with interest and “may be awarded reinstatement with restoration of seniority, two times the amount of back pay with interest, and compensation for special damages.”  He cites four military whistleblower cases in which individuals were promoted or received monetary settlements of $235,000 to $500,000 while the applicant “requested and expected promotion and reinstatement to Army Colonel”, but was retired at the same grade without compensation except for back pay.  In conclusion, the applicant “prays that the Secretary of the Army reconsiders the equity of this settlement and amends the settlement package such that a court review of agency action is not necessary.”

11.  In his 7 July 1999 letter, the applicant also provides seven pages of reasons why the 14 May 1997 decision of the ABCMR should be amended.  First, he contends that the ABCMR’s decision not to eliminate contested OER #1 was in error, particularly since the ABCMR did not accept the recommendation of an IG at Fort Hood, Texas, to do so.  (Contested OER #1 covered the applicant’s service in Germany prior to his service at TCU and Fort Hood.)  The applicant contends that he reported sexual misconduct and misplacement of a secret document to the 1st Armored Division Commanding General and the United States Army Europe (USAREUR) IG which resulted in reprisal in the form of the referred OER (contested OER #1).  The applicant concludes that “Failure to accept the Army Inspector General’s recommendation casts doubt on the ability of the ABCMR to adjudicate fairly whistleblower cases.”

12.  The second reason given for reconsideration of his case is that the “Army’s failure to investigate misconduct places an unfair burden of proof on an injured party, especially before a record review where personal testimony is prohibited.”  In this argument, the applicant stated that he reported misconduct by the rater for contested OER #1 and agency abuse as demonstrated by a death threat made by an Army colonel. The applicant states that CID failed to investigate these instances of misconduct and these officers were successful in their part of the “conspiracy” to discharge the applicant from the Army.  He contends the rater for contested OER #1 was responsible for his elimination from the Army through malicious, willful, and deceptive perjury and misrepresentation before the Show Cause Board, but without further investigation, there can be no adjudication in his favor.  The applicant states that he wants review of “all Agency actions on the basis of fairness, equity and lawful compliance.”  He contends that the “agency’s conduct raises questions about the Agency’s position on Sexual Harassment, Adultery, cover up and reprisal actions.”  The applicant then describes several cases of “cover up”, “delay in adjudication”, and “victim reprisal”.

13.  The third reason cited by the applicant for reconsideration is that, when the ABCMR denied the applicant’s request for a personal hearing, it violated the intent of “House Bill sec 3 (d)” which states:  “The parties involved should have a right to a hearing before an Administrative Judge.”  He states that a personal hearing before the Army Discharge Review Board led to success which was a ruling in the applicant’s favor and questioning and criticism of Army chain of command actions.  He argues that, due to the severity and damage that he has suffered, “it would seem just and fair to allow a personal hearing.”  The applicant contends that, even though the ABCMR declared his discharge null and void, his rater’s reprisal actions remain an obstacle to fairness, equity and restoration of rank with seniority.  He contends that the ABCMR has the authority to grant a formal hearing, but he believes in his case “that a more prevailing interest is protecting senior officer careers rather than salvaging those that have defended and supported the constitution.”

14.  The next reason the applicant cites for review of his case is “General Officer improper influence.”  He contends that, while Major General [name omitted] was the Deputy IG of the Army, general officers influenced the applicant’s case inappropriately.  In support of this contention, the applicant cites a deposition taken from a former Chief of Staff of the 2nd Armored Division:  “I am surprised that General …..let it happen like it did… but it is bothersome that the integrity of the system is so full of holes in where we can say that we know what’s wrong.”  The applicant also states that the Army failed to take the advice of an Army IG officer who played a key role in the investigation.  He contends that the Army accepted the “advice of the Pentagon’s advisory board that his rater had not violated any rules or regulations nor was due process violated.”  The applicant argues that the IG officer recommended that contested OER #1 be removed from the records and that the applicant be reinstated with rank and compensation.  Further, he states that a lieutenant general recommended that the “injured officer be retained and promoted to lieutenant colonel and that contested OER #1 be removed from the record.”  The applicant concludes:  “A reasonable person would conclude the only reason for the ABCMR not to accept [names of three General Officers omitted] recommendation is due in part to the overt influence of General Officers to disapprove the findings of reprisal.”  The applicant states that the Major General in the Army IG office who “denied the Army Inspector General report in its entirety omitting all enclosures” made it difficult for the applicant to challenge the adulterous affair of a sergeant major at TCU and it affected the quality of defense in each of the Board’s hearings.  He contends that his rater and other conspirators took unfavorable personnel actions against him in violation of prohibitions against intimidation or reprisal, discrimination against persons who serve in the uniformed services, and prohibited personnel practices.

15.  The next reason the applicant contends that his case should be reconsidered is:  “during the adjudication and consideration for promotion to Lieutenant Colonel by two subsequent Department of the Army special selection boards, Navy Captain Army 15-6 Investigator, Captain [name omitted] documented an additional finding of reprisal (000271).  This action occurred while [the applicant] was pending federal discrimination suit 99-10161 while a member of the Texas Army National Guard (ARNG).  This finding was disapproved and withheld by, General [name omitted], the Commanding General of the 49th Armored Division.  This shows that collective guilt finds expression in retaliations of corrupt practices and that the agency had no serious intention of ending them.  Had the ABCMR been provided with this additional finding of reprisal, the Board may have considered this agency negligence in the [applicant’s] final settlement in exchange to dismiss all claims against the United States defendants.”  The applicant indicates that this DOD IG extract of investigation was released on 15 April 1999.

16.  The next reason set forth by the applicant as a basis for reconsidering his case is:  “Failure to recognize the preponderance of evidence and to allow [the applicant] to state his case.”  He contends that 72 individuals, including a County Judge and an aide to the Secretary of the Army, testified in his behalf.  He states that a statement from a World War II prisoner of war illustrates that “courageous whistle blowers have to be protected from retaliation.”  The applicant states that the “instruction letter to the President of the Promotion Board prohibited mention to whistle blower actions.”  The applicant contends that he could not state his case which is “deemed unfair and unconstitutional and unlike any hearing or court action.”  He also contends that there is a systemic and institutional bias against military whistleblowers and the Agency intended to “give [the applicant] an unequal advantage” by withholding significant information from him while preparing for the show cause board, the Army Discharge Review Board, the ABCMR hearing, and two promotion boards.  As a result, he contends the “Agency has impeded and obstructed justice” and that he has provided the court motive and evidence of conspiracy.  He continues that the promotion boards delayed the adjudication process and that the ABCMR had the authority to promote him.  But, he argues, an “Army whistle blower will not be able to overcome the prejudice of Army systems and promotion boards unless the ABCMR takes all necessary actions to make the officer whole again, compensate for the loss of schooling, loss of awards, and for the loss of prohibited personnel actions.  The ABCMR failed to compensate for these losses.  As a result the promotion boards did not select the applicant for promotion.  Had the [applicant] condoned and overlooked the misconduct, he may have been selected for General Officer or received a Doctorate Degree as a peer did at TCU who was silent to the misconduct and remained active in the conspiracy.” 
17.  In support of his request for reconsideration, the applicant contends, as summarized, that amending the ABCMR’s decision in his favor will add strength to the enforcement of adultery and sexual harassment laws.  The applicant also argues that the movie” The General’s Daughter” and the situation at TCU appear the same in so far as senior Army officers violated regulations.  He contends that senior Army officers violated Army regulations in his case; thus, the Army should take a more equitable approach in his case without sensationalism from the media or from a decision of a court of review.  He states: “If the only way for success before the ABCMR is by media and government embarrassment and Congressional Pressure, this will set a dangerous precedent.”

18.  In his request for reconsideration, the applicant also challenges the equity of “assessing dual comp pay” which was an action by the Defense Finance and Accounting Service (DFAS) resulting from the applicant’s retirement.  [This issue refers to the provision of law (in effect during the applicant’s service as a technician) which requires that a percentage of military retired pay be offset [not paid] when a Regular Army retiree holds a Federal civil service position.]

19.  The applicant contends that there is now new evidence provided by an active Army lieutenant colonel whose affidavit, dated 8 March 1999, reveals that his role as a conspirator was under orders.  The applicant states that this lieutenant colonel “records the disappearance of a black supply sergeant [name omitted], whom I [the applicant] alleged was the victim of discrimination in my report to the IG before his mystical disappearance after 18 years of honorable service.”  Withholding this and like information, the applicant contends places him at an unfair advantage and is evidence of conspiracy.

20.  The cited affidavit is actually a letter, dated 8 March 1999, from an Army lieutenant colonel to a former Assistant Secretary of the Army (Manpower and Reserve Affairs).  The subject of the letter is:  “Reopen case Docket # 
AC 95-08841, Army Board for Correcting Military Records, Army Officer Major [applicant’s name omitted].”  The officer introduces himself as having “interfaced” with the former Assistant Secretary of the Army (Manpower and Reserve Affairs) when he was  formerly assigned as an executive officer to the Director of the ARNG and states that his first assignment in the Active Guard/Reserve program was at TCU.  This officer states he regrets, “even though I was under orders, that I was a participant in the University’s and Army conspiracy to remove this outstanding officer [the applicant] from an ROTC assignment and from active duty.”  The author continues that he “witnessed a gross injustice perpetrated against [the applicant] and his family.  My Professor of Military Science, the Dean for Army ROTC Affairs, and former commander of [the applicant] conspired with an intent to harm [the applicant].  [The applicant] shows evidence of perjury and reprisal from his TCU and former commander concerning their testimony at the Army’s retention hearing.  Due to conduct unbecoming of an officer, issues as an adulterous affair, there is ample motive why the conspirators wished harm on [the applicant].  Truth may have ended the University and military officials careers.  It is my testimony that [the applicant’s] due process was violated and Army and Texas Christian University officials failed in their assessment and proceeded to hastily cover-up the situation.  [The applicant], tenaciously, reported violations of military and university policy dealing with sexual harassment and misconduct, discrimination concerning minority students and cadre, and misapplication of fiduciary property.”

21.  The Army lieutenant colonel then praised the applicant’s character, moral courage, and dedication and contends that the Army and TCU appeared to ignore compliance with the law.  The author continues by stating the applicant “deserves direct promotion and retirement at a minimum in the grade of O-5.”  Further he states his belief that there is a criminal connection involved in the removal of a black sergeant major from the TCU ROTC cadre, reprisal against the applicant, and the disappearance of a black supply sergeant, who had 18 years of service, from the TCU ROTC cadre.  The lieutenant colonel concludes his letter with a request to reopen the applicant’s case.

22.  In his 7 July 1999 letter, the applicant also contends that his compensation from the Army is “materially unfair.”  He states that he witnessed:  “(1) peers as they failed to challenge unlawful discrimination whereby blacks were made to feel inferior, (2) Army officials condoning University Army ROTC cadre actions as students were being abused, e.g. sexual intercourse, harassment and discrimination, (3) supervisors as they were misapplying fiduciary property of $14,000, a felony offense.  While promotion boards were considering selection, Army cover up continued of a field grade officer who views pornography in the federal work place during normal operation hours and who was selected for Battalion Command.  Where is the reward?  Instead [the applicant] is subject to additional reprisal:  Finding 3(d) states There is no other explanation for refusal other than in retaliation (excerpt 000271).  Reprisal came as a result of whistle blowing from reporting these protective measures.”

23.  The applicant contends that this whole matter impacts on Army trust.  He states that, without concerted caring and reconstruction efforts, recruiting, retention and readiness will be degraded and soldiers, females in particular will lack confidence in Army protection mechanisms.  He then cites his daughter’s view of how certain events have impacted on her life:  “It is my firm belief that if the Army had faced up to the problem rather than hiding, most of this would have never happened.”  He concludes:  “Reconsideration is in order.”

24.  In concluding his 7 July 1999 letter, the applicant states that he is very grateful for a partial ruling in his behalf.  He contends that, had the ABCMR been provided with all the facts (the lieutenant colonel’s statement and the assessment by the Navy captain [a DOD IG officer who investigated the applicant’s 2 September 1997 allegations against officials of the Texas ARNG] and new evidence of conspiracy) prior to its ruling, then it would have removed the contested OER and provided a more favorable settlement.  He requests:  “If reconsideration efforts are not in the making, please provide a letter in denial of back pay with interest, award of court costs and attorney fees in court cases 99-10161, case 99-60398 and ABCMR case AC 95-08841, compensation and damages for ten years of lost wages, damage to future employment, future loss of income and earnings, earnings without compensation and via FOIA [Freedom of Information Act] all promotion Board correspondence and findings.”  He states that this will resolve the Assistant U.S. Attorney’s claim that the [applicant] has not yet exhausted administrative remedies with respect to case 99-60398.  

25.  As attachments to this letter, the applicant submits his response to the DFAS letter of Agency Settlement; records and excerpts Volume I and II and filed with the 5th Circuit Court of Appeals; Title 38; Title 3, Section 417; Motion to Consolidate Appeals 99-60398 with 99-10161; “Motion for Reconsideration Em Banc Dismissal of U.S. Defendants from 99-10161.”

26.  By letter dated 25 August 1999, the applicant requested the status of an ABCMR amended decision and personal hearing.  He stated that, in July 1999, he had requested the ABCMR provide a final and amended settlement and had written to the Department of Veterans Affairs disputing a debt of $3472.33.  He also restated  the argument by the Assistant District Attorney of North Texas to the 5th Circuit Court of Appeals that the applicant has not exhausted administrative remedies.  The applicant states that he requested reconsideration of the ABCMR decision due to an update of Congressional intent, new evidence, new law, court interpretation of existing law, and media coverage of Senior Official misconduct.  He then restates the contention that equity in his case is not provided “in terms of future employment and wages, loss of awards, leave time, the disadvantage of paying lump sum federal taxes, in terms of lack of payment of interest, award of attorney fees and/or costs, and that no provisions were made for compensation damages and for accountability.”  He requests from the ABCMR: “That if your interests are best served in denial please provide justification in your response and clearly identify the equity settlement issues being denied along with instructions and application for preparing a Federal Tort Claim and for procedures to seek a judicial review of this decision, under the Administrative Procedures Act (APA) 5 U.S.C. & 702.”

27.  As background information, the applicant stated that a 19 June 1995 Department of Defense Whistleblower Reprisal Investigation substantiated reprisal.  He points out that the ABCMR partially corrected the record, reinstated the injured party and placed the victim on the retired list with back pay; that the Chief of Appeals and Corrections Branch provided notification and DA retirement orders, dated 16 December 1998; and that the Directorate of Debt and Claims Management of DFAS provided a settlement package per the ABCMR instruction letter.  However, the applicant returned his settlement check to DFAS and objected to the final settlement.

28.  In summary, the applicant restated most of the same issues raised in his 7 July 1999 letter.  He stated that there is agency bias because he was not allowed to recover compensatory damages and the ABCMR did not reinstate him with seniority.  He also contended that he is protected under the Texas Whistleblower Act of 1983 because TCU was involved and he is also protected by the Federal Whistle Blower legislation passed just two days before his “wrongful discharge”.  The applicant contended that, as a result of his reporting discrimination, wrongdoing and illegal acts and the discovery of new evidence, the Department of the Army should take an ethical stance and terminate its contract [at TCU] for discrimination. 

29.  In this letter, the applicant again requested a follow up investigation by the DOD IG on systemic bias and prejudice by the ABCMR as revealed in its final settlement. He stated that an act of sexual misconduct by an Army ROTC sergeant major “created institution and Army cover up and reprisal which received the attention of Senator [name omitted], the former Chairman of the Senate Armed Services Committee.”  He also cited the Assistant Secretary of the Army as having said:  “he now believes that he made the wrong decision and characterized it as arbitrary and contrary to the principles of equity.”  He also cites the DOD IG Report:  “[The applicant’s] Whistle Blower actions are not in dispute.”

30.  The applicant again raised the issue of relief afforded in other whistleblower cases.  He previously set forth this issue in his 7 July 1999 letter; therefore, it is not restated here.

31.  In his 25 August 1999 letter, the applicant also presented justification to amend the ABCMR proceedings in his case.  He argued that the Army’s decision not to eliminate contested OER #1 is in error.  In support of this argument, the applicant restated the arguments presented in his 7 July 1999 letter; therefore, they are only summarized here for the sake of continuity.  Specifically his justification for additional relief was the Army’s failure to accept an Army IG recommendation; the Army’s failure to investigate the applicant’s allegations of misconduct which placed an unfair burden of proof on him; the ABCMR’s denial of a personal hearing in his case; improper influence in his case by general officers; the discovery of new evidence by a Navy captain and a statement by a lieutenant colonel regarding his role in the conspiracy at TCU; failure to recognize the preponderance of evidence set forth by 72 witnesses; setting precedent in enforcing adultery and sexual harassment laws; and the impact of media attention; the impact of settlement involving the equity of assessing “dual comp”; new evidence of conspiracy involving a missing supply sergeant; that his compensation is materially unfair; and the impact on Army trust.  His summary in this 25 August 1999 letter is essentially restatement of the conclusions in his 7 July 1999 letter, and the same enclosures are cited in both letters.

32.  By letter dated 7 October 1999, the applicant corresponded through a senior member of the Senate Armed Services Committee to the Director of the ABCMR. In this letter, the applicant requested that Senator [name omitted] correspond with the Director of the ABCMR to request that contested OER #1 be removed from the applicant’s records and that the applicant’s rank “be corrected to minimum Lieutenant Colonel.”  The applicant also stated to the Senator that his attorney advised him “to correspond with the ABCMR and to encourage the agency that a settlement less than what is in effect is inappropriate, unacceptable and will be construed as additional reprisal.”  He concludes that he wants the ABCMR to retire or reinstate him as a lieutenant colonel which he states is one grade lower than he originally requested in his 6 August 1996 application to the ABCMR.

33.  With his 7 October 1999 letter, the applicant provided an executive summary; a DD Form 149 (Application for Correction of Military Record), dated 7 October 1999; his DD Form 149, dated 6 August 1999; a 20 page affidavit which contains essentially the same information as in the applicant’s 7 July 1999 and 25 August 1999 letters; a copy of his Petition to the EEOC, dated 1 October 1999, alleging prohibited personnel practices by the Texas ARNG; and a 10 September 1999 letter to the applicant from the U.S. Office of the Special Counsel which states that an order by the Merit Systems Protection Board cannot be enforced against the Texas ARNG and that the Office of Special Counsel does not have authority to investigate allegations of prohibited personnel practices while the applicant was in the military.

34.  The applicant provided the ABCMR with a copy of his 14 December 1999 letter to the U. S. Army Claims Service.  In this letter, the applicant stated that he had been provided final settlement by the ABCMR on 15 May 1999 and that disputes were still pending at the time of his letter.  He states that the ABCMR reopened his case on 7 July 1999 and the EEOC accepted his case on 1 October 1999.  He stated that on 15 April 1999 he was advised of a finding of additional whistleblower reprisal while performing in the capacity of a Texas National Guard sergeant and a military technician (a civil service position).

35.  With this 14 December 1999 letter, the applicant filed his claim “in accordance with 28 U.S.C. 2671-2680 and other related Tort Claim Statutes, arising from the acts or omission of members or employees of the Active Army, the Texas Army National Guard, and Department of Defense.”  The applicant continued:  “I requested that the ABCMR finalize my whistle blower grievances, expeditiously, and provide a denial in writing to any part of the claim in dispute.  
I will amend my claim based on the ABCMR and EEOC responses.”
36.  The applicant, in his 14 December 1999 letter to the Director of the ABCMR, requested “settlement action concerning the whistle blower actions that the Department of Defense Inspector General concluded in DOD Military Reprisal Whistle Blower Investigation Former Army Major [the applicant’s name omitted] No. H94L56226017 and subsequent reprisal while performing as a Sergeant in the Texas ARNG.  The applicant stated that, on 8 March 1999, the Secretary of the Army was provided additional evidence regarding reprisal and conspiracy and negligent or wrongful acts of federal employees committed within the scope of their employment which has resulted in damages and intentional harm to the [applicant].  The applicant also stated the following enclosures were submitted to the Secretary of the Army:  Appellant’s Response to DFAS letter of Agency Settlement; Records and Excerpts Volume I and II and filed with the 5th Circuit Court of Appeals; Title 38; Title 3, Section 417; Motion to Consolidate Appeals 99-60398 with 99-10161; Motion for Reconsideration Em Banc Dismissal of U.S. Defendants from 99-10161, and Plaintiff’s brief Volumes I-V.”

37.  In his 14 December 1999 letter to the Director of the ABCMR, the applicant also requested that the agency settle the dispute as the Attorney General’s representative in the amount of $1 Million ($500,000 for the finding of reprisal against the Department of the Army and $500,000 for the finding against the Texas ARNG).  He stated that Los Angeles County Officials agreed to pay $150,000 to drop a $13 million U.S. District Court lawsuit in a matter which the county lawyers called “an unfortunate mistake”.  He stated that in his case the Assistant Secretary of the Army characterized the misfortune “as arbitrary and contrary to the principles of equity”.

38.  In the alternative, the applicant requested a letter in denial of the claim addressing each of the issues in this letter and those reconstructed, in legal terminology, as Legal and Ethical Issues (enclosure 1), statement to the EEOC (enclosure 2) and Legal Brief to the EEOC (enclosure 3).  He states in summary that failure of the agency to make final disposition within six months from the submission of the claim (7 July 1999) is deemed to be final denial of the claim.  He further states that he has provided a monetary figure and has added clarity to the claim based on newly discovered evidence of conspiracy.

39.  The applicant provided, as part of the 14 December 1999 letter to the Director of the ABCMR, ten pages of issues essentially restated from his 7 July 1999 and 25 August 1999 letters.  To the 14 December 1999 letter, he also attached 18 pages of “Legal and Ethical Issues reconstructed and submitted to the ABCMR 12/14/1999”; 15 pages of “Statement to the EEOC dated 26 November 1999”; a two page letter, dated 8 March 1999, from an Army lieutenant colonel to the Assistant Secretary of the Army (Manpower and Reserve Affairs); and a 23 page document identified as “Complainant Legal Brief to the EEOC dated 26 November 1999”. 

40.  By letter dated 28 February 2000, the applicant requested that the Director of the ABCMR provide a status update on his case and requested that the Director include this letter as part of the official record.  In this letter the applicant contended that “New knowledge became available in March 1999 and January 2000.  Based on these new changes and conditions, an upgrade in the Director’s decision will preclude further questions of inequity.”  At enclosure 1, the applicant provided a 14 January 2000 letter from the finance officer of the Department of Veterans Affairs (DVA) Regional Office in Muskogee, Oklahoma, which granted the applicant a waiver of debt collection for education funds.  At enclosure 2, the applicant provided 66 pages of additional affidavits which identified the fraudulent conduct on the part of DOD agencies.  The applicant also requested that his “amendment to the ABCMR” requesting an upgrade be stamped “whistle blower”. 

41.  Pages 2 through 8 of the 28 February 2000 letter restated the issues raised by the applicant in his 7 July 1999, 25 August 1999, and 14 December 1999 letters.  On page 9, he provided a discussion of case law involving harassment, fiduciary crime, sexual harassment and that a Professor of Military Science is responsible to the authorities of the host institution for conducting the ROTC program in accordance with institutional rules.  In pages 10 through 18, the applicant set forth in detail the specific issues which arose during his tenure at TCU.  Based on page 24 of enclosure 2, the applicant requested that the ABCMR use its disciplinary power concerning the unbecoming conduct of a member of a law firm which is general counsel to TCU.

42.  By letter dated 31 May 2000, the applicant communicated with the new Director of the ABCMR and the Defense Office of Hearings and Appeal (DOHA). He requested that the documents attached to his letter serve as an amendment to his ABCMR case AR2000041986 and that ABCMR case AR1998014369 be consolidated with ABCMR case AR2000041986.  The applicant also submitted a DD Form 149, dated 31 May 2000, which requested:  “Consideration of additional reprisal and discrimination in violation of Title 10 1034, upgrade in promotion and compensation in damages.”  In his nine-page letter, the applicant summarized the key points in his case related to events while assigned to TCU.  He then describes events involving reprisal while he was a member of the Texas ARNG which is the basis for the additional DD Form 149.  He then stated that DOD affords victims of retaliation priority status and his case should be resolved in 
60 to 90 days.  He stated that his financial resources have been exhausted and he requested the uncontested and uncontroverted portion of his back pay settlement be paid to him and action continue to adjudicate all differences.  In pages 2 through 9, the applicant responds to a question from the DOHA adjudicator regarding the status of the court case and again restates his issues and the evidence to support his contentions.  As enclosures to his 31 May 2000 letter, the applicant provided to the ABCMR copies of his 23 April 2000 discrimination complaint to the EEOC, his 24 March 2000 Tort and whistleblower complaint provided to State District Court, and the 23 May 2000 Texas ARNG response to the EEOC.

43.  The applicant wrote again on 21 July 2000 to the DOHA adjudicator and the Director of the ABCMR.  In this letter the applicant requested a copy of the log of the materials at these agencies.  He states that he is “praying the ABCMR reconsideration of his settlement will be much more favorable due to the additional evidence of conspiracy.”  The applicant also contends that he can show an inherent loyalty and bias in favor of defending the actions of the Secretary of the Army and against victims of whistleblower retaliation.  The applicant also states that he reserves the right to seek judicial review, but hopes that he will not have to do that “due to the extraordinary interest you both may have in this whistle blower case in spite of the ABCMR position to defend the United States Army actions and reluctance to allow corrective action.”  

44.  The applicant then discusses his belief that “Army Boards lack objectivity.”  He cites the Show Cause Hearing; the action of the President of the Discharge Review Board who overruled a 4 to 1 vote which was favorable to the applicant; the findings of the 1997 ABCMR which he contends represented a “significant shortfall”; and that his visit with the Director of the ABCMR and the staff of the Senate Armed Services Committee did not produce the desired results, yet he incurred an expensive attorney fee.  The applicant states that he anticipates the officials “who were involved in the removal action, and the Army Inspector Generals will continue to influence the Board Members, the General Counsel and the Secretary of the Army that there [sic] actions were correct and harmless.”  The applicant also states that a former Deputy Army IG and Texas ARNG general officers have already improperly influenced the case.  He contends that the Chief of Appeals and Corrections (an official of the U.S. Total Army Personnel Command) had a role in the applicant’s discharge action which was deemed wrong and it seems fitting to the applicant that this senior executive would now want “to recommend a much more equitable approach to compensation, in remorse.  The applicant also contends that a Deputy Assistant Secretary of the Army should now come forward truthfully at [the applicant’s] telephone and E-mail requests (made as recently as 20 July 2000) since the applicant was responsible for rescuing him and keeping him in the TCU ROTC program.  [The Deputy Assistant Secretary of the Army referred to by the applicant was a student at TCU during the applicant’s tenure at TCU.  Also, that individual no longer serves in the Army Secretariat.]

45.  The applicant then restated the arguments and evidence in support of his case and cites case law.  In pages 9 through 13 of his letter, he restated the issues presented in his four previous letters.  In pages 14 through 18, he presents case law and arguments in support of his contentions regarding discrimination, responsibility of officials, and failure to disclose evidence.  To this letter he attached 109 pages of enclosures.
46.  By letter dated 11 August 2000, the applicant provided a letter of support from a former Deputy Assistant Secretary of the Army which described the applicant’s assistance to him as an ROTC cadet at TCU, events at the ROTC detachment at the time in question and his opinion that removal of contested OER #1 and promotion to lieutenant colonel “will correct an injustice.”

47.  The applicant’s military records show that he entered active duty on 26 May 1973 as a second lieutenant.  He was separated on 12 April 1989 with 15 years, 10 months and 17 days of active Federal service as a major.  In January 1992, after separation from active duty, the applicant joined the Texas ARNG and served as a military technician in a Federal civil service position with required military status as a sergeant.  By decision of the ABCMR on 14 May 1997, the applicant was retired effective 25 May 1993 with 20 years of active Federal service as a major.  As a result of his retirement, the applicant’s status as a technician in the Texas ARNG was terminated.

48.  Incorporated herein by reference are the Proceedings of the ABCMR, dated 14 May 1997, during its consideration of the applicant’s Application for Correction of Military Records, dated 6 August 1996.

49.  Contested OER #1 is an annual evaluation which covers the period from 1 May 1985 through 30 April 1986 for duties as an operations staff officer (S-3) in the rank of major in an infantry battalion of the 1st Armored Division in Germany. 

50.  In Part IV (Professionalism), the rater for this OER, a lieutenant colonel in command of an infantry battalion, rated the applicant under all 14 elements of professional competence as follows:

1.  Possesses capacity to acquire
    knowledge/grasp concepts	
2	8.  Displays sound judgment
	
2	
2.  Demonstrates appropriate knowledge
    and expertise in assigned tasks	
2	9.  Seeks self-improvement
	
1	
3.  Maintains appropriate level of
    physical fitness...Pass 8601	
1	10.  Is adaptable to changing
     situations	
2	
4.  Motivates, challenges and 
    develops subordinates	
2	11.  Sets and enforces high 
     standards	
2	
5.  Performs under physical and
    mental stress	
1	12.  Possesses military bearing
     and appearance...68/141 YES	
1	
6.  Encourages candor and frankness
    in subordinates	
1	13.  Supports EO/EEO
	
1	
7.  Clear and concise in written
    communication	
1	14.  Clear and concise in oral
     communication	
1	

51.  In Part IV b (Professional Ethics), the rater made positive comments about the applicant’s loyalty and his orientation on the mission.

52. Under Part V (Performance and Potential Evaluation), the rater placed his “X” in the second block (Usually Exceeded Requirements) in Part Vb (Performance During the Rated Period).  In Part Vc (Comments on Specific Aspects of the Performance), the rater noted the applicant performed his duties of S3 in an “adequate manner” and that he was one of the “harder working, if not the hardest working, officer, in the battalion”.  However, the rater also commented:  “the knack of being able to plan and supervise the execution of all the training activities associated with a fast moving, forward deployed battalion evades him.  The period was long enough to recover, but recovery never came.”

53.  In Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade), the rater placed him in the second block (Promote with Contemporaries) and stated:  “[The applicant] is well suited for his upcoming ROTC assignment.  Future assignments at higher level staff positions would be appropriate.”

54.  In Part VIIa (Potential Evaluation), the SR, a colonel in the position of brigade commander, placed his “X” in the fourth block and commented: “The rater is correct.  [The applicant’s] performance as a battalion S3 has only been satisfactory.”  The SR noted that the applicant “has done his best to respond positively to the counsel of his battalion commander and that the applicant can and will do well in any staff position which is free from the immediate pressure of having to direct and organize a staff of soldiers to plan ahead, anticipate, coordinate and execute a multitude of simultaneous missions.”  The SR acknowledged that the applicant’s contribution “has been positive and one indicative of his continued value to our Army.”  The SR profile for this OER shows the applicant as one of two officers in the fourth block (3/9/3/2*/0/0/0/0/0).  (The asterisk indicates the applicant’s position.)  Based on the SR profile, contested OER #1 was well below center of mass (COM).

55.  Contested OER #1 was referred by the SR on 28 May 1986, and the applicant responded in writing on 30 May 1986.  

56.  On 9 June 1986, the applicant requested a Commander’s Inquiry into contested OER #1.  On 13 June 1986, in response to the applicant’s request for a Commander’s Inquiry, the major general in command of the 1st Armored Division stated:  “I have reviewed your Officer Evaluation Report for the period of 1 May 1985 through 30 April 1986.  IAW paragraph 5-30c(1) I find no error, violation of the regulation, or wrongdoing has occurred.”

57.  Contested OER #1 was received by Department of the Army officials.  This OER was processed on 24 June 1986 and placed in the applicant’s OMPF on 17 July 1986.  There is no evidence the applicant appealed contested OER #1.
58.  In his 7 October 1999 application, the applicant also requests:  “Correction of OER ending April 1989”.  The applicant contends that the rater for contested OER #2 “would have marked promote ahead of contemporaries had [the applicant] not been flagged for whistle blowing.”  

59.  Contested OER #2 is a discharge evaluation which covers the period from 25 June 1988 to 12 May 1989 for duties as Assistant Chief of Staff, G-5, of the 2d Armored Division at Fort Hood, Texas, in the rank of major.  In Part IV (Professionalism), the applicant received ratings of “1” in all 14 elements of professional competence from his rater, a colonel in the position of division chief of staff.  In Part IV b (Professional Ethics), the rater made positive comments about the applicant’s mission accomplishment, knowledge of civil-military operations, achievement on the APFT [Army Physical Fitness Test], his dedication, loyalty, moral courage, work ethic and high moral standards.

60.  Under Part V (Performance and Potential Evaluation), the rater placed his “X” in the first block (Always Exceeded Requirements) in Part Vb (Performance During the Rated Period).  In Part Vc (Comments on Specific Aspects of the Performance), the rater noted the applicant has done a “superb job” as the G5.  The rater acknowledged the applicant was a hard worker, updated all of the G5 plans and operations, developed a mission essential task list, was active in establishing a relationship with the division’s supporting civil affairs unit, maintained budgetary control of five funds, established the best Community Life Program in III Corps, and upgraded the Adopt-a-School and the Adopt-a Community programs.

61.  In Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade), the rater placed him in the fourth block (Other) and stated in Part Ve (Comments on Potential):  “[The applicant] is being released from active duty by HQDA [Headquarters, Department of the Army] order.  Therefore, he is not eligible for promotion.”

62.  In Part VIIa (Potential Evaluation), the SR, the major general in command of the 2d Armored Division, placed his “X” in the second block and commented: “[The applicant] performed “superbly.”  The SR also acknowledged the applicant’s success at anticipating the division’s wartime host nation support requirements and his tenacity in pushing these programs through the bureaucracy.  The SR rated also noted that the was singularly successful in improving the relationship between the division and the local community and “was one of the best G5s with whom I have served.”  The SR profile for this OER shows the applicant as one officer alone in the second block (4/1*/0/0/0/0/0/0/0). (The asterisk indicates the applicant’s position.)  

63.  Based on the SR profile for contested OER #2, it was below (COM).  Contested OER #2 was not referred by the SR.  The applicant was given a copy of this OER on 22 May 1989.

64.  Contested OER #2 was received and reviewed by Department of the Army officials.  The OER was processed on 24 June 1989 and placed in the applicant’s OMPF.  There is no evidence the applicant appealed contested OER #2.

65.  On 5 September 1996, the Deputy Chief of Staff for Personnel Officer Special Review Board (OSRB) accepted the applicant’s case for review based on referral from the ABCMR.  The OSRB considered contested OER #1 and the subsequent OER which covered ROTC duties at TCU during the period 1 July 1986 through 7 January 1987.  However, the OSRB has not considered an appeal of contested OER #2, and the ABCMR has not requested review of contested OER #2 by the OSRB.

66.  In its case summary, dated 23 October 1996, the OSRB stated that both contested OER’s pre-dated the enactment of the whistleblower statute in 1988 (Title 10, US Code, section 1034) and the issuance of the DOD Directive 7050.6 (Military Whistleblower Protection) in 1989. 

67.  With regard to contested OER #1, the OSRB pointed out that the applicant initially contended that the rater and SR “lacked objectivity and fairness” and that subsequently, on 6 August 1996, he “alleges reprisal by the rating officials for his whistleblowing activities.”  The OSRB noted there was no evidence that the applicant reported anything against his chain of command and opined that the applicant was attempting to “piggy back” this adverse OER [contested OER #1] with the subsequent OER covering his ROTC duties at TCU which was also adverse.

68.  After a review of contested OER #1, which described the same ratings and comments previously cited in these Proceedings, the OSRB pointed out that contested OER #1 was referred to the applicant and he responded.  The OSRB also noted that the applicant requested a Commander’s Inquiry to which the Commanding General of the 1st Armored Division responded:  “I find no error, violation of the regulation, or wrongdoing has occurred.”

69.  In its review, the OSRB considered documents submitted by the applicant, the DOD IG report, dated 19 June 1995; and the ADRB finding, dated March 1993.  The OSRB reviewed the numerous statements and recommendations from Army and Air Force senior officers, leading citizens (judges, school administrators, attorneys presidents of associations, pastors, civic and community leaders); OER comments by a previous rater on the OER prior to contested OER #1; previous OER’s and APFT scores; current medical status; education level; the decision of the Assistant Secretary of the Army (Manpower and Reserve Affairs) to change the narrative reason for discharge; legislative interest in supporting public policy and law governing whistleblower protection; his ability to persevere as a major and now as a Texas ARNG sergeant; and the applicant’s view that removing contested OER #1 and the subsequent OER equate to justice, fairness and equity.

70.  The OSRB noted the numerous statements which praise the applicant’s character, work ethic, and general competence.  However, the OSRB opined that none of these personnel occupied in any way a position approximating that of the rating officials for contested OER #1, that none of these people were in a position to understand or appreciate the expectations of the rating officials for the applicant, and therefore, that none of these statements could overcome the presumption of regularity.

71.  The OSRB noted the reference to previous OER’s and ratings.  However, the OSRB opined that paragraph 4-17 of Army Regulation 623-105 (Officer Evaluation System) states that each OER must stand alone and that it will not refer to prior or subsequent reports.

72.  The OSRB cited appropriate portions of the governing OER regulation and then concluded that the ratings in contested OER #1 were the result of sub-standard performance and not the result of any whistleblowing activities.  The OSRB also pointed out that nowhere in the applicant’s rebuttal, dated 30 May 1986, to the SR did he state the ratings he received on contested OER #1 were the result of reprisal for whistleblowing activities.  The OSRB also noted that the applicant did not describe the nature of his whistleblowing activities which resulted in the alleged reprisal.  Finally the OSRB opined that the applicant was attempting to use the whistleblower argument as a “last ditch effort to get this OER [contested OER #1] deleted.  As a result, the OSRB found that the applicant’s claim that contested OER #1 was rendered in reprisal for whistleblowing activities was without merit.

73.  The OSRB concluded that the applicant had not provided sufficient convincing evidence that contested OER #1 was inaccurate or unjust or did not adequately reflect his performance during the periods in question.  The OSRB recommended that his request be denied.  The applicant was provided a copy of the OSRB case summary for comment and rebuttal.

74.  The applicant requests “Amendment to Final Settlement” in his application, dated 7 October 1999.  In correspondence already cited, the applicant originally asked to be promoted to colonel (pay grade O-6) and then in the letter accompanying his application to be promoted to lieutenant colonel (pay grade 
O-5).  The ABCMR’s 14 May 1997 decision in the applicant’s case resulted in two reconsiderations for promotion to lieutenant colonel by Department of the Army Special Selection Boards (SSB).
75.  On 20 October 1997, the applicant, through his lawyer, appealed the decision of the ABCMR to the Secretary of Defense contending that the 14 May 1997 decision by the Army to declare the applicant’s “discharge void and to retire my client is unacceptable.”  The applicant contends that he should have been promoted to colonel as compensation for reprisal caused by his whistleblower activities.  By letter dated 24 November 1997, the Acting Assistant Secretary of Defense for Force Management Policy “sustained the Army’s decision as appropriate” based on his review of the information provided by the applicant and the findings of the Army Discharge Review Board, the DOD IG, and the decision of the Assistant Secretary of the Army (Manpower and Reserve Affairs).

76.  By letter dated 21 August 1998, the Promotions Branch of the U.S. Total Army Personnel Command notified the applicant that he had been considered by the Department of the Army Special Selection Board (SSB) under the same criteria as established for the regularly constituted selection board for fiscal year 1989 that recessed on 31 August 1989.  This letter also stated that this SSB did not recommend the applicant for promotion and that he would be considered by another SSB.  By letter dated 12 November 1998, the Promotions Branch of the U.S. Total Army Personnel Command notified the applicant that he had been considered by the Department of the Army SSB under the same criteria as established for the regularly constituted selection board for fiscal year 1990 that recessed on 12 June 1990.  This letter also stated that this SSB did not recommend the applicant for promotion.

77.  In his 7 October 1999 application, the applicant also addressed what he considers to be remaining issues to be resolved by an amended agency settlement.  These issues are:  “future employment and wages, loss of awards, leave time, offset for paying lump sum federal taxes; offset for lack of interest on back pay; award of attorney fees and/or costs for litigation as result of the infliction of harm; compensation for damages; and punitive damages, and to compensate for flawed promotion system mechanism.”  Throughout his letters, the applicant refers to the following issues for which he is seeking redress.  

78.  In the matter of future employment and lost wages, the applicant addressed involuntary termination from “federal civil service” in his 2 April 1999 statement (page 2) to the Federal Bureau of Investigation (FBI).  He stated that, upon retirement as a major effective 1 June 1993, his federal civil service status was terminated because law does not allow retired officers to perform in a specific civil service technician position tied to an enlisted grade.  The applicant also stated that he went from major to sergeant and performed as a sergeant and civil service technician from November 1992 until February 1999.  He contends that, as a sergeant, he witnessed Army corruption which “exasperated the case and hindered a favorable decision by the ABCMR to compensate more completely for the injustice.”  He contends that his “shortfall is explained in terms of awards, promotion [,] schooling lost wages, interest for lost wages and now the requirement to pay $34, 521.02 for Dual comp offset and $24, 589.98 reserve offset during six years of civil service employment (another unfavorable personnel action).”  The applicant continues that had he “known that he would have to repay these earnings, he would have worked for a non-government agency” and that he views the “termination action from civil service and recoup of money as unfavorable personnel actions for being a whistle blower in the Texas National Guard.”  In concluding his statement, the applicant recommends that the Secretary of the Army consider agreeing to removal of contested OER #1 from the record; promoting the applicant to lieutenant colonel and reinstating him with compensation; directing equitable civil service employment or AGR [Active Guard Reserve] employment in the Texas National Guard as a lieutenant colonel; granting exception to recoupment of retired pay for dual compensation offset in the amount of $34,521.02 and granting exception to recoupment of $24,589.98 in reserve offset accumulated during six years of civil service employment.

79.  Payment of interest on the award of back pay is an issue raised by the applicant. In a 25 May 1999 letter, the Chief of the Claims Branch of the Debt and Claims Management Branch of DFAS notified the applicant that the United States is not liable for interest on its obligations except when the interest is specifically addressed by statute.  The letter also stated that the General Accounting Office (GAO) has consistently ruled that interest does not accrue on military back pay and that the statute governing the ABCMR does not provide authority for payment of interest on back pay awards.  DFAS also provided the applicant a copy of the GAO decision regarding payment of interest on back pay awards.

80.  The applicant addressed compensation for his lawyer fees in several of his letters.  He states that a civil service employee, “ruled on by the EEOC or the Merit Board”, who is due back pay receives back pay with interest.  He also states that a victim of retaliation under the whistleblower provision may be awarded the reinstatement with restoration of seniority, two times the amount of back pay with interest, and compensation for special damages.  The applicant cites Title 32, Code of Federal Regulations:  “(d) Army action will require remedial action desirable to resolve issues and (e) if discrimination or reprisal is found and there is an attorney of record, complainant will be advised that attorney fees and/or costs may be awarded.”

81.  By letter dated 3 March 1998, the Director of Special Inquiries for the DOD IG responded to a letter from the applicant, dated 15 November 1997, in which he alleged that he suffered reprisal for protected communications made to his chain of command, IG’s, and Members of Congress.  The Director of Special Inquiries restated the applicant’s allegations in detail as follows:  1) that corrective action implemented by the ABCMR in response to allegations of reprisal substantiated by an Army report of investigation in July 1995 was insufficient; and 2) that he was repeatedly refused a position as a staff officer with the Texas National Guard, had several award nominations denied, was threatened by his battalion commander in November 1993, and had a request for training days off denied by his brigade commander in June 1997 in reprisal for reporting standards of conduct violations by his superiors in the chain of command to IG’s.

82.  The DOD IG letter states that a preliminary inquiry was conducted under the provisions of Title 10, United States Code, Section 1034, Military Whistleblower Protection Act, and it was determined that “your allegations of reprisal do not warrant further investigation”.  The DOD IG official indicated that they concurred with the Army’s July 1995 report and recommended appropriate corrective action be taken in the applicant’s behalf, but that the DOD IG has no authority to modify the corrective actions implemented.  It was recommended that the applicant submit this matter to the Secretary of Defense for review.

83.  Regarding the allegations of reprisal while serving in the Texas ARNG, the DOD IG official stated that these allegations were “untimely under 10 U.S.C. 1034.”  She asserted that the most recent allegation was filed five months after the alleged reprisal and, in some cases, the allegations are almost four years old. The Director of Special Inquiries pointed out that the statute does not require the DOD IG to investigate allegations made over 60 days after the date on which the member becomes aware of the adverse personnel action.

84.  DOD Directive Number 7050.6, dated 20 November 1989, implements the provisions of the Military Whistleblower Protection Act (Title 10, United .States Code, Section 1034) which was enacted on 10 April 1989.  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.)

85.  DOD Directive Number 7050.6, 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.

86.  Army Regulation 20-1 (Inspector General Activities and Procedures) 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.

87.  Army Regulation 623-105 (Officer Evaluation Reporting System) provides, in pertinent part, that any OER with ratings or comments that, in the opinion of the SR, are so derogatory that the report may have an adverse impact on the rated officer’s career will be referred for acknowledgment and comment prior to forwarding to Department of the Army.

88.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.  Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

89.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  The regulation provides for a Commander’s Inquiry in cases where it is brought to the attention of a commander that an officer evaluation report (OER) rendered by a subordinate or a member of a subordinate command may be illegal, unjust or otherwise in violation of this regulation.  The primary purpose of a Commander’s Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose of a Commander’s Inquiry is to obtain command involvement in clarifying errors or injustices after the OER is accepted at Headquarters, Department of the Army. The commander involved will inquire into the matters alleged, but must confine his or her inquiry to matters relating to the clarity of the OER, the facts contained in the OER, the compliance of the OER with the governing regulation, and the conduct of the rated officer and members of the rating chain.  The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official.  

90.  Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes the policies and procedures for promotion of officers on active duty.  Paragraph 7-11 specifies that officers who discover a material error existed in their file at the time they were nonselected for promotion may request reconsideration by a special selection board.  The regulation also states requests for reconsideration will be forwarded to the Commander of the Total Army Personnel Command (PERSCOM) and reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.  Further, officers being reconsidered are not afforded the opportunity to correspond with the special selection board and their file will be reconstructed as it should have appeared on the convening date of the promotion board that failed to select the officer for promotion.

91.  Public Law 90-486, Section 709, is the National Guard Technicians Act of 1968 which governs the employment, use and status of technicians.  The law provides, in subsection (a), that under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force persons may be employed as technicians in the administration and training of the National Guard and the maintenance and repair of supplies issued to the National Guard or the armed forces.  The law provides, in subsection (b), that a technician employed under subsection (a) shall, while so employed, be a member of the National Guard and hold the military grade specified by the Secretary concerned for that position.  

92.  Army Regulation 600-8-22 (Military Awards) provides in paragraph 3-1c that the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  Paragraph 3-1d of this regulation also states that “no individual is automatically entitled to an award upon departure from an assignment.”

93.  Title 10, United States Code, Section 1552 (10 U.S.C. 1552) governs the establishment and the operations of the ABCMR.  The law provides that The Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice. The Secretary concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another's service in the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be, or on account of his or another's service as a civilian employee.  Applicable current appropriations are available to continue the pay, allowances, compensation, emoluments, and other pecuniary benefits of any person who was paid under subsection (c), and who, because of the correction of his military record, is entitled to those benefits.

94.  Army Regulation 15-185 (Army Board for Correction of Military Records) implements 10 U.S.C. 1552.  Paragraph 3-3 of the regulation states that the Army may not pay attorney’s fees or other expenses incurred by or on behalf of an applicant in connection with an application for correction of military records under 10 U.S.C. 1552.

95.  Army Regulation 15-185 (Army Board for Correction of Military Records) states in paragraph 3-5 that earnings received from civilian employment during any period for which active duty pay and allowances are payable will be deducted.  

96.  Army Regulation 15-185 governs operations of the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel and witnesses may appear whenever justice requires.

CONCLUSIONS:

1.  The Board noted that contested OER #1 covered the applicant’s performance of duty in Germany from 1 May 1985 to 30 April 1986, that this OER was properly referred to him by the SR, and the applicant submitted a rebuttal to this referred OER.  It is also noted that the applicant’s rebuttal did not raise the issue of reprisal by his rating officials. 
2.  The Board also noted that the applicant requested and received a Commander’s Inquiry into contested OER #1.  After review of matters surrounding contested OER #1, the Commanding General of the 1st Armored Division responded to the applicant that “no error, violation of the regulation, or wrongdoing has occurred.”

3.  The Board also noted that contested OER #1 was received by HQDA officials, properly processed and placed in the applicant’s OMPF.  There is no evidence the applicant acted to appeal this OER after it was filed in his OMPF.

4.  The applicant stated that the “Compelling reasons to remove this OER includes that a federal court is doomed to review the Army’s actions”; “A III Corps Inspector General recommended eliminating [the applicant’s name omitted] report”; [the applicant’s name omitted] “should be given the benefit of any doubt because Army CID failed to investigate allegations [the applicant] made against senior officials involving crime with associated punishment greater than a year”; and the “DOD IG concluded that [the applicant’s] whistleblower actions are not in dispute.”

5.  After review of the facts and allegations regarding contested OER #1, the Board concluded that the applicant received due process throughout the rendering, review, and filing of contested OER #1.  Further the Board finds that the applicant’s assertion that there will be a possible future review of contested OER #1 by a court is not a basis to remove a properly filed OER.

6.  The Board also noted the applicant submitted a letter of support, dated 31 March 1997, from a former III Corps Assistant IG regarding removal of contested OER #1.  However, there is no evidence that this former IG officer was a witness to or involved in any aspect of the applicant’s performance in Germany which was the basis for contested OER #1.  There also is no evidence that this former IG officer investigated or otherwise received first hand information regarding the basis for referral of contested OER #1 or for the Commander’s Inquiry into contested OER #1.  There also is no evidence that this former IG officer investigated any matters related to allegations by the applicant that he reported sexual misconduct and misplacement of a secret document to the 1st Armored Division Commanding General and the USAREUR IG which resulted in reprisal in the form of the referred OER (contested OER #1).  As a result, the Board determined that the recommendation made by the former III Corps Assistant IG to remove contested OER #1 is an opinion, provided ten years after the events in question occurred, based on review of the information provided by the applicant.  Therefore, the letter of support from this former IG provides no official IG position or insight into the issues under consideration by the Board and it is not sufficient as a basis for removal of a properly filed OER.  

7.  The Board noted the contention by the applicant that contested OER #1 should be removed “because the Army CID failed to investigate allegations [the applicant’s name omitted] made against senior officers involving crime with associated punishment greater than a year.”  The Board also noted the applicant’s statement to a special agent, dated 12 May 1989, which alleges, among many matters, loss of control of a classified document in Germany on or about 15 May 1986.  However, it is clear that the applicant did not raise the issues of the lost classified document or allegations of sexual misconduct in his rebuttal of contested OER #1, did not use these issues as a basis to appeal this OER, and did not raise these issues until after the Show Cause Hearing in August 1988 which resulted in a recommendation to separate him from the Army. The Commanding General of the 1st Armored Division found no error, violation of the regulation, or wrongdoing as result of the Commander’s Inquiry.  There is no evidence supporting the applicant’s contention that “Army CID failed to investigate” his allegations or the reasons therefor.  Based on these facts, the Board does not find the applicant’s argument that contested OER #1 should be removed because Army CID did not investigate his allegations sufficiently compelling to warrant removal of a properly filed OER.

8.  The applicant asserted the statement that the “DOD IG concluded that [the applicant’s] whistle blower actions are not in dispute” is a basis for removing contested OER #1.  Evidence of record shows the applicant’s statement is paraphrasing of footnote 9 on page 6 of DOD IG Military Whistleblower Reprisal Investigation H94l56226017, dated 19 June 1995.  This investigation inquired into the applicant’s allegation that denial of his appeal by the Army Discharge Review Board (ADRB) to change the narrative reason for his discharge from substandard duty performance to Secretarial Authority was a further act of reprisal. 

9.  Contrary to the applicant’s contention that the 1995 DOD IG investigation found evidence of reprisal, page 1 of the DOD IG report states: “We found no evidence that [the applicant’s] appeal was denied in 1993 in further reprisal for his whistleblowing activity of 1986 and 1987.”  The DOD IG also found that the applicant’s actions “predated enactment of the military whistleblower protection statute”, but the DOD IG chose to give the applicant “the widest possible consideration” and, as a result, the provisions of 10 U.S. C. 1034 should apply to applicant’s allegations regarding the discharge review actions of 1991 and 1993. 

10.  The 1995 DOD IG report of investigation stated that the finding of reprisal was made by the ADRB for activities described by the DOD IG as:  “On December 16, 1986, [the applicant] filed a complaint with the Inspector General of the Third Reserve Officer Training Corps Region concerning misappropriation of cadet funds, sexual misconduct, and improprieties by his rating official” and “On November 4, 1987, [the applicant] wrote the Inspector General, Department of the Army regarding the conduct of the investigation into his 1986 allegations.”  The Board noted that the 1995 DOD IG investigation considered contested OER #1 and the applicant’s subsequent OER covering the period 1 July 1986 through 7 January 1987.  The investigation clearly stated that the ADRB found that only the OER covering the period 1 July 1986 through 7 January 1987 was issued in reprisal for reporting improprieties at TCU and the ADRB and DOD IG recommended removal of only that OER.

11.  Based on the facts stated in paragraphs 8, 9 and 10, above, the Board found that the applicant’s assertion that the “DOD IG concluded that [the applicant’s] whistle blower actions are not in dispute” is taken out of context and does not apply to contested OER #1.  Further, the inference by the applicant that the DOD IG concluded that all of his actions, including those related to contested OER #1, were in fact substantiated whistleblower findings is refuted by findings of the ADRB, DOD IG and 14 May 1997 ABCMR panel.

12.  The Board noted the applicant’s contention that contested OER #1 ”would not be in his records under today’s standards.”  The applicant presented no evidence to support this contention; therefore, the Board considers it only speculation on his part. 

13.  After considering all of the foregoing, the Board concluded that contested OER #1 was properly prepared, processed and filed and that the applicant has not provided compelling evidence which justifies removal of contested OER #1.  Therefore, this Board reaffirms the decision of the 14 May 1997 ABCMR panel that there was no basis for removing or amending contested OER #1 and finds that there is no basis now for removing contested OER #1 from official records.

14.  The Board reviewed the facts surrounding the preparation, processing and filing of contested OER #2.  The contention that the rater for contested OER #2 would have marked “promote ahead of contemporaries had [the applicant] not been “flagged for whistle blowing” is speculation by the applicant.  The contentions by the applicant that a reasonable commander will use the applicant’s situation as an opportunity to expand his profile and that, absent a flag for elimination, he would have received a higher rating are also speculation on his part.  The applicant was not a whistleblower in 1986 and 1987 because the Whistleblower Protection Act and DOD Directive Number 7050.6 were not in effect at that time, and there is no evidence of any flagging action in his case which refers to the term “whistleblower.”

15.  The Board noted that contested OER #2 was a below COM evaluation. In this matter, the Board concluded that the SR did not refer it to the applicant for comment or rebuttal because the SR did not believe contested OER #2 contained comments or ratings so derogatory that the report may have an adverse impact on the rated officer’s career.  It is also noted that the applicant did not appeal contested OER #2.  In the absence of specific evidence submitted by the applicant which shows that the preparation, processing and/or filing of contested OER #2 was flawed, contrary to regulation, or inherently unjust, the Board finds that there is no basis to the applicant’s contentions regarding this OER and no basis to amend or remove contested OER #2 on the basis of error, injustice, or inequity on the part of either the rater or senior rater at the time they prepared their portions of contested OER #2.

16.  The Board also reviewed the intent of the decision by the 1997 Board which considered the applicant’s case.  In that decision, the Board directed that the applicant’s records be submitted to appropriate special selection boards for promotion consideration to lieutenant colonel and, if appropriate, to colonel after removal of the OER with an ending period of January 1987 and after inclusion of an appropriate nonprejudicial statement regarding removal of this OER. 

17.  This Board noted that, after removal of the OER covering the period 1 July 1986 through 7 January 1987, the applicant’s corrected records were considered twice by SSB’s for promotion to lieutenant colonel and that he was not selected for promotion by either board.  This Board now finds that the previous decision of the ABCMR on 14 May 1997 did not remove and that the Promotions Branch of the Army Personnel Command did not mask prejudicial language in Part Ve (This Officer’s Potential for Promotion to the Next Higher Grade), prior to consideration by the cited SSB’s.  In view of the 14 May 1997 decision of the ABCMR to continue the applicant to retirement, the comment on potential by the rater in contested OER #2 to the effect that the applicant is not eligible for promotion is inconsistent with the 14 May 1997 decision of the ABCMR and may have been prejudicial to consideration by the SSB’s.  Therefore, this Board has determined that Parts Vd and Ve of contested OER #2 should be removed in their entirety and the applicant’s corrected records submitted for consideration by two SSB’s for promotion to lieutenant colonel under the same criteria as established for the regularly constituted selection board for fiscal year 1989 that recessed on 31 August 1989 and under the same criteria as established for the regularly constituted selection board for fiscal year 1990 that recessed on 12 June 1990.

18.  The Board noted the applicant’s request for “Amendment to Final Settlement”.  The applicant contends that he deserves equity as the “victim of reprisal” by the ABCMR’s resolution of the following issues:  future employment and wages, loss of awards, leave time, offset for paying lump sum federal taxes; offset for lack of interest on back pay; award of attorney fees and/or costs for litigation as result of the infliction of harm; compensation for damages; and punitive damages, and to compensate for flawed promotion system mechanism. Specific requests for amendment are also contained in his statement to the FBI wherein the applicant recommends that the Secretary of the Army consider agreeing to removal of contested OER #1 from the record; promoting him to lieutenant colonel and reinstating him with compensation; directing equitable civil service employment or AGR [Active Guard Reserve] employment in the Texas National Guard as a lieutenant colonel; granting exception to recoupment of retired pay for dual compensation offset in the amount of $34,521.02 and granting exception to recoupment of $24,589.98 in reserve offset accumulated during six years of civil service employment.

19.  The Board noted the applicant’s request for amendment of final settlement with respect to future employment and wages as a technician in the Texas ARNG.  This matter involves Federal civil service status which is not within the jurisdiction of the ABCMR.  Therefore, the Board cannot grant the relief requested and will not consider this matter further.

20.  The Board considered the applicant’s request for amendment of final settlement with respect to loss of awards.  The Board noted the applicant’s contention that a major serving in the 1st Armored Division, in an ROTC assignment and in the 2d Armored Division would have received three Meritorious Service Medals for this service during these assignments.  The Board determined that this contention is speculation on his part and contrary to Army regulation regarding end of tour awards.  Notwithstanding his contention, the Board found that the decision to recommend and award a personal decoration rests with chain of command and the appropriate award approval authority.  In the absence of recommendations or orders authorizing a decoration, this Board is not predisposed to substitute its judgement for that of the chain of command which personally observed the applicant’s performance and had the authority to appropriately recognize his performance, if warranted.

21.  The Board noted the applicant’s request for amendment of final settlement with respect to “offset for paying lump sum federal taxes.”  Payment of Federal withholding taxes is not a matter within the jurisdiction of the ABCMR. Therefore, the Board cannot grant the relief requested and will not consider this matter further.

22.  The Board noted the applicant’s request for amendment of final settlement with respect to “offset for the lack of interest on back pay.”  DFAS has already responded to this issue and provided the applicant with the governing GAO decision which precludes payment of interest on back pay awards.  There is no statute authorizing the ABCMR to direct award of interest on back pay awards; therefore, the ABCMR is precluded from granting relief requested by the applicant and will not consider this matter further.

23.  The Board noted the applicant’s request for amendment of final settlement with respect to “award of attorney fees and/or costs for litigation as the result of the infliction for harm.”  The law and regulation governing operation of the ABCMR does not allow for payment of attorney fees or other damages.  Therefore, the relief requested by the applicant is not within the authority of the ABCMR to grant, and this matter will not be discussed further.
24.  The Board noted the applicant’s request for amendment of final settlement with respect to “compensation for damages, punitive damages and to compensate for a flawed promotion system mechanism”.  Evidence of record shows the applicant filed a claim with the U.S. Army Claims Service for personal injuries allegedly suffered beginning in 1986 as a Professor of Military Science at TCU through the period of service ending as a civilian technician with the Texas ARNG in 1999.  The Board also noted the U.S. Army Claims Service denied that claim and advised the applicant that his next available remedy is to file a suit in the appropriate United States District Court.  In view of these facts, the Board will not consider the issue of damages further.

25.  The Board noted the applicant’s contention regarding award of damages in cases decided by the Merit Systems Protection Board and the EEOC.  However, these cases involve civil service employees of the Government who do not fall under the jurisdiction of the ABCMR.  Therefore, the Board will not consider this matter further.

26.  The Board noted the applicant’s request for granting an exception to recoupment of retired pay for dual compensation offset in the amount of $34,521.02.  The applicant has incorrectly identified this amount as retired pay.  The recoupment action was generated when the ABCMR awarded the applicant approximately four years of active duty pay retroactively.  As a result, an amount equal to earnings from civilian employment during these fours years was deducted from the retroactive active duty pay amount as required by paragraph 3-2b of Army Regulation 15-185.  This recoupment action was taken by DFAS consistent with law and regulation in effect at the time the applicant’s military records were corrected by the ABCMR and payment of back active duty pay was directed by the ABCMR.  Absent any evidence that DFAS miscalculated the offset amount, erred in determining the basis for offset, or otherwise unjustly or unfairly applied the offset rule, there is no basis for this Board to grant the relief requested.  Further the ABCMR will not consider this matter further without factual evidence of such an error by DFAS.

27.  The Board noted the applicant’s request for granting an exception to recoupment of $24,589.98 in reserve offset accumulated during six years of civil service employment.  This recoupment action results from operation of law (Title 5 U.S.C. Section 5532) and regulation based on the applicant’s status as a Federal civil service employee.  In this case, his retired pay was reduced by a percentage established by law because he was a retired Regular Army officer employed in a Federal civil service position.  This recoupment action was taken by DFAS consistent with law and regulation in effect at the time the applicant’s military records were corrected by the ABCMR and the ABCMR directed retroactive payment of regular retired pay effective 25 May 1993.  Since this recoupment is the result of a Federal civil service personnel action, the ABCMR does not have jurisdiction in this matter and will not address it further.
28.  The Board noted the applicant’s argument regarding a civilian’s “right to a hearing before an Administrative Judge” as the basis for the ABCMR to grant him a personal appearance before the ABCMR, correctly known as a “formal hearing.”  However, the regulation governing the operation of the Board provides that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel and witnesses may appear whenever justice requires. 

29.  The Board noted the applicant’s contention that general officers have improperly influenced his case.  He argued that the only reasonable conclusion as to why the ABCMR did not accept the recommendations of several general officers to promote him and remove the contested OER’s in his case was the overt influence of general officers to disapprove the findings of reprisal.  This Board, which is composed entirely of senior civilian employees has had no contact with any general officers involved in the applicant’s case.  There is no evidence of general officer involvement in the 14 May 1997 ABCMR hearing.  These ABCMR panels are not required or predisposed to grant relief based on the statements or recommendations of general officers or any other particular group or class of people.  It should also be noted that the 14 May 1997 Board as well as all other ABCMR panels are required to consider all the evidence submitted by applicants and available from records and other sources and that consideration of evidence is recorded in the proceedings of the Board.  Just because the Board did not follow the recommendation by general officers in the applicant’s case is not a basis in fact that other general officers improperly influenced the outcome of his case or decisions by the ABCMR.  This Board finds that the applicant’s contention that general officers improperly influenced his case is without merit.

30.  The Board noted the applicant’s contention that “he did not receive the substantive protection of an important body of law” [the Whistleblower Protection Act].  The DOD IG and the OSRB correctly determined that the applicant’s activities in 1986 and 1987 predated enactment of the Whistleblower Protection Act covering uniformed military personnel.  The Board concluded that, while the applicant was not protected by this law in 1986 and 1987, the DOD IG, the ADRB, and the ABCMR acted in accordance with other statutes to correct injustice which resulted from an adverse OER tendered during his assignment at TCU.  The Board also concluded that invoking the Whistleblower Protection Act does not afford the applicant any additional relief because Congress had not authorized such protection or relief at the time in question and that he cannot now retroactively seek protection of current statutes not in effect at that time.  Therefore his contentions that his case should be reopened or that he should receive additional relief because his actions in 1986 and 1987 were not covered by the Military Whistleblower Protection Act is without merit. 

31.  The Board noted the applicant’s contention that preponderance of evidence has been ignored.  This contention is related to the applicant’s submission of 72 statements of support from military personnel, local officials and civic leaders. While these statements attest to their view of the applicant’s work ethic, moral values and notable achievements, these statements are not sufficient as a basis to correct records or to promote the applicant in view of evidence of record and the fact that these individuals were not present and were not involved in the events which led to the evaluations and ratings in contested OER #1 and contested OER #2 or the 14 May 1997 decision of the ABCMR. 

32.  The Board reviewed the 8 March 1999 letter, from an Army lieutenant colonel to a former Assistant Secretary of the Army (Manpower and Reserve Affairs), which the applicant contends is new evidence and proof of conspiracy.  The Board noted that the author only addressed events which occurred at TCU during 1986 and 1987 and states his belief that there is a criminal connection involved in the removal of a black sergeant major from the TCU ROTC cadre, reprisal against the applicant, and the disappearance of a black supply sergeant from the TCU ROTC detachment.  However, the Army lieutenant colonel does not provide any evidence of criminal conduct and merely states his opinion that the applicant “deserves direct promotion and retirement at a minimum in the grade of O-5.”  The Board also notes that the author of the letter had no first hand knowledge of the events in Germany which led to the ratings and comments in contested OER #1 and was not in a position to observe the applicant’s performance which was the basis for the evaluations and ratings in contested OER #2.  Therefore, the Board concluded that this letter does not have any bearing on the two contested OER’s and is not a basis for removing them from the applicant’s records.  The Board noted that the applicant was granted relief by the 14 May 1997 decision of the ABCMR for the injustice which occurred to the applicant at TCU.  However, the Board also concluded that the lieutenant colonel’s letter does not present any new evidence which warrants further relief or other actions by this Board.  

33.  The Board noted the applicant’s contention regarding systemic bias and prejudice by the ABCMR.  He cites a statement by a former Assistant Secretary that “he now believes that he made the wrong decision and characterized it as arbitrary and contrary to the principles of equity.”  This cite actually is paraphrasing of a DOD IG wording in the DOD IG Military Whistleblower Reprisal Investigation H94l56226017, dated 19 June 1995.  This investigation inquired into the applicant’s allegation that denial of his appeal to the Army Discharge Review Board (ADRB) to change the narrative reason for his discharge from substandard duty performance to Secretarial Authority was a further act of reprisal.  The actual statement was written by the DOD IG case officer and paraphrases words of a former Acting Assistant Secretary of the Army (Manpower and Reserve Affairs) as follows:  “Further, [name omitted] stated that because he was unaware of the finding of reprisal regarding that OER [for the period 1 July 1986 through 7 January 1987], he now believes that he made the wrong decision and characterized it as ‘arbitrary’ and contrary to the principles of equity which he generally employed in similar circumstances.”  In fact, the DOD IG report shows the former Assistant Secretary stated these words in concluding that the narrative reason for the applicant’s discharge should be changed as the applicant requested.  The Board concluded that the use of this cite by the applicant is out of context and clearly does not support his contention of systemic bias and prejudice by the ABCMR.  Further, the Board finds that this cite bears no relationship to the applicant’s request for removal of contested OER #1 or #2 or amendment of the final agency settlement. 

34.  The Board reviewed the applicant’s contention that he has established a “nexus” from contested OER #1, to reprisal at TCU, to his involuntary discharge from the Army, to reprisal for whistleblowing activities in the Texas ARNG.  Based on the facts and the preceding discussion in this case, it is clear that contested OER #1 is not related to whistleblowing activity or to events which occurred at TCU.  Although the OER tendered for the applicant’s service at TCU was a form of reprisal and was a substantial element in the determination to discharge him from the Army for substandard performance of duty, it is not related to his allegations of reprisal by officials in the Texas National Guard.  Therefore, the Board finds there is no “nexus” among the events described by the applicant.  As a result, the allegations of reprisal by Texas National Guard officials and the applicant’s termination from his civil service technician position have no bearing on the applicant’s request to remove contested OER #1, the request to remove or amend contested OER #2, or the request to amend the agency settlement.  Therefore, the applicant’s request, submitted on a DD Form 149 dated 31 May 2000, to consider additional reprisal and discrimination by officials of the Texas National Guard in support of his specific request for “upgrade in promotion” and for “compensation in damages” is denied.

35.  The Board noted the applicant’s contentions that his “compensation is materially unfair.”  This Board has reviewed all aspects of the decision by the 14 May 1997 Board and the evidence submitted in the case now under review.  It is noted that the applicant was separated on 12 April 1989 with almost 16 years of service and with $30,000 in severance pay.  Subsequently, the ABCMR with information from the ADRB and the DOD IG determined that an injustice existed as a result of events during his assignment at TCU.  To correct this injustice, the ABCMR determined that, if the applicant was not promoted or retained in the
Army, then he should be retired without further active duty service, but with the retirement benefits accorded to those officers who complete 20 years of active Federal service.  In the Board’s opinion, a life-time annuity and other benefits based on retirement as a major is much more “materially” fair in this case than separation with severance pay.  While this Board understands the negative impact of the recoupment actions, they are not, as the applicant contends, adverse personnel actions or reprisal.  Based on all of these considerations and the facts presented, this Board finds that compensation for the injustice, which occurred at TCU, is fair, just and sufficient and that the applicant is not entitled to any additional administrative relief available within the jurisdiction of the ABCMR. 

36.  The applicant has raised a number of issues that have already been decided by the ABCMR or other courts and agencies of competent jurisdiction.  It is not necessary for us to retrace these efforts.  The ABCMR will not consider these issues further.

37.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

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

	a.  by removing the Parts Vd and Ve, in their entirety (including the rater’s “X” in the “OTHER” block and the narrative comment) from contested OER #2 of the individual concerned which covers his service from 25 June 1988 through 12 May 1989;

	b.  by placing a non-prejudicial statement in the applicant’s OMPF regarding the removal of Part Vd of contested OER #2; 

	c.  That upon completion of the administrative corrections directed in subparagraphs 1a and 1b, above, the corrected records of the individual concerned be submitted for consideration by two SSB’s for promotion to lieutenant colonel under the same criteria as established for the regularly constituted selection board for fiscal year 1989 that recessed on 31 August 1989 and under the same criteria as established for the regularly constituted selection board for fiscal year 1990 that recessed on 12 June 1990;

2.  That upon completion of the action by the SSB’s, one of the following will occur:  

	a.  if selected for promotion to lieutenant colonel, then correct his records to show promotion to lieutenant colonel with an appropriate date of rank, that he was retired in the rank of lieutenant colonel (pay grade O-5) and tender to him all appropriate back active duty pay and allowances from his date of rank until his retirement based on the difference between his former rank of major (pay grade O-4) and his new rank of lieutenant colonel (pay grade O-5) and all back retired pay due to him for the difference between his former retired rank of major (pay grade O-4) and his new retired rank of lieutenant colonel (pay grade O-5);

	b.  if not selected for promotion, then the individual concerned will be so notified.

3.  That 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 application as is in excess of the foregoing be denied.

BOARD VOTE:  

___JNS__  __CLA__  ___TL__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		        Mr. John N. Slone_
		        CHAIRPERSON

INDEX

CASE ID	AR2000041986	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001130	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19930523	
DISCHARGE AUTHORITY	AR 635-100	
DISCHARGE REASON	RETIREMENT 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	MR SCHNEIDER 	
ISSUES         1.	193.0000.0000	
2.	131.1100.0000	
3.	131.0000.0000	
4.		
5.		
6.