PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            24 August 2000
	DOCKET NUMBER:   AR2000043082

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Allen L. Raub		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that he be reimbursed for travel and meals for the period 17 February to 19 July 2000.

3.  The applicant states, in effect, that he was reassigned from Lithicum, Maryland to Aberdeen Proving Ground (APG), Maryland in reprisal for a protected communication he had with an Inspector General (IG).  He contends that he addressed a security concern/potential violation to an IG during a security inspection of his unit and this resulted in his being reassigned.  He also claims that as a result of this reassignment, he was forced to commute from his home in Severn, Maryland to APG, Maryland, which is 47 miles one way, on a daily basis. In support of his application, he provides the enclosed memorandum containing the dates of his travel and claim for reimbursement for expenditures on official business. 

4.  The applicant’s military records show that he is currently a Sergeant First Class (SFC) serving on active duty with the Strategic Forecasting Agency, Lithicum, Maryland.  

5.  The evidence or record shows that between 15 and 19 November 1999, while his unit was undergoing a IG security inspection, the applicant engaged in protected communications with IG inspectors in regard to a security concern/potential violation.  This communication was a discussion between the applicant and IG inspectors in regard to the propriety of having a secure telephone and key (STU-III) in a private residence.

6.  On 9 December 1999, an administrative Commander’s Inquiry was initiated on the applicant to determine his involvement/actions in issuing a STU-III and key for use in a private residence.  Specifically the inquiry was to address why the applicant did not go to his superior to express his concerns on the STU-III and key in a private residence issue; and further, why he assisted in the installation of the STU-III and key in question if he had concerns on the propriety of it being in the private residence.  

7.  On 21 December 1999, the Commander’s Inquiry on the applicant was completed and it found that the applicant appeared to be aware of the mistake (STU-III in private residence) and consciously remained silent, possibly to embarrass the unit or specific individuals.   

8.  On 4 January 2000, the applicant was informed that he was being immediately reassigned out of the unit and that this action was being taken in order to salvage his career.  At this time the applicant had an approved extension in place that stabilized him with his unit until February 2001.  

9.  On 6 January 2000, the applicant contacted the Department of Army IG (DAIG) and requested assistance to prevent his reassignment which he clamed was an act of reprisal for his protected communication with an IG. 

10.  On 17 February 2000, the applicant was reassigned from the Strategic Forecasting Agency, Lithicum, Maryland to the 203rd Military Intelligence Battalion, APG, Maryland.  The order effecting the reassignment did not authorize the use of permanent change of station (PCS) funds to move the applicant and his family and was accomplished at no cost to the government.  

11.  The DAIG conducted an investigation into the events and circumstances surrounding the applicant’s allegation of reprisal and completed their Report of Investigation (ROI) on 4 April 2000.  Their ROI substantiated the allegations that the Commander’s Inquiry conducted on the applicant was improperly initiated and that he was improperly reassigned as reprisal for making a protected communication to an IG.  

12.  On 18 May 2000, the Department of Defense (DOD) IG informed the applicant that the DAIG had completed its investigation into his reprisal allegations, under the provisions of the “Military Whistleblower Protection Act”, in which he alleged that he was reassigned in reprisal for his protected communication.  The DOD IG further stated that they reviewed the DAIG ROI and agreed with its findings and conclusions which substantiated the allegations of reprisal. 

13.  On 20 July 2000, as a result of the substantiated findings of the DAIG, the applicant was assigned back to the Strategic Forecasting Agency, Lithicum, Maryland.  

14.  The DOD Directive Number 7050.6, dated 20 November 1989, covered the Military Whistleblower Protection provisions (Title 10, U.S. Code, section 1034).  This directive was reissued on 3 September 1992.  The directive indicates that it is DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; that members of the Armed Forces shall be free from reprisal for making or preparing to make lawful communications to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; and that no employee or member of the Armed Forces may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a lawful communication to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization. 
(Note:  This directive was reissued again on 12 August 1995 to include specific other complaints as protected communications and expand the scope of persons and activities to whom a protected communication could be made.)

15.  The foregoing directive also provides that a member or former member of the Armed Forces who has filed an application for the correction of military records alleging reprisal for making or preparing a protected disclosure may request review by the Secretary of Defense of the final decision on such application.  The request for review must be in writing and include the member’s name, address, telephone number, copies of the application to the Board and the final decision of such application, and a statement of the specific reasons that a member is not satisfied with the decision.  The request for review of the final decision must be filed within 90 days of receipt of the decision by a member or former member of the Armed Forces.  The decision of the Secretary of Defense is final.  Requests based on factual allegations or evidence not previously presented to this Board shall not be considered.  New allegations or evidence must be submitted directly to the Board for reconsideration under procedures established by the Board.

16.  Army Regulation 20-1 provides, in pertinent part, that anyone (military, DA civilian, family member, or private citizen) has the right to register complaints orally or in writing with an Army IG concerning matters of DA interest.  In exercising this right, the complainant will be free from restraint, coercion, discrimination, harassment, or reprimand.  Soldiers will be encouraged to discuss their problems or grievances first with their commanding officers, as provided by Army Regulation 600-20.  However, persons desiring to submit a complaint directly to an IG at any level, but who do not wish to discuss the matter with their commanding officer or other members of the chain of command, will be permitted to do so.  Any type of disciplinary or other adverse action taken against an individual for registering a complaint, except when fraudulently made, is prohibited.

CONCLUSIONS:

1.  The Board supports the DOD policy of unrestricted communication with Congress, the IG’s, and various Government investigators, etc., as well as the protection from reprisal against those who make or prepare to make such communications.  When such reprisals occur, they constitute an injustice of the sort the Board was created to correct.

2.  The evidence of record shows that the applicant made protected communications; that an investigation was conducted which substantiated that an unfavorable personnel action was taken in the form of a transfer to APG, Maryland.  It is also clear that the official responsible for taking this reassignment action was aware of the applicant’s protected communications and that this action would not have occurred if the protected communications had not been made.  

3.  The Board noted that, as a result of the DAIG investigation, the applicant has been assigned back to his original unit and that he has been appropriately reimbursed for any lost basic allowance for housing (BAH) that resulted from his improper reassignment.  The remaining issues raised by the applicant are reimbursement for his daily travel to APG and per diem reimbursement for meals during the period he was assigned to APG.  

4.  Given the impropriety of the applicant’s reassignment, as substantiated in the findings of the DAIG and the DODIG, the Board concludes that it would be in the interest of justice to reimburse the applicant for his daily travel to APG.  However, after full and careful consideration, the Board finds that it would not be appropriate to provide the applicant an additional meal allowance.  

5.  While specific allowance information is not contained in the evidence of record or the independent evidence submitted by the applicant, the Board presumes that the applicant was receiving either a “separate rations” or “rations not available” meal allowance during the time he was assigned to APG.  One of which would be the appropriate meal allowance under the circumstances.  

6.  In the opinion of the Board, there is no rationale to grant the applicant an additional per diem meal allowance.  The applicant was commuting to a military installation, where a government mess facility was available.  It is presumed that he was being provided the proper meal allowance for the circumstance, and his family remained in their established residence for which he has already been provided the appropriate BAH.  Under these circumstances, the Board finds any further meal per diem reimbursement would not be appropriate.  Therefore, the Board concludes that this particular requested relief is not warranted.  

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was authorized reimbursement at the appropriate rate for his daily travel from Lithicum to APG Maryland between 17 February and 19 July 2000.

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

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

BOARD VOTE:  

___gp___  ___alr___  __clg____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____George D. Paxson_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000043082	
SUFFIX		
RECON		
DATE BOARDED	2000/08/24	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT PARTIAL 	
REVIEW AUTHORITY		
ISSUES         1.  283	128.0000	
2.		
3.		
4.		
5.		
6.