PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            30 January 2001
	DOCKET NUMBER:   AR2000046566

	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. Arthur A. Omartian		Chairperson	
	Ms. Brenda F. Hirschi		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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 an F grade he received in a 401 Military Science (MS) class for the Fall 1997 semester be changed to an I (incomplete); that he be allowed to retake the MS 401 final examination; that C grades he received for a 402 MS class and a 432 Military History (MH) class be changed to A grades; and that he be reimbursed for room and board payments he made that should have been paid under the terms of his ROTC scholarship.

3.  The applicant states, in effect, that he was a scholarship student in the Army Reserve Officer Training Corps (ROTC) at St. Augustine’s College, Raleigh North Carolina, and while there he received improper grades and was forced to pay room and board expenses in reprisal for a protected communication covered by the “ Whistleblower Protection Act.”  He claims that he was not allowed to take the MS 401 final examination in spite of his attempts to do so and that he should have received A’s instead of C’s in his 402 MS class and 432 Military History (MH) classes because he did all his work, passed the examinations, and attended the labs.  He also indicates that he was placed in a Leave of Absence (LOA) status and his room and board payments were stopped in reprisal for his refusing to divulge the names of those cadets who had complained of sexual harassment by the cadre.  Finally, he states that the Department of the Army Inspector General (DAIG) substantiated that these actions were taken in reprisal for conduct protected under the “Military Whistleblower Protection Act.” 

4.  The applicant’s military records show that he was an Army scholarship cadet attending St. Augustine’s  College during the period September 1995 through May 1998.  

5.  A Cadet Record Brief (CRB) on file, dated 6 April 1999, shows that the applicant was scheduled to be commissioned in an active duty status with a basic branch of Quartermaster Corps upon completion of his ROTC program requirements and receiving his baccalaureate degree. 

6.  On 11 October 1997, the applicant was involved in an incident with an ROTC cadre member.  This resulted in his being informed that an investigation into the incident would be initiated and that he would be placed on a LOA pending the outcome.  However, he was told that he would be allowed to continue to attend class and go to physical training (PT).  

7.  Between the middle of October and the middle of November 1997 the applicant, acting in his capacity as the Cadet Chaplain, received numerous sexual harassment complaints from female cadets.  

8.  On 12 November 1997, the applicant attended a meeting at the request of female students who had wished to discuss sexual harassment complaints against the cadre.  At this meeting the female cadets indicated they were ready to proceed with filing formal Equal Opportunity (EO) and Inspector General (IG) complaints of sexual harassment by the cadre.  The applicant offered to work with the chain of command to resolve the issues and the females agreed to withhold their complaints while he attempted to solve the problem.  However, the female cadets did request that the applicant not release their names to the chain of command because they felt intimidated by the rank structure. 

9.  On 13 November 1997, the applicant met with members of the cadre and presented the sexual harassment complaints of the female cadets.  At this meeting he was ordered to reveal the names of those female cadets that were complaining of sexual harassment and he refused to do so.  

10.  On 14 November 1997, the applicant was approached before PT and again asked to provide the names of female cadets that were complaining of sexual harassment and he once again refused.  Later that same day he was presented with a memorandum from the Professor of Military Science (PMS), which formally placed him on a LOA and a memorandum, dated 22 October 1997, which informed him of the intent of the PMS to disenroll him based on the 11 October 1997 incident. 

11.  On 26 November 1997, the applicant received a memorandum from the PMS which advised him that in connection with disenrollment proceedings an investigating officer had been appointed to look into the 11 October 1997 incident.  On 18 February 1998, the PMS issued a letter informing the applicant that he had received the findings and recommendations of the investigating officer and had made his final judgement.  The PMS directed a letter of reprimand be issued and publicly posted and that applicant make a public apology; perform extra duty; forfeit the full amount of the room and board scholarship benefits provided by St. Augustine’s College; and present a 
15 minute class on military courtesy.  

12.  The applicant provided a transcript of his college credits, dated 21 July 1998, which shows that during the Fall 1997 semester he received an F grade in his MS 401 class and C grades in his MS 402 and MH 432 classes.

13.  In the fall of 1998, the applicant moved to El Paso, Texas because he was under the impression that he would be disenrolled from the ROTC program based on his having received an F in his MS 401 class.  Upon his departure from St. Augustine’s he had two remaining requirements that prevented him from being commissioned, these were to make-up the MS 401 final examination and to retake a Microbiology course that he had failed during the Spring 1998 semester.

14.  On 4 March 1999, the applicant’s case was originally submitted to the Training and Doctrine Command (TRADOC) IG who in turn referred the case to the Cadet Command IG on 11 March 1999.  Upon a determination that the case could potentially involve a “Whistleblower Protection Act” violation, it was forwarded to the DAIG who directed a full and comprehensive investigation into the allegations. 

15.  Upon completion of the investigation into the events and circumstances surrounding the applicant’s allegation of reprisal the DAIG approved a Report of Investigation (ROI).  The ROI substantiated the allegation that the attempts to disenroll the applicant from the ROTC program and his being placed on a LOA were in reprisal for his protected communication.  It further indicated that as a result of the ROI findings, command action had been taken to make the applicant whole as if the reprisal actions had not been taken. This command action consisted of a directive issued by the Commanding General of Cadet Command which stipulated that the applicant would be given the opportunity to make-up missed work and be commissioned once all requirements were fulfilled. 

16.  On 15 February 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” and substantiated his allegation that the attempt to disenroll him from the Army ROTC program at St. Augustine’s College and his being placed on a LOA were reprisal actions based on sexual harassment complaints he made in behalf of other students.  The DOD IG further indicated that they had conducted a thorough review of the Army ROI and agreed with its conclusion. 

17.  In connection with the processing of this case an advisory opinion was requested of and received from the Army Cadet Command, dated 12 December 2000.  They opine, in effect, that based on the evidence the applicant should be retained in the ROTC program and afforded the opportunity to retake his MS 401 examination in order to complete his ROTC program requirements.  They further indicate that if the applicant passed the examination he would be placed in a completion cadet status and be allowed time to complete his degree requirements.  This would lead to his subsequent commissioning as a second lieutenant in the United States Army Reserve (USAR) as a transfer student at the University of Texas at El Paso (UTEP), where he was currently completing his undergraduate work.  

18.  They further indicate that they tasked the PMS at UTEP to coordinate with the PMS at St. Augustine’s in order for the applicant to be enrolled in the UTEP ROTC program as a transfer student and to administer the final examination for completion of MS 401 prior to the end of the Fall 2000 semester. However, they also comment that if after being given ample time to prepare the applicant passes the MS 401 test administered at UTEP and is granted completion cadet status in that program, he would be required to complete his baccalaureate degree within the constraints of the Memorandum of Understanding (MOU) for Completion Cadets.  If he failed to receive his degree within the timeframe allowed under the MOU, by regulation, his disenrollment would be required.  Finally, they take the position that the applicant had received his full monetary scholarship entitlement and would not be entitled to any further monetary benefit, which includes scholarship funds and or reimbursement for money expended for room and board. 

19.  The applicant was provided a copy of the Cadet Command advisory opinion and given an opportunity to respond, which he did on 12 December 2000.  In his rebuttal, he states the Cadet Command response failed to meet the commitments.  He indicates that the Commanding General of Cadet Command, in his 15 November 2000 directive, indicated that he would be given ample opportunity to prepare for and be retested in MS 401 prior to the end of the Fall 2000 semester, an action which to date has not been accomplished.  He also claims that he made many attempts to contact the PMS at UTEP to arrange to take the examination and when he finally was allowed to talk to the PMS, after repeated attempts, he was advised that he could not take the examination because coordination with St. Augustine’s had not yet occurred. 

20.  The applicant also contends in his rebuttal that in order to be made whole he would necessarily have to be commissioned with a basic branch of Quartermaster and concurrently ordered to active duty as was scheduled prior to the reprisal action taken against him.  Short of this, the Cadet Command would not be fulfilling its commitment as documented in the IG ROI, which indicated that the command would take action to make him whole by restoring him the same or equal status as if the reprisal had not occurred.  Finally, he claims that his request for reimbursement for room and board payments is justified because this was money forfeited as a direct result of reprisal action taken by the PMS at St. Augustine’s College and was a payment that normally would have been made under the terms of his ROTC scholarship. 

21.  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.)

22.  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.

23.  Army Regulation 20-1 provides, in pertinent part, that anyone has the right to register complaints 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 commander 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 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 an attempt to disenroll him from the ROTC program and his placement on a LOA.  It is also clear that the official responsible for taking these unfavorable personnel actions was aware of the protected communications and that these actions would not have occurred if the protected communications had not been made.  

3.  The Board finds the applicant’s claims that he should have received an 
I (incomplete) grade as opposed to the F grade in his MS 401 class and that he should be allowed to take the final examination have merit. 

4.  In the opinion of the Board, the disenrollment proceedings and the LOA status the applicant faced directly contributed to his receiving an F in the MS 401 class. These personnel actions were clearly reprisal actions based on sexual harassment complaints he made in behalf of other students, and therefore, the Board concludes that it would be appropriate for the PMS at St. Augustine’s College to substitute an I grade for the Fall MS 401 class in lieu of the F grade currently recorded on the applicant’s college transcript.

5.  The Board also noted that Cadet Command officials committed to providing the applicant ample opportunity to prepare and take the MS 401 examination prior to the end of the Fall 2000 semester and to date have failed to fulfill this obligation. 

6.  Given the failure to take the necessary action to make the applicant whole as if the reprisal actions had not taken place, as committed to by Cadet Command in the DAIG ROI, the Board finds that it would be appropriate at this time to grant the applicant constructive credit for the MS 401 class and to immediately place him in a completion cadet status until he finishes his baccalaureate degree requirements, at which time he should be commissioned in the Quartermaster Corps in an active duty status. 

7.  Notwithstanding the opinion of Cadet Command officials that the applicant is not entitled to any further scholarship payments or reimbursement for monies expended, the Board finds his claim for reimbursement for room and board monies expended has merit. 

8.  The evidence clearly shows that the PMS at St. Augustine’s College directed the applicant forfeit his room and board entitlement as part of his final judgement in the disenrollment proceeding taken against the applicant, which was later confirmed to be an act of reprisal.  Thus, the Board finds, in the interest of justice and equity, that the applicant should be reimbursed for any payments he made to St. Augustine’s College that ordinarily would have been paid for him under the terms of his ROTC scholarship. 

9.  Finally, the Board finds no merit in the applicant’s contention that C grades he received in MS 402 and MH 432 classes should be changed to A grades.  There is no evidence in regard to the quality of the applicant’s work in these classes or that the grades were issued in reprisal for his protected communication.  Thus, the Board finds this requested relief is not warranted. 

10.  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 granting the individual concerned constructive credit for passing the MS 401 course and by immediately placing him in a completion cadet status pending his completion of his baccalaureate degree requirements.  

2.  That upon his successful completion of his baccalaureate degree requirements the individual concerned be commissioned in the Quartermaster Corps and concurrently ordered to active duty as was scheduled prior to the reprisal actions.  

3.  That the individual concerned be reimbursed for all room and board expenses he paid as a result of the reprisal action that directed he forfeit this entitlement, which otherwise would have been paid under the terms of his ROTC scholarship. 

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

5.  That following the 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. 

BOARD VOTE:  

___ao___  ___bfh __  ___teo __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Arthur A. Omartian____
		        CHAIRPERSON

INDEX

CASE ID	AR2000046566	
SUFFIX		
RECON		
DATE BOARDED	2001/01/30	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  1021	100.0000	
2.		
3.		
4.		
5.		
6.