PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            29 March 2001
	DOCKET NUMBER:   AR2001051753

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

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

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Christopher J. Prosser		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 officer evaluation report (OER), covering the period 5 August 1997 to 30 May 1998, be removed from his Official Military Personnel File (OMPF). 

3.  The applicant states, in effect, that the derogatory ratings and comments contained throughout the contested OER are the result of reprisal against him for a third party protected communication made by his wife to a Member of Congress (MOC). 

4.  The applicant’s military records show that he is currently serving as a lieutenant colonel (LTC) in the Individual Ready Reserve (IRR) of the United States Army Reserve (USAR).  

5.  The evidence or record shows that in January 1998, while the applicant was serving as a Civil Affairs Officer, in support of Task Force Pershing, 
Slavonski-Brod, Croatia, his wife wrote a letter to a MOC, in which, she reported crimes that had, according to her husband, been perpetrated by Serbian police forces and expressed her concern that this situation endangered her husband’s mission, his life, and she urged that changes be made.  

6.  On 17 February 1998, the MOC forwarded the wife’s letter to the Department of Defense (DoD) Congressional Liaison requesting a response and DoD forwarded the action to the Army for a reply.  On 27 February 1998, as part of the staffing process, Army officials forwarded copies of the wife’s letter through the chain of command to the Commander Joint Civil-Military Task Force (CJCMTF) via facsimile (fax) machine.

7.  On 2 March 1998, the CJCMTF initiated a commander’s inquiry to determine if the applicant had disclosed classified information to his wife.  On 15 March 1998, the investigating officer concluded that there had been no unauthorized disclosure of classified information by the applicant and recommended no further action be taken.

8.  On 12 April 1998, the CJCMTF issued the applicant a Memorandum of Reprimand (MOR) citing his reason for taking the action as the applicant’s unauthorized transmission of information of an operational nature, out of context, and in a manner and method which could and did cause misunderstanding and misinterpretation by the recipient.  The CJCMTF also noted in the MOR that information provided by the applicant to his wife resulted in a Congressional inquiry regarding a possible breach of national security.  

9.  On 18 May 1998, the applicant submitted an Army Inspector General Action Request (IGAR), requesting that he be provided whistleblower protection for the communication made by his wife to a MOC.  In his request, he alleged that he had been reprised against as a result of his wife’s letter to a MOC and he requested that the MOR he received be rescinded and that his request for an active duty tour to Fort Leavenworth be approved.  As a result of this complaint the DoD Inspector General (IG) initiated an inquiry.

10.  In July 1998, the applicant received the contested OER, which was a release from active duty (REFRAD) report, covering the period 5 August 1997 to 30 May 1998, which evaluated him as a lieutenant colonel, serving as the Civil Affairs Officer, Task Force Pershing.  The OER contained negative ratings and comments that included a 2 score in block 8 (displays sound judgement) of Part IVa (professional competence); rater placement of him in the two block (usually exceeded requirements) in Part Vb (performance during this rating period); and the two block (promote with contemporaries) in Part Vd (this officer’s potential for promotion to the next higher grade).  Finally, the SR placed him in the three block, which was a below center of mass evaluation, in Part VIIa (potential evaluation) and commented in Part VIIb (comments) that the applicant “despite his best intentions his actions were occasionally outside his area of responsibility.”  

11.  On 22 November 2000, the DoD IG published its report of investigation (ROI) concerning the events and circumstances surrounding the applicant’s allegation of reprisal.  The ROI confirmed that DoD third-party whistleblower disclosure policy was that a communication made by the spouse of a service member to a MOC may be deemed to be a protected communication and that they confirmed this protected status existed in the applicant’s case. 

12.  The DoD IG ROI conclusions substantiated that the MOR received by the applicant would not have been issued had it not been for the protected communication and the unfavorable OER was based on information brought to the attention of rating officials by the spouse’s letter to a MOC and would not have been rendered otherwise.  Consequently, it was concluded that these actions constituted reprisal under DoD Directive 7050.6.  The ROI also noted that the MOR had never been filed in the applicant’s OMPF and that he had received the active duty tour he requested.  

13.  The DOD Directive Number 7050.6, dated 20 November 1989, as amended in reissued versions, dated 3 September 1992, 12 August 1995, and on 23 June 2000, cover the Military Whistleblower Protection Act provisions contained in Title 10 of the United States Code, section 1034 (10 USC 1034).  

14.  The foregoing 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. 

15.  The 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.

CONCLUSIONS:

1.  The Board supports the DoD policy of unrestricted communication with Members of Congress and of its inclusion of third party communications by military spouses in this protected category, 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’s wife made a protected communication; that an investigation was conducted which substantiated that unfavorable personnel actions were taken in the form of the MOR issued and the adverse OER rendered.  It is also clear that the officials responsible for taking these actions were aware of the protected communication made by the applicant’s spouse and that these actions would not have occurred if the protected communication had not been made.  
3.  The Board concurs with findings of the DoD IG that substantiated the allegations that the applicant was issued an MOR and OER in reprisal for a protected communication with a MOC and therefore, granting the relief requested by the applicant is appropriate in the interest of propriety, equity, and justice. 

4.  The Board notes that, as a result of the DoD IG investigation, the MOR was never filed in the applicant’s OMPF and that he received the active duty tour he requested; thus, no further action by the Board is necessary in regard to these two requests.  However, the contested OER is still on file in the applicant’s OMPF and the Board’s concludes this contested report should be expunged from the record at this time. 

5.  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 removing the REFRAD OER, with the ending date of 30 May 1998, from the record of the individual concerned; declaring the period of service covered on the OER as a nonrated period of service; and placing a 
non-prejudicial explanation in his records explaining the gap created, in OER rating periods, as a result of this action. 

2.  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.

BOARD VOTE:  

___cjp___  ___le___  ___js ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR2001051753	
SUFFIX		
RECON		
DATE BOARDED	2001/03/29	
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.  193	111.0000	
2.		
3.		
4.		
5.		
6.