PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            18 March 2003
	DOCKET NUMBER:   AR2003084426

	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	
	Ms. Maria C. Sanchez		Analyst	

The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Margaret V. Thompson		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 that the Officer Evaluation Report (OER) covering the period from 21 September 2001 to 3 March 2002 be removed from her Official Military Personnel File (OMPF).

3.  The applicant states, in effect, that the OER written for the period 21 September 2001 thru 3 March 2002 was used as reprisal against her for a protected communication.  It has been substantiated by the Department of Defense (DOD) Inspector General (IG), the Department of the Air Force IG and the Washington National Guard State IG.

4.  The applicant’s military records show that while serving on active duty in the Washington Army National Guard (WAARNG), the applicant, while serving in the rank of chief warrant officer three (CW3), received a change of duty OER covering the period 21 September 2001 thru 3 March 2002.  The report evaluated her as a Raid Pilot/Safety Officer and was forwarded to her in March 2002.

5.  In part V under performance and potential evaluation, the rater gave the applicant an outstanding performance, must promote rating.  The rater indicated that the applicant’s integrity and professionalism were truly part of her character and that she’s an outstanding soldier, leader, aviator and member of the WAARNG.

6.  In part VI, intermediate rater evaluation, the intermediate rater indicated that the applicant performed in a reasonable manner and accomplished her duties and tasks on a solid level.  However, there was a concern about the applicant’s lack of consideration towards her peers and that she needed to improve her working relationships with others to be effective as a team player.

7.  On 12 April 2002, the applicant contacted the WAARNG IG and filed an allegation of reprisal under the Whistleblower Protection Act because she had contacted the WAARNG IG about a command policy that she believed was incorrect.  On 25 April 2002 the WAARNG IG notified the Secretary of the Air Force (SAF) IG to review the complaint.  On 22 July 2002, the WAARNG IG completed their investigation.

8.  The investigation concluded that the applicant’s intermediate rater had in effect, stated derogatory remarks on her OER because he was angry with her and he was tired of her going over his head in the chain of command.  The intermediate rater admitted that some of the information in the applicant’s OER occurred outside of the reporting period and that he has reprised against other members of the unit for similar incidents by giving them an adverse OER.  The investigation substantiated the applicant’s allegations of reprisal for making a protected communication.  The DOD IG, the WAARNG IG and the SAF IG concurred with the findings of the investigation and advised the applicant to apply to the Board for correction of her records.

9.  A review of the applicant’s OER history shows that she has never received less than a maximum rating from any of her raters or less than center of mass ratings from her senior raters.

10.  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 a lawful communications to a Member of Congress, an IG, or a member of 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 the DOD audit, inspection, investigation, or law enforcement organization.  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.

11.  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 the 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.

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

CONCLUSIONS:

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

2.  The evidence of record indicates that the applicant made protected communications; that an investigation was conducted which determined that unfavorable personnel actions were taken in the form of an OER by the intermediate rater that was deemed unfavorable, and that the officials responsible for taking those unfavorable personnel actions were aware that the applicant had made protected communications.  Further, it appears that the unfavorable personnel actions may not have been taken if the protected communications had not been made.

3.  Inasmuch as the applicant has requested total removal of the OER from her OMPF and given the findings of the DODIG, the WAARNG IG and the SAF IG, the Board finds it in the interest of justice to remove the report as requested by the applicant.

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

RECOMMENDATION:

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

a.  by removing the OER ending 3 March 2002 pertaining to the individual concerned in its entirety from her OMPF; and

b.  by declaring the period of the contested report as non-rated time and placing a non-prejudicial statement in her records to explain the non-rated period of service.

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:  

__jlp____  __mvt___  __ao____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Jennifer L. Prater____
		        CHAIRPERSON

INDEX

CASE ID	AR2003084426	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/03/18	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  193	111.0000	
2.  194	111.0100	
3.  		
4.		
5.		
6.