RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2007 DOCKET NUMBER: AR20060014972 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. x The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the removal of flagging actions, a general officer memorandum of reprimand (GOMOR) and a relief for cause officer evaluation report (OER) from his military record. He also request that he be promoted to the rank of captain (CPT), that he be awarded the Bronze Star Medal (BSM), the Combat Action Badge, the Shoulder Sleeve Insignia – Former Wartime Service (SSI-FWTS) and the Legion of Merit LOM). He further requests that he receive recognition for his 21 years of service because he was denied a retirement ceremony, that he receive a final OER reflecting his actual performance in Iraq, that he receive a retirement physical, that his retirement points be corrected and he be allowed to review them, that he receive a formal apology from his former company and battalion commanders to be filed in his official records, that the death of two Soldiers be corrected to reflect that they died heroically in combat in support of Operation Iraqi Freedom, that one of the two Soldiers be awarded the Medal of Honor posthumously, that an inquiry be conducted on the recommendations for awards submitted on the two Soldiers, that his platoon sergeant’s records be cleared of all derogatory information, that the charges against his company and battalion commander be acted on (final disposition), and that his military career be restored to reflect service of the highest honors. 2. The applicant states, in effect, that he was the victim of reprisals by his company and battalion commanders because of his having made protected communications to the Inspector General (IG) and members of Congress. He goes on to state that as a result of the reprisals, he received a GOMOR and a relief for cause OER and he was unjustly denied an end of tour award of the BSM. He also states that he should have been awarded the CAB, the SSI-FWTS and a Legion of Merit at the time of his retirement. Additionally, he states that he should be promoted to the rank of CPT, that he should receive proper recognition for his 21 years of service, yet he was denied a retirement ceremony, that he should receive an OER that properly reflects his performance in Iraq, that he should receive a retirement physical, that his retirement points should be corrected, that he should be issued a formal letter of apology from his company and battalion commanders to be placed in his Official Military Personnel File (OMPF), that the records of two Soldiers who drowned in Iraq be corrected to reflect that they died heroically in combat and one of the Soldiers should be awarded the Medal of Honor. He continues by stating that an inquiry should be conducted regarding recommendations for awards for the two Soldiers, that a disposition of the charges against the two commanders be made, that the records of his platoon sergeant be cleared of derogatory information and that his record be restored to the highest military honors. 3. The applicant provides a copy of a review of a report of investigation (ROI) of the Inspector General conducted by the National Guard Bureau, a memorandum for record describing the applicant’s duties performed during Operation Iraqi Freedom, a letter from the Office of the Judge Advocate General regarding an investigation conducted under Article 138, a copy of a request to the Acting Secretary of the Army to conduct a 138 investigation, a copy of orders transferring him to the Retired Reserve, a copy of his reports of separation (DD Form 214 and NGB Form 22), a timeline sheet, a CAB Recipient listing, a third party statement from one of the two Soldiers who subsequently were drowned, copies of Certificates of Appreciation to the two drowned Soldiers, a copy of his GOMOR and rebuttal statement, and a copy of his relief for cause OER and related documents. CONSIDERATION OF EVIDENCE: 1. The applicant requested correction of his records to show the award of the Combat Action Badge. There are no orders or other evidence authorizing award of this decoration to the applicant. In the absence of a proper award authority for this decoration, the applicant may request award of the Combat Action Badge through the United States Army Human Resources Command Military Awards Branch. The applicant has been notified by separate correspondence of the procedures for applying for this decoration and, as a result, the Combat Action Badge will not be discussed further in this Record of Proceedings. 2. The applicant is requesting correction of records of other Soldiers of which he has not shown a proper interest as defined by the regulation that governs the operation of this Board. Therefore, in the absence of evidence to establish such interest, no further discussion regarding the correction of other Soldier’s records will be made in this Record of Proceedings. 3. The applicant initially enlisted in the United States Army Reserve (USAR) under the delayed entry program (DEP) on 20 September 1983. He enlisted in the Regular Army on 8 August 1984 and served until he was honorably discharged in the pay grade of E-6 on 25 July 1992. He enlisted ion the Ohio Army National Guard (OHARNG) on 26 July 1992 and continued to serve in an enlisted status until he was discharged on 15 August 1998 to accept a commission in the OHARNG. 4. He was commissioned as a military police (MP) second lieutenant in the OHARNG on 16 August 1998. He was promoted to the rank of first lieutenant on 15 August 2000. 5. On 24 February 2003, the applicant was ordered to active duty (mobilized) in support of Operation Enduring Freedom/Iraqi Freedom. He was initially transferred to Fort Lee, Virginia and then to Camp Virginia, Kuwait on 17 May 2003, for duty as a MP Platoon Leader. 6. On 1 October 2003, the applicant was issued a Notification of Eligibility for Retired Pay at age 60 (20-year letter). 7. On 15 October 2003, the applicant submitted an IGAR to the 5th Corps IG office. He submitted additional allegations on 15 November and 16 December 2003. In January 2004, he submitted a request for an Article 138 investigation to the Acting Secretary of the Army. 8. On 14 February 2004, the applicant was issued a GOMOR by the Deputy Commanding General of Combined Task Force Seven in Baghdad, Iraq. 9. On 18 February 2004 he submitted an IGAR to the Fort Lee IG office and on 14 April and 17 May 2004, he had communications with the Secretary of the Army IG (SAIG) Office. On 14 March 2004, the applicant submitted a rebuttal to the GOMOR. There is no evidence of either the GOMOR or the rebuttal being filed in his records. 10. Meanwhile, on 26 March 2004, he was honorably released from active duty at Fort Lee due to completion of required active service. He had served 1 year, 1 month and 3 days of active service during his current mobilization and he was returned to the OHARNG. 11. On 1 December 2005, the IG of the State of Ohio (Adjutant General’s Department) published the results of a whistleblower IG Preliminary Analysis Inquiry into the allegations of Whistleblower Reprisal and forwarded the report to through the IG of the National Guard Bureau (NGB) to the DAIG. The investigating official determined that the applicant’s allegation that he had been threatened by his commander in the form of a counseling statement to prohibit him from filing a MP Report was substantiated. 12. Additionally, his allegations of reprisal regarding his being refused to visit with his visiting congressmen, his being REFRAD out of the theater, his not being recommended for a service award at the end of his tour, that he was being relieved of his duties, that he was given a relief for cause OER, that he was threatened to be written up for an unsecured weapon if he filed an MP report against the first sergeant for assault and failure to obey an order were all substantiated. The investigating officer also offered that it was command policy that all Soldiers receive a service award at the end of their tour if there had been no disciplinary action taken under the Uniform Code of Military Justice and that in his opinion, the applicant deserved the BSM. 13. On 11 July 2006, the NGB IG Office informed the Department of the Army Inspector General’s (DAIG) office that a review of the ROI pertaining to the applicant indicate that the applicant’s allegations of reprisal in the issues of being REFRAD out of theater, that he would not be recommended for an award, his suspension from platoon leader duties, his relief for cause OER, his not being returned to his original unit, his being denied the opportunity to meet with his visiting congressmen, his being threatened regarding his filing an MP report against the 1SG, were substantiated. 14. On 2 August 2006, the DAIG office dispatched a letter to a member of Congress informing him that the DAIG had completed its investigative inquiry into the applicant’s reprisal allegations and that the Department of Defense Inspector General (DODIG) agreed with the conclusions that the applicant’s allegations that his battalion commander recommended he be returned from active duty out of theater in reprisal for protected communications was substantiated, that his battalion commander did not recommend him for a service award in reprisal for protected communications was substantiated, that his battalion commander suspended him from platoon leader duties in reprisal for protected communications was substantiated, that his battalion commander denied him the opportunity to speak with members of Congress in reprisal for protected communications was substantiated, that his battalion commander rendered a relief for cause OER in reprisal for protected communications was substantiated, that his company commander did not recommend him for a service award and rendered a relief for cause OER in reprisal for protected communications was substantiated and that his company commander threatened to write him up regarding an unsecured weapon incident if he filed a military police report alleging the first sergeant assaulted him and failed to obey an order for protected communications was substantiated. 15. A review of the applicant’s Official Military Personnel File reveals no derogatory information other than the relief for cause OER. His previous evaluation reports shows that he was rated as a center of mass and above center of mass officer. There is no indication that he appealed the relief for cause OER to the Officer Special review Board (OSRB). Additionally, his records indicate that his eligibility date for promotion to the rank of CPT was 14 August 2005 and there is no evidence in his records to show that he completed his bachelors degree. 16. Army Regulation 600-8-22 serves as the authority for military decorations and awards. It states, in pertinent part, that military decorations are awarded in recognition of heroism, meritorious achievement, or meritorious service. No individual is automatically entitled to an award upon departure from an assignment. 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. 17. 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.) 18. 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. 19. 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. 20. Army Regulation 135-155 provides policy for selecting and promoting commissioned officers of the Army National Guard and the United States Army Reserve (USAR). It provides, in pertinent part, that effective 1 October 1995, no person may be selected for promotion to the Reserve grade of CPT unless, not later than the day before the selection board convene date, that person has been awarded a baccalaureate degree from an accredited institution. It also provides that the minimum years in grade required for promotion to the rank of CPT is 2 years and the maximum is 5 years in grade. 21. Army Regulation 635-10, Processing Personnel for Separation, provides, in pertinent part, that there is no statutory requirement for Soldiers of the active Army, including United States Military Academy cadets and members of the Reserve components on active duty or active duty for training to undergo a medical examination incidental; to separation from Active Army Service. However, it is Army policy to accomplish a medical examination is a Soldier is Active Army and retiring after 20 or more years of active duty or a Soldier is being discharged/released from active duty and requests a medical examination. 22. Army Regulation 15-185 governs the operations of the ABCMR. Paragraph 2-5 of this regulation states that the ABCMR will not consider an application until an applicant has exhausted all administrative remedies to correct the alleged error or injustice. That regulation also provides that an applicant with a proper interest may request correction of another person’s military records when that person is incapable of acting on his or her own behalf, missing or deceased. Depending on the circumstances, a child, spouse, parent or other close relative, heir, or legal representative (such as a guardian or executor) of the Soldier or former Soldier may be able to demonstrate a proper interest. Applicants must send proof of [proper interest with the application when requesting correction of another person’s military records. 23. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Medal of Honor is awarded by the President in the name of Congress to a person who, while a member of the Army, distinguishes himself conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty while engaged in an action against an enemy of the United States. The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved risk of life. Incontestable proof of the performance of the service is required. 24. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years. 25. Army Regulation 670-1 (Uniforms and Insignia) governs the requirements for wear of the shoulder sleeve insignia for former wartime service, commonly referred to as a “combat patch”. In pertinent part, the regulation authorizes optional wear of the U.S. Army shoulder sleeve insignia of any former wartime unit in which a Soldier served during a period of eligibility. Periods of eligibility are announced by Department of the Army and only shoulder sleeve insignia approved for wear by Headquarters Department of the Army are authorized to be worn on the right sleeve of the Army Green and field uniforms to signify wartime service. There are no provisions for entering the shoulder sleeve insignia for former wartime service on the DD Form 214. 26. Paragraph 1-24 of Army Regulation 600-8-22 (Military Awards) governs the recognition of Reserve Component members upon death, discharge, or transfer to the Retired Reserve. Specifically, this paragraph states that appropriate recognition may be extended to members of the Army National Guard of the United States and the USAR, not on active duty, who have distinguished themselves in the defense of the United States over a period of many years, often at personal expense, inconvenience, and hardship, and those who by their acts or achievements have made major contributions to the Reserve Components. Members voluntarily electing discharge or transfer to the Retired Reserve may also be considered. Members who are discharged or transferred to the Retired reserve may be accorded appropriate recognition by farewell letters from the State Adjutants General, letters of appreciation and commendation and other awards as authorized in that regulation. In addition, it states that ceremonies will be conducted as appropriate, through existing liaison with State military authorities. Official recognition and appreciation of the Department of the Army may be given to Army National Guard personnel removed from active Reserve status. States authorities will conduct the ceremonies. 27. Army Regulation 600-8-22 (Military Awards) also states it is the responsibility of any individual having personal knowledge of an act, achievement, or service believed to warrant the award of a decoration to submit a formal recommendation into military command channels for consideration within 2 years of the act, achievement, or service to be honored. The Army does not condone self-recognition; therefore, a Soldier may not recommend himself/herself for award of a decoration. 28. Section 1130, Title 10, United States Code provides that the Service concerned will review a proposal for the award of, or upgrading of, a decoration that would not otherwise be authorized to be awarded based upon time limitations previously established by law. Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates and related documents. Corroborating evidence is best provided by commanders, leaders and fellow comrades who had personal knowledge of the circumstances and events relative to the request. A request for award not previously submitted in a timely fashion will only be considered under this provision if the request has been referred to the Service Secretary from a Member of Congress. The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rests with the requester. DISCUSSION AND 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 a relief for cause OER that was deemed less favorable than previously issued OER’s, 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. The applicant’s contention that he was flagged and that he received a GOMOR in reprisal for making protected communications appears to have merit. While the IG investigations did not address those issues, given the number of substantiated allegations and the nature of those allegations, it is reasonable to presume that such was the case. Although the applicant’s record are no longer flagged and do not contain the GOMOR, any actions related to them should not be included in his records. 4. The applicant’s contention that his relief for cause OER should be removed from his records has been noted and also found to have merit. Accordingly, the OER covering the period from 24 February 2003 through 10 October 2003 should be removed from his OMPF and the period declared non-rated. 5. The applicant’s contention that he should be issued a new OER reflecting his actual performance in Iraq has been noted and found to lack merit. The Board does not have the means to make an accurate determination of what the applicant’s performance was in Iraq almost 4 years ago and it would be a disservice to all concerned for the Board to direct such a report to be fabricated. 6. The applicant’s request that he be promoted to the rank of CPT has been noted; however, he has failed to show through the evidence of record and the evidence submitted with his application that he was eligible for promotion and that he was unjustly denied promotion to the rank of CPT before requesting transfer to the Retired Reserve. Therefore, lacking such evidence there appears to be no basis to grant that portion of his request. 7. The applicant’s request to be awarded the BSM appears to have merit. While there is no entitlement to an end of tour award, the investigating officer noted in his investigation that it was command policy that all personnel receive an end of tour award unless there had been action taken against a Soldier under the Uniform Code of Military Justice (UCMJ) and that only seven Soldiers, of which the applicant was one, did not receive an end of tour award. 8. Inasmuch as the investigating officer, who was on-site at the time, opined that the applicant deserved the award of the BSM, it would be in the interest of justice to award the applicant the BSM for meritorious service in support of Operation Enduring Freedom and Iraqi Freedom during the period of 17 May 2003 to 17 February 2004. 9. The applicant’s contention that he should have been awarded the LOM and that he was denied a retirement ceremony has been noted; however, while individuals may be recognized for their service at the time of retirement, there is no automatic entitlement and the decision on what recognition an individual is deserving of rests with the unit commander. Additionally, the applicant has failed to show through the evidence submitted that he was unjustly denied a retirement ceremony. 10. The applicant’s contention that he should be awarded the SSI-FWTS has been noted and while he is authorized to wear his combat patch, it is not an item of issue and is not authorized for entry on separation documents. Accordingly, there is no basis to grant his request to award him the SSI-FWTS or to enter it on his DD Form 214. 11. The applicant’s contention that he was denied a retirement physical has been noted and found top be without merit. The applicant was released from active duty at Fort Lee in March 2004 and should have underwent a separation physical at that time. At the time he was transferred to the Retired Reserve in June 2004, he was not on active duty and thus was not entitled to a physical examination. Accordingly, there is no basis to grant his request for a retirement physical. 12. The applicant’s request to adjust his retirement points has been noted; however, he has failed to state what the error is or to show that he has exhausted his administrative remedies to resolve any issues regarding that matter. Therefore, there appears to be no basis to grant his request for an adjustment of points at this time. 13. The applicant’s contention that an inquiry should be conducted, that his allegations against his commanders should be resolved and that both his company and battalion commanders author letters of apology to him for inclusion in his OMPF have been noted; however, it is not within the purview of this Board to direct such action. Accordingly, no effective relief can be granted by the Board in those matters. 14. While it is always the intent of the Board to make an individual whole again after having suffered the actions that result from an error or injustice, regrettably the Board cannot always accomplish such restoration. In arriving at its decisions, the Board wants the applicant to know that the decisions of the Board in this case in no way diminishes the quality of his service to our Army and our Nation. The applicant’s efforts to meet the needs of the Service demonstrated the finest traditions of the United States Army and should be a source of pride to the applicant. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF __x ___ ___x __ _x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected: a. by removing any and all references to flagging actions and a GOMOR dated 14 March 2004 from his records; b. by removing the OER ending 10 October 2003 from his OMPF and declaring the period of the report as non-rated time; and c. by awarding him the BSM for meritorious service in support of Operations Enduring Freedom and Iraqi Freedom during the period of 17 May 2003 to 17 February 2004, while serving in the rank of first lieutenant (1LT). 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to issuing him a new OER, promotion to the rank of CPT, award of the LOM, entering the SSI-FWTS on his DD Form 214, authorizing him a retirement physical and ceremony, adjusting his retirement points, and directing action be taken against his former commanders. ______x_______ CHAIRPERSON INDEX CASE ID AR20060014972 SUFFIX RECON YYYYMMDD DATE BOARDED 20070703 TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION (PARTIAL GRANT) REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.