MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  16 March 2000
	DOCKET NUMBER:   AR1999030529

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

	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Orville W. Troesch		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That the Officer Evaluation Report (OER) for the period 8 July 1996 through 31 May 1997 be deleted from his Official Military Personnel File (OMPF).  In an addendum, he also requests that he be entitled to temporary duty (TDY) pay from 1992.

APPLICANT STATES:  In effect, that the OER should be removed based on gross injustice, criminal acts, negligence, mental abuse, and blatant discrimination on the part of the rater and senior rater (SR) and was done as reprisal for his protected communications in violation of military Whistleblower protection.  He states that in December 1996 and April 1997 he filed grievances against his rater and SR with his congressional representative, the DOD, and the Secretary of the Army and in June 1997 he received a referred OER.  He had not received any counseling for delinquent performance prior to filing his grievances and no counseling for the first 8 months of his assignment.  The witness statements in the command inquiry establish that he was mistreated and demeaned by his leadership, sometimes in the presence of lower ranking personnel.  There was no evidence that he ever said the remark referred to in his OER about not trusting anyone in the command who is white.  The command inquiry also established that his rater utilized him to target a black individual and it was not the first time.  He mentions various other individuals that he worked with that were guilty of offenses against the government that were not properly investigated in the inquiry he had requested.  He provides copies of the 1992 Frankfurt District inquiry concerning allegations of racial discrimination and fraternization against his supervisor and the 1997 informal command inquiry pursuant to Army Regulation 15-6 concerning allegations of harassment and discrimination based on race against his rater and SR.  He also provides copies of his 1995 and 1998 request for TDY reimbursement for a 1992 TDY trip.  He states that he received less than $400 in compensation for his TDY and was consistently refused full payment although his racist supervisor and another individual were paid for the same circumstances.  He states that this racial injustice and the continued disapproval of his full TDY entitlement have contributed to his health problems and family hardship that he continues to endure.  He request that this Board take appropriate action for full TDY payment and removal of the OER, thus correcting this gross act of injustice.

EVIDENCE OF RECORD:  The applicant's military records show:

He was appointed a warrant officer (WO1) with concurrent active duty effective 14 March 1989.  He had over ten years prior enlisted service.  He was promoted to grade CW2 effective 14 March 1991.

A 31 January 1992 report of preliminary inquiry provided by the applicant was conducted in response to allegations by the applicant and two other personnel.  They alleged that their supervisor racially discriminated against them by failure to prevent continual racial slurs and epithets from subordinates and that the supervisor showed preferential treatment and fraternized with select members of the unit.  The copy of the inquiry provided by the applicant consists of witness statements, interviews, and exhibits.  Only one finding was not redacted.  It stated that there were strong indications that racial comments and slurs have been used in the applicant’s office by (a redacted source) in reference to the applicant.  There were no references in this inquiry to unpaid TDY funds.

The applicant appealed three Officer Evaluation Reports (OER) to the Department based on racial discrimination.  The Officer Special Review Board (OSRB) received the appeal on 7 March 1993. The contested OER’s were for the period14 March 1989 to 13 March 1990, 13 September 1990 to 1 June 1991, and 19 September 1991 to 10 February 1992.

The case summary prepared by the OSRB shows that they reviewed an unedited version of the preliminary inquiry mentioned above and a commander’s inquiry initiated based on the preliminary inquiry.  The commander’s inquiry is no longer available and was not provided to this Board by the applicant.  The OSRB noted that racial discrimination and preferential treatment was substantiated by the preliminary inquiry and the applicant’s rater was relieved for cause.

The conclusion of the OSRB was that there was sufficient evidence that the second and third contested OER’s were unjust and should be deleted.  There was insufficient evidence to amend or delete the first contested OER.  These findings were approved on 4 August 1994 and the two OER’s were removed.

On 30 June 1997 the applicant was formally notified of a referred OER based on derogatory comments contained in it.  On 30 June 1997 he acknowledged receipt of the OER and his intent to provide rebuttal comments.  The OER was for his duties as assistant operations officer for the period 8 July 1996 through 31 May 1997 and was a change of rater report.  The rater was a CW4 and the SR was a lieutenant colonel, battalion commander.

The rater, in Part VIa. placed a 2 in the blocks for Sets and enforces high standards and Supports EO/EEO.  The comments in Part VIb. Noted that he distrusted anyone in the command who was white and had been counseled for this comment, and that he had willfully disobeyed a lawful order.  In Part Vb. he was marked as usually exceeded requirements and Part Vd. as promote with contemporaries.  The only negative comment in Part Vc. was that he has had trouble prioritizing his time and efforts.  The comment on potential noted that he had declared his intent to retire.  The SR’s comments noted that he has a problem complying with direct orders and has demonstrated that he does not trust his chain of command.  The SR placed him in the forth block of his profile with 4 in the first block, 6 in the second block, 2 in the third block, and only the applicant in the forth block.

In the applicant’s rebuttal to the referred report he states the OER is illegal, contains errors and injustices.  He believes that the OER is a reprisal for a protected communication he made to his congressman and that it violates military Whistleblower protection.  It was also erroneous because both rater comments in Part VIb. are untrue. He never said that he did not trust white personnel in the command but had no proof.  His two former supervisors could substantiate that he trusted white supervisors.  Also, he has never disobeyed an order. There was no time limit placed on him to provide medical documents.  In fact, he was prepared to provide the records when he was given a written counseling statement that he had failed to obey the earlier verbal order.  He concluded by stating that he had filed a complaint with the DOD IG under the Whistleblower Protection Act and that he would request a commander’s inquiry and would appeal the OER.

The applicant has provided redacted copies of a 10 September 1997 AR 15-6 investigation conducted by his command as directed by the command chief of staff.  It appears that it incorporates an AR 15-6 investigation conducted by a colonel beginning on 18 February 1997 concerning eight allegations and one begun on 7 July 1997 because of 29 additional allegations by the applicant with a primary basis for the allegations of discrimination and harassment based on race.

Based on the available documentation only two allegations appear to have been founded.  The first involved delinquent performance counseling which, while not found to be derogatory, brought into question the raters leadership and management ability.  The second involved the SR being absent from duty for several days without a recorded leave or pass approved.  The overall result of the findings were that the applicant had no grounds to make allegations of racial discrimination or reprisal against the command even though the command climate was less than desirable and should be closely monitored in the future.  It was believed that the applicant’s narcissistic personality and paranoia caused him to have a distorted perception of racial discrimination and affected his ability to work with others.  He failed to submit any substantiated facts to prove his allegations of discrimination and never used the chain of command or the equal opportunity complaint process prior to requesting an AR 15-6 investigation.  It was recommended that the allegations of racial discrimination be unfounded.

On 31 August 1999 this Board received a redacted copy of the 4 March 1998 Army IG report of investigation (ROI) that was in response to the filing of a complaint of reprisal by the applicant.  The applicant had alleged that after he made protected communications with members of Congress, Army, and DOD he suffered reprisal actions from his rater and SR.  These actions were a change in his duties, being counseled for not being at his place of duty, sending him TDY, being counseled for failure to follow an order, influencing assignment officials to transfer him, and by providing him an adverse OER.

Additionally, the DAIG reviewed the AR 15-6 investigation conducted by the command and determined that it fully and properly addressed the issues raised by the applicant at that time.  The DAIG investigation concluded that none of the allegations of reprisal were substantiated and the investigation was closed.  It was noted that none of the allegations submitted by the applicant for investigation included the issue of unpaid, erroneous, or illegal TDY.

The request for reimbursement for expenses concern the applicant’s claim that he was never properly paid for a TDY period in Germany from 1992.  He provides copies of memorandums and claim forms from 1995 concerning his attempts at reimbursement, for which he states that he only received mileage reimbursement, along with documents for another officer TDY to a different location and a different time period.  A letter from his command to a member of Congress states that the applicant must follow correct procedures to file his request for reimbursement before it can be considered.  There is no evidence in the available record, or provided by the applicant that he filed a complete and proper request for reimbursement and was denied.

Army Regulation 623-105 established the policies and procedures for the OER system. Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

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.)

Army Regulation 20-1 provides, in pertinent part, that anyone 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  After a thorough review of the evidence of record and the independent evidence submitted by the applicant, the Board concludes that the evaluation rendered in the contested OER, was proper and equitable in all respects.  The contested report represented the considered opinions and objective judgment of the rating officials at the time of preparation.  In addition, the Board found there was not a sufficient evidentiary basis to meet the burden of proof required to overcome the presumption of regularity established by regulation.

2.  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.  However, none of the investigations substantiated that the applicant was the victim of reprisal or inappropriate adverse actions based on his protected communications and he was not granted Whistleblower status.

3.  Since the applicant’s allegations of reprisal were not substantiated by the IG investigation his case was not treated under the provisions of the Military Whistleblower Protection.  Accordingly, his case was considered by this Board as any other application alleging error or injustice as provided by Title 10, US Code, section 1552.

4.  It is not apparent from the evidence provided that he filed a valid claim for additional TDY funds that he believes he is entitled to or that his request was formally denied.  Accordingly, there is no basis for the Board to consider this issue until he has exhausted the administrative remedies available to him.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JP__  __CP___  __OT___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030529	
SUFFIX		
RECON		
DATE BOARDED	20000316	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.0005	
2.	128.14	
3.		
4.		
5.		
6.