PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            12 January 2000
	DOCKET NUMBER:   AR1999033732

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Luther L. Santiful		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 retroactive payment of special duty assignment pay (SDAP) for the period of 1 June 1997 to the date of approval by the Board.

3.  The applicant states, in effect, that while serving as a recruiter in the Wyoming Army National Guard (WYARNG) she was receiving SDAP of $375.00 per month; however, because she was suffering reprisal from her rating chain, she felt that she had to request a transfer to remove herself from a hostile working environment.  She goes on to state that the investigation that was conducted under the Whistleblower Protection Act took over 2 years and her allegations of reprisal were for the most part substantiated.  As a result, steps have been taken to correct the damage done to her records; however, had she not been the subject of reprisal for making  protected communications with the Inspector General (IG), she would not have been forced to move from her position as a recruiter and would have received her SDAP until such time as she accepted another position. 

4.  The applicant’s military records show that she enlisted in the WYARNG on 27 December 1974 and has remained in the WYARNG through a series of continuous reenlistments.  She entered active duty on 14 August 1983 in the Active Guard/Reserve (AGR) program as a retention NCO and was promoted to the pay grade of E-7 on 21 February 1985.  During a reorganization of the WYARNG AGR program she was assigned as a recruiting and retention NCO.

5.  On 8 June 1997 the applicant was transferred to another unit in the WYARNG for duty as a bandsman and was subsequently awarded the military occupational specialty (MOS).

6.  In August 1997 an investigation was initiated by the IG to investigate allegation of reprisal filed by another NCO and the applicant in which she alleged that she had received less than favorable NCO evaluation reports (NCOER), that her MOS had been improperly withdrawn, that she was improperly removed from the select, train, promote, and assign (STPA) list and that she was placed on the non-selection list.  She also indicated that she requested to be moved because of the hostile environment and because she feared further reprisal if she remained in her position as a recruiter at the same station/area.

7.  The investigation concluded, in effect, that the applicant had voluntarily requested reclassification/transfer to another position and therefore it was not considered reprisal; however, it did conclude that the NCOER’s for the rating periods ending in December 1995 and 1996 were issued in reprisal for making protected communications and that although the applicant had submitted a voluntary request for reassignment, there was a hostile work environment.  However, personnel processing her request for reassignment were not privy to the hostile work environment; therefore, there was no reprisal involved in her being removed from recruiting duty and the loss of her SDAP.  The Department of Defense Inspector General (DODIG) concurred with the findings on 14 April 1999.

8.  On 6 October 1999 the WYARNG took steps to remove the NCOER from the applicant’s records and to provide instructions regarding promotion consideration in the absence of the contested NCOER.

9.  On 30 September 1999 the Assistant Adjutant General provided the applicant a memorandum of commendation thanking her for her courage in stepping forward to bring issues to the forefront that needed to be addressed.

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 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.)

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 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 NCOER’s that were deemed less favorable than previously issued NCOER’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.  Notwithstanding, the findings of the IG that the applicant was not transferred from recruiting duty in reprisal for making protected communications, but instead because she had voluntarily requested reassignment; the Board finds after reviewing the evidence of record, that the applicant requested to be moved in order to avoid further damage to her career and reputation from her rating officials, given the hostile environment they created.  Given the fact that the investigation took 2 years to complete, the Board finds that this was the logical solution for the applicant and that had she not been subject to reprisal, she would have been eligible to receive his SDAP during the period of 1 August 1997 until such time as she no longer performed duties as a recruiter.

4.  Inasmuch as the other NCO that was her co-complainant in the Whistleblower investigation requested the same relief and was granted SDAP until 1 January 2000, it would be in the interest of justice for the applicant to receive the same relief. 

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 showing that the individual concerned was authorized to receive SDAP as a recruiter for the WYARNG for the period of 1 June 1997 to 1 January 2000.

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

BOARD VOTE:  

__inw___  ___ls____  ___js____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR1999033732	
SUFFIX		
RECON		
DATE BOARDED	2000/01/12	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  297 	128.1400/SDAP	
2.		
3.		
4.		
5.		
6.