MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:             3 May 2000                 
	DOCKET NUMBER:    AR1999034455

	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. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Ernest W. Lutz, Jr.		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 his discharge be changed to an involuntary separation with allowances for the wrongful acts against him and reimbursement for fees and expenses.

APPLICANT STATES:  In effect, that his bar to reenlistment was improperly imposed and when he satisfied the requirements for the bar his command failed to remove it, that he was the subject of wrongful adverse actions as a result of his whistleblower activities and the nature and manner of his discharge was wrong.

COUNSEL CONTENDS:  That the applicant was wrongfully discharged on         21 September 1997; that he was the recipient of a continuing pattern of reprisal and retribution by his supervisor and commander after he formally complained about fraud, waste and abuse in September 1996; that even if some of the allegations were partially true and correct, they were not substantial enough to support a just bar to reenlistment, and even if the bar was determined as properly imposed, the applicant successfully passed the restrictions and the bar should have been lifted before his Expiration Term of Service (ETS); that the bar to reenlistment approval authority for soldiers with 10 years of service at ETS should have been a general officer; that the final NCO Evaluation Reports (NCOER) of the applicant were not submitted in a procedurally correct manner and were not substantially correct in their content.

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

He enlisted for the Airborne Enlistment Option on 24 September 1987 in pay grade E-3.  He was promoted to pay grade E-4 on 1 October 1989 and thereafter reenlisted for the Army Service School Reenlistment Option with training in Military Occupational Specialty (MOS) 91R-Veterinary Food Inspection Specialist.  He completed training in his new MOS in 1991 and on 1 March 1993 was promoted to the grade of sergeant.  He completed the Primary Leadership Development Course in 1993 and the Army Medical Department Basic Noncommissioned Officer Course in April 1996.  On 22 September 1994 he reenlisted and on 30 January 1995, he was assigned to Germany for duty with the 72nd Medical Detachment (Veterinary Services).  Following imposition of a bar to reenlistment, he was honorably discharged for completion of required active service on 21 September 1997 in the grade of sergeant.

During his 9 years, 11 months and 28 days of active service, he completed an   11 month tour of duty in Korea in May 1990 and 2 years and 7 months in Germany in September 1997.  His awards include the Army Lapel Button, the Army Achievement Medal, the Good Conduct Medal, the National Defense Service Medal, the NCO Professional Development Ribbon, the Army Service Ribbon, the Overseas Service Ribbon, the Marksmanship Badge with rifle bar, the Parachute Badge and the Air Assault Badge.
Throughout his assignment with the 72nd Medical Detachment, the applicant was the subject of frequent counseling by his immediate supervisor, a staff sergeant. The applicant viewed this counseling as harassment because it was repeated and often appeared to be, in his opinion, for trivial matters.  The counseling was as follows: 

	28 May 1996 - failed to show up for PT.  The applicant stated that his clock was not set properly causing him to misread the actual time.

	25 June 1996 – failed to adequately perform/supervise a 100 % surveillance inspection at the Troop Issue Support Agency.  The supervisor removed him from the position of NCOIC of Food Inspection, recommended that UCMJ action be taken against him and indicated that he would be undergoing training and observation until the supervisor felt that he was capable of working independently.

	16 September 1996 - at approximately 1020 was put on quarters by the Augsburg Health Clinic.  At approximately 1730, he was observed playing basketball in the gym in violation of medical placement on quarters.  Counseling included the warning that any further violation and the supervisor would seek UCMJ action against him.

	25 September 1996 - disobeyed a direct order to inspect subsistence at a MWR Warehouse in Bad Aibling.

	18 December 1996 - applicant informed the supervisor by note on his office door that he would be late for work.  The note stated that he would be late for work because his car was slow to start.  The applicant nonconcurred with the counseling statement saying that his supervisors representation of the facts of the incident were not accurate.

	29 January 1997 – was late reporting to the Veterinary Treatment Facility. Reporting time was 0630, and he did not report until 0700.  The applicant nonconcurred with the counseling statement contending that it did not accurately state what happened.

	3 March 1997 – was issued an order to wash TMP Vehicle #451.  He failed to accomplish the task satisfactorily.  He finally accomplished the task on his second attempt.  The applicant nonconcurred with the counseling statement saying that it was not only inaccurate but false.

	5 March 1997 – on or about 14 February 1997 was instructed to counsel a subordinate on her performance starting with initial counseling and every 90 days thereafter.  Three counseling statements of subordinate were all completed at the same time and backdated.  
	6 March 1997 – disobeyed a lawful order, when asked to provide his files he refused to do so until after he had reviewed them.  Supervisor recommend that UCMJ action be taken against him  The applicant nonconcurred with the counseling statement saying that he provided all of the documents requested but his supervisor continued to harass him on a daily basis and continued to recommend UCMJ action against him.

All counseling was recorded on DA Form 4856 (General Counseling Form).  The counseling statement often contained an addendum sheet further explaining the circumstances of the session.  It frequently contained an advisory that failure to overcome the deficiencies or misconduct mentioned in the counseling could result in initiation of administrative separation under the provisions of AR 635-200, Chapters 5, 9, 11, 13, 14, 18.

On 1 April 1997, the detachment commander instituted a bar to reenlistment against the applicant.  Block 14 (Other Factual and Relative Indicators of Untrainability or Unsuitability) of the Bar to Reenlistment Certificate shows the aforementioned counseling statements as the basis for the bar.  The 72nd Medical Detachment’s next higher headquarters approved the bar on 11 April 1997.

On 15 April 1997 the applicant was counseled on the implications of the bar and his right to appeal.  He appealed and provided a statement with 27 enclosures disputing the accuracy and correctness of the counseling statements.  His appeal also indicated that the counseling was used to harass him over incidents that were contrived to label him as incapable, incompetent and disobedient.  He stated that many of the counseling statements threatened UCMJ action but none mentioned any training, retraining or other rehabilitation.

While not a matter of record, his appeal to the bar to reenlistment was denied.  On 7 May 1997, 16 June 1997, 23 July 1997 and 4 September 1997, he was counseled on means to remove the bar and improve his opportunities for promotion.

The applicant’s NCOERs rating history is as follows:

	       Period                           Rater                  Senior Rater

	Mar 93 – Oct 93                  Fully Capable     Successful(2) / Successful(2)

	Nov 93 – Oct 94                 Fully Capable       Nonrated-lack of Senior                                                                                           Rater qualification

	Nov 94 – May 95                Fully Capable       Successful(2) / Superior(2)

	Jun 95 – Oct 95                  Among the Best     Successful(2) / Superior(2)

	Nov 95 – Oct 96                 Marginal                 Poor(5) / Poor(4)

	Nov 96 – Sep 97                 Report not available

	NOTE:  The RATER has a choice of three possible ratings – Among the Best (highest rating), Fully capable, and Marginal (lowest rating). The SENIOR RATER evaluates performance and potential – performance is evaluated as Successful, with placement in categories 1, 2, or 3; Fair, with placement in category 4; and Poor, with placement in category 5 - potential is evaluated as Superior, with placement in categories 1, 2, or 3; Fair, with placement in category 4; and Poor with placement in category 5.

In November 1996 the applicant advised the local Inspector General (IG) that his supervisor had improperly condemned over $16,000 worth of government owned food items (Tray Packs and Meals Ready to Eat).  In December, he advised his chain of command of the allegations against his supervisor and that since he had reported the matter his supervisor was harassing him with unwarranted and inaccurate counseling statements in an attempt to destroy his career. 

In the March 1997 timeframe, the applicant alleged to the IG that he was reprised against in violation of the Whistleblower Protection Act for reporting to the IG, his congressman (to whom he had written in February 1997 about the condemnation of food items) and his chain of command that his supervisor had improperly inspected and condemned Tray Packs and Meals Ready to Eat.  He contended that the unfavorable actions taken against him were excessive counseling, an adverse NCOER, threats of reassignment, threats of discharge and a bar to reenlistment.  

The Office of the IG, US Army Europe conducted an investigation into the alleged whistleblower reprisal violation by members of the applicant’s chain of command and determined that the allegations were not substantiated (COPY ATTACHED).

Army Regulation 601-280, Army Retention Program, effective 29 October 1995, provides, in pertinent part, that commanders should evaluate all potential reenlistees under the “whole person” concept. Those soldier who are not considered suited for future military service should be considered for immediate administrative separation or initiation of a bar to reenlistment.  Factors considered under the “whole person” concept are: recent nonjudicial punishment, repetitive nonjudicial punishment, low aptitude area scores, low education achievement in combination with a pattern of disciplinary incidents, low evaluation reports, low common tasks tests or poor performance during commander’s evaluation under the individual training program, slow rank progression resulting from a pattern of marginal conduct or performance, potential for further service, a combination of any or all of the foregoing factors.
Chapter 8 of the same regulation provides field commanders with procedures for a Bar to Reenlistment.  It identifies steps necessary to deny reenlistment to soldiers whose immediate separation under administrative procedures is not warranted, but whose reentry into or service beyond ETS with the active Army is not in the best interest of the military service.  A bar to reenlistment may be imposed for…

•	soldiers with less than 10 years’ active Federal service at date of bar initiation, the bar will be personally approved by the first commander in the grade of LTC or above in the soldier’s chain of command, or the commander exercising Special Court Martial Convening Authority whichever is the most direct line to the soldier.

•	appeal to a bar to reenlistment, for soldier with less than 10 years of active Federal service at date of bar initiation, the approval or disapproval authority is the first general officer in the soldier’s chain of command, or the commander exercising General Court Martial Convening Authority, whichever is in the most direct line to the soldier. 

Army Regulation 623-205, Noncommissioned Officer Evaluation Reporting System, provides instructions for completing and processing the NCOER.  It provides in pertinent part, that each report will be an independent evaluation of the rated NCO for a specific rating period.  It will not refer to prior or sequent reports. It will not remark on performance or incidents occurring before or after the rating period.

Army Regulation 15-185, Army Board for Correction of Military Records, provides in pertinent part, that the Government will pay no expenses of any nature whatsoever voluntarily incurred by the applicant, his/her counsel, his/her witnesses, or by any other person in his/her behalf.

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.
DOD Directive 7050.6, Military Whistleblower Protection, implements the provisions of Section 1034, Title 10, USC.  This directive provides, in pertinent part, 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.

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.  The evidence of record shows that the applicant was frequently counseled by his supervisor in an effort to improve his performance.  The fact that the applicant may not have agreed with the reasons for the counseling is not material.  It was incumbent upon him to modify his behavior or otherwise improve his performance so as to accomplish the missions laid out by his supervisor or to advise the supervisor that he was unable to carryout the instruction he was given.  Instead, he apparently chose to dispute the accuracy of the counseling rather than attempting to correct his performance or behavior.  It appears that the supervisor took the right actions for the right reasons by counseling the applicant about his deficiencies.  When that counseling failed to elicit the desired improvement, the supervisor made his substandard performance a matter of record by reflecting it on his NCOER.

2.  The applicant’s counseling sessions also formed the basis for the bar to reenlistment imposed by his unit commander.  The bar was referred to him for review and he opted to appeal, which was subsequently denied by the next higher commander.  Review of the bar shows that it was imposed in accordance with regulatory guidance and there appears to be no indication of error, which would have jeopardized the applicant’s rights.  Although the applicant made progress in satisfying certain of the performance deficiencies noted in the bar, such as passing his AFPT, his progress, in the opinion of his commander, was still not sufficient to warrant removal of the bar.  It is noted also that at the time the applicant’s bar to reenlistment was imposed, the Army regulation pertaining 

to bars specified that the bar/appeal authority would be determined based on the “active Federal service on the date the bar was initiated” rather than the years of “active Federal service at ETS”, as asserted by the applicant’s counsel.  Since the applicant had less than 10 years service at the time the bar was imposed, the commander imposing the bar and the appellate authority that denied his appeal were the proper authorities to act on the bar.

3.  The applicant’s record of performance as shown by his NCOER rating history reveals a generally competent and capable NCO.  However, in January 1995, he was assigned to a geographically diverse organization where he was relied upon to work independently and with minimal supervision.  Although he was an NCO with almost 10 years service who should be expected to operation in such an environment, his performance began to deteriorate.  Despite repeated counseling, both his rater and senior rater considered him a marginal soldier with poor promotion potential.  His NCOER for the period November 1995 to October 1996, was written as a stand-alone evaluation that recorded his poor performance and appears to have been properly completed by his chain of command.  The subsequent NCOER, covering the period from November 1996 to his separation date in September 1997, which is alluded to by the applicant’s counsel as also being adverse, is not contained on his OMPF fiche, therefore, no conclusions are drawn regarding that report.

4.  The applicant’s contention that he was reprised against in violation of the Whistleblower Protection Act was thoroughly investigated by the IG.  Significantly, the investigation found that the applicant’s immediate supervisor was not aware of the whistleblower activity concerning him and therefore, would have had no reason to reprise against the applicant.  The IG concluded also that the adverse personnel actions taken by the applicant’s chain of command would have been taken even if he had not made protected communications, thereby dispelling the suspicion that those adverse actions were in retaliation for his whistleblowing activities.

5.  The evidence in this case shows that the applicant’s performance was not that expected of an experienced NCO and that his chain of command took the right actions concerning his performance shortfalls and those actions were procedurally correct.  After considering the available evidence, there is no doubt to be resolved in the applicant’s favor.

6.  The applicant’s request for reimbursement of fees and expenses expended in preparing his case cannot be favorably considered since reimbursement of such fees are specifically prohibited by the directive establishing the Board.

7.  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

__rvo  ___  ___jhk___  __ewl___  DENY APPLICATION

Carl W. S. Chun
			     Director, Army Board for Correction
                                                  Of Military Records

INDEX

CASE ID	AR1999034455	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  100.06		
2.   111.02		
3.   		
4.		
5.		
6.