ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 December 2019 DOCKET NUMBER: AR20180006217 APPLICANT REQUESTS: In effect, . Remove from his records a referred Annual Officer Evaluation Report (OER) for the period 880505-890504 . Remove from his records a General Officer Memorandum of Reprimand (GOMOR) dated 3 January 1989 for refusing to take a lawfully requested chemical test for blood alcohol in conjunction with arrest for suspicion of driving while under the influence of alcohol . Reinstate him in the Army . Award him constructive retirement points for service since his June 1990 involuntary discharge from Active Duty . Forward the ABCMR decisional document to the Secretary of the Army for final decision in accordance with 32 Combined Federal Regulation (CFR), section 581.3, due to facts in his case involving reprisals under the Military Whistleblower Protection Act, confirmed by the Department of Defense Inspector General (DODIG) under Title 10, United States Code (USC), section 1034 and DOD Directive 7050.6 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: . Letter to the Acting Secretary of the Army, dated 5 March 2018, requesting review of the ABCMR decisions under 32 CFR, section 581.3 . Letter from a member of the United States Congress, dated 3 July 2019, with the following enclosures: . Letter statement from the applicant, dated 23 April 2019, with . State of Texas County Court “Judgement of Not Guilty – Jury,” one page, dated 12 January 1990 (previously reviewed by the Board) . Veteran Affairs (VA) Benefits letter, dated 1 March 2019 . An email to the Army Review Boards Agency with the following attachments: . Letter to Wounded Warrior caseworker, dated 23 April 2019, . State of Texas County Court “Judgement of Not Guilty – Jury,” one page, dated 12 January 1990 (previously reviewed by the Board) . VA Rating Decision, dated 26 February 2019 . VA Benefits letter, dated 1 March 2019, pages 1 and 7 . Superior Court Order Assigning Salary or Wages Modification to withhold funds from the applicant’s wages for child support, filed 10 August 1988 (previously reviewed by the Board) . Superior Court Order Assigning Salary or Wages Modification to withhold funds from the applicant’s wages for child support, filed 16 August 1988 (previously reviewed by the Board) . District Attorney letter, dated 15 September 1988, forwarding a 26 August 1988 refund of overpayment of child support collected intercepted from the applicant’s federal/state income tax more than he owed (previously reviewed by the Board). FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in docket numbers: . AC91-05367, dated 22 July 1992, denied . AC91-05367A Reconsideration, dated 22 September 1993, denied . AR2000040235, dated 30 June 2000, no new evidence, exhausted administrative remedies, closed . AR2000046685, dated 28 December 2000, no new evidence, exhausted administrative remedies, closed . AR2001055181, dated 20 June 2001, no new evidence, exhausted administrative remedies, closed . AR2003086243, dated 23 May 2003, administrative review, no new evidence, exhausted administrative remedies, closed . AR20040004195, dated 30 March 2005, no new evidence, exhausted administrative remedies, closed . AR20080004886 Reconsideration, dated 8 May 2008, denied . AR20090003644 Reconsideration, dated 6 August 2009, denied . AR20150012593 Reconsideration, dated 6 December 2016, amended prior decisions to remove from the record the applicant’s OER for the period 890505-890806, declare it non-rated time, but deny all else . AR20170016871 Reconsideration, dated 5 December 2017, denied 2. The applicant was appointed as a Reserve commissioned officer of the Army, Medical Services Corps, and executed an oath of office on 14 December 1982. He was advanced to CPT on 5 May 1987. He was ordered to active duty in the Active Guard Reserve (AGR) program on 5 May 1987 and was assigned to the Army Reserve 829th Station Hospital, Lubbock, Texas, as a Training Officer. CHILD SUPPORT AND GARNISHMENT (August-September 1988): 3. The applicant provided documents showing that on 9 August 1988 and 14 August 1988, the Superior Court of California, San Francisco, issued court orders directing the applicant's employer withhold a portion of his earnings (garnishment) and pay the San Francisco District Attorney Family Support Bureau child support in the amount of $466.00. The court order does show that it is a modification of a prior court order which would have also been sent to the U. S. Army Finance and Accounting Center (DFAC, Indianapolis, Indiana, for garnishment. 4. On 27 September 1988, DFAC, sent a memorandum through the applicant’s commanding officer, 807th Medical Brigade, Seagoville, Texas, to the applicant, subject: Garnishment of Pay, stating that DFAC had received the court order modification from the San Francisco District Attorney and would begin deducting from his pay $466 a month as a garnishment for child support. Considering the date of the memorandum being 27 September 1988 and that monthly pay actions for the September pay would have had to been processed by 15 August 1988, it appears that the first garnishment collection of $466 from that modification order would have begun in the applicant’s pay on 1 October 1988. Thus, the first payment to San Francisco District Attorney Family Support Bureau would not have been received by them until mid-October 1988. 5. On 15 September 1988, the San Francisco District Attorney sent the applicant a letter reference child support informing him that they were refunding $138.90 by warrant (check) dated 26 August 1988. The letter states that the refund was made because the District Attorney’s office intercepted (collected) from the applicant’s Federal/State Income Tax more than the applicant owed for child support and they were refunding this over-payment. It is noted that the refund warrant was dated 12 days after the 14 August 1988 garnishment court order and prior to mid-October 1988 when the San Francisco District Attorney would have received the garnishment payment from DFAC so the refund was not the result of garnishment from the applicant’s military wages. As the letter states, it was the result of collection from his Federal/State Income Tax for child support. This does not demonstrate that the applicant was not guilty of not paying child support but may in fact be proof that he was not paying full child support since it was being collected from his Income Taxes. 6. The applicant also contends that the $138.90 refund is evidence that his OER for the period 880505-890504 should be removed from the record since the refund shows that he was not guilty of misconduct of failing to pay child support. However, the OER makes no mention of this misconduct so even if the refund was evidence that he did not fail to pay child support, it has no bearing on the validity of the OER. 7. The applicant’s record does contain a Form 1341 (JUMPS – Army Allotment Authorization), dated 21 April 1987, made out at Fort McCoy while he was in AGR training, making an allotment to pay voluntary support of dependents in the amount of $541.66, staring May 1987, paid to District Clerk Office, Court House DeWitt City, Cuero, Texas. There is not in the applicant’s record a voluntary allotment for payment of child support to the San Francisco District Attorney Family Support Bureau. ARREST FOR DRIVING WHILE INTOXICATED (Driving under the Influence (DUI)), GOMOR FOR FAILING TO TAKE A BLOOD ALCOHOL TEST, NOT GUILTY OF DUI (September 1988 – January 1990), and MEMORANDUM OF REPRIMAND FOR DISRESPECT TO A SUPERIOR OFFICER (13 December 1989): 8. On 4 September 1988, the applicant was driving on the shoulder of the road when he was stopped by the police and cited for drive while intoxicated (DWI). The Texas Department of Public Safety Case Report and sworn affidavit shows that the applicant’s breath smelled of alcohol, his eyes were bloodshot, he was swaying, and he admitted that he had been drinking cognac. The applicant refused to take a breathalyzer test. He acknowledged in writing the police officer DWI statutory warning that his driver's license would be automatically suspended. However, if he requested a hearing on the suspension of the driver's license, the latter would not be suspended or denied until the hearing had been held. 9. On 3 January 1989, he was given a General Officer Memorandum of Reprimand (GOMOR) by the Commanding General (CG), Fifth United States Army, Fort Sam Houston, TX, for refusing to take a lawfully requested chemical test for blood alcohol content on 4 September 1988 in Lubbock County, TX. The applicant was admonished that as a commissioned officer, he was aware that intoxicated driving was incompatible with high standards of performance, military discipline, and readiness, and presented an extreme hazard to the health and welfare of the community. This General Officer Memorandum of Reprimand (GOMOR) was imposed as an administrative measure and was filed in the performance section of his OMPF. 10. The CG was required by Army Regulation (AR) 190-5, paragraph 2-7a(2), to issue a written general officer reprimand to any Army officer who refused to take or failed to complete a lawfully requested test to measure alcohol content of the blood either on or off the installation when there is reasonable belief of driving under the influence of alcohol. Based on the arresting officer’s observations, there was reasonable belief that the applicant was driving under the influence of alcohol. AR 190-5, paragraph 2-7a(1) would also require a GOMOR for DUI, but the subject GOMOR was not given for this reason; it was for failing to take the blood alcohol test as required by regulation. 11. The applicant contends that by Texas law, he could refuse to take the blood alcohol test. He also contends that he was concerned that if he took the blood alcohol test, his reserve military commander who was also a civilian county coroner might get the test results altered against him. Neither of these reasons relieve the CG of the regulatory requirement to issue a GOMOR when an Army officer refused to take a blood alcohol test. 12. The applicant submits a Texas State County Court “Judgement of Not Guilty – Jury” document showing that on 8 January 1990 the court found the applicant not guilty. The document does not say what the applicant is not guilty of. The applicant contends that this shows he was not guilty of DUI and therefore the GOMOR should be removed from his record. The he GOMOR was not given for DUI, it was given for failing to take a blood alcohol test so a not guilty finding for DUI would not invalidate the GOMOR 13. The applicant appealed his GOMOR to the Department of the Army Suitability Board (DASEB) 16 March 1992 advisory AC91-05367 – 5 Nov 91 contending that he was not found guilty of DUI. The applicant contended in an affidavit dated 6 March 1990 that Texas state law requires suspension of a driver’s license for 90 days for failing to take a lawfully requested blood alcohol test and he has never had his license suspended. He therefore concludes that his blood alcohol test was not lawfully requested and fails the requirements in AR 190-5 to issue the GOMOR. 14. On 13 December 1989, the colonel commander of the Headquarters, U. S. Army Garrison, Fort Sam Houston issued the applicant a Memorandum of Reprimand to showing disrespect to a superior officer. On 4 August 1989, the applicant as he departed the 829th Station Hospital, Lubbock, Texas, in his privately operated vehicle, drove past his commander, Colonel E. The applicant waived at the Colonel with his right hand with his middle finger stretched upward while the remaining fingers clutched in a fist. The motion of his hand was upward, rather than sideways leaving no doubt as to the intentions of the applicant’s act. The applicant’s conduct of giving the Colonel the “finger” was one of gross disrespect toward his superior commissioned offered and was witnessed by the senior enlisted man of the unit, the Command Sergeant Major. It also noted that such an act could be punishable under non-judicial or judicial means as a violation of the Uniform Code of Military Justice Article 89, which could be punished by a bad conduct discharge. REFFERED OFFICER EVALUATION REPORTS (OER) FOR 880505-890504 (Annual) and 890505-890806 (Change of Duty): 15. In June 1989, the applicant received a referred Annual OER for the period 880505-890504. The senior rater was COL E, Commander, 829th Station Hospital. The rater’s section of the OER contained five 2s, two 3s, and three 4s in professional competence, and often failed requirements and was not recommended for promotion in the performance and potential section. The senior rater gave him a below center of mass (7th block) potential evaluation. All the remarks were concerning the applicant’s failures in his training job performance. There was no reference in the applicant’s GOMOR or Child Support issues. 16. On 27 June 1989, the applicant requested that the Commanding General (CG), 607th Medical Brigade, conduct a Commanders Inquiry into his OER contending that it did not accurately describe his duty performance and accomplishments as the training officer. The applicant submitted documents to show his work as the training officer. During the Commander’s Inquiry, it was learned that the senior rater had adversely influenced the rater’s evaluation of the applicant. On 13 October 1989, the CG signed a memorandum to the applicant informing him that as a result of the Commander’s Inquiry he had returned the applicant’s OER to the rating officials for correction. The records do not show exactly when prior to 13 October 1989 the OER was returned to the rating officials for correction. The original OER was voided and a new OER issued, signed by the rater on 1 October 1989 and the senior rater on 12 October 1989. The new OER rater’s section contained four 2s and one 3 in professional competence, and usually exceeds requirements and promote with contemporaries in the performance and potential section. The senior rater gave him a below center of mass (7th block) potential evaluation. All the remarks were concerning the applicant’s failures in his training job performance. There was no reference in the OER to the applicant’s GOMOR or Child Support issues. 17. On 12 October 1989, both OERs were referred by memorandum to the applicant by the senior rater for acknowledgement and comment by 25 October 1989. The applicant signed for the reports on 18 October 1989 according to the personnel officer but as of 30 October 1989, the senior rater had not received acknowledgment of receipt of the OERs from the applicant. 18. On 23 October 1989, by memorandum the applicant acknowledged receipt of the OER for the period 880505-890504 and provided comments of rebuttal to the evaluation. On 24 October 1989, by memorandum the applicant acknowledged receipt of the OER for the period 890505-890806 and provided comments of rebuttal to the evaluation. It appears that the senior rater did not receive these acknowledgments and comments until after 30 October 1989. 19. On 30 May 1989, the Deputy Chief of Staff for Personnel, Officer Special Review Board (OSRB), received an OER appeal from the applicant appealing both OERs, 880505-890504 and 890505-890806. The applicant contented that the OERs were substantively inaccurate, illegal, incorrect, unjust, and untrue violating four paragraphs of AR 623-105: 3-l2c and 4-7d concerning counseling; 4-6 on preparation of support form; and 3-15 (should be 4-20) on prohibiting anyone from requiring changes to an OER. He contended that the senior rater forced the rater to prepare adverse evaluations and that the OERs were revenge for his having reported the senior rater to the FBI, CID, and IG for wrong doings as commander of the 829th Station Hospital. He requested that both reports be removed from his record. He provided 7 documents of evidence and 6 supporting statements from members of the 829th Station Hospital. The OSRB the evidence and the applicant’s related records and concluded that the applicant had failed to provide clear and convincing evidence to support his contentions that the contested OERs in their final form were inaccurate and unjust, or in violation of paragraph 4-20, AR 623-105. The OSRB denied the applicant’s appeal. 20. The applicant appealed both OERs to the ABCMR requesting that they be removed from his record on the same basis as he had appealed to the OSRB. The ABCMR found insufficient evidence of an error or injustice in the OERs in 9 successive ABCMR reviews from 1992 to 2009. In a reconsidering the prior cases in 2016 in response to the applicant’s request, the board determined based on accumulated evidence that the senior rater: . Was indisputably a toxic leader; . In 1992, was found guilty in Texas criminal court of feloniously falsifying autopsy records and expenses involving military time; . Found by the U.S. Army Criminal Investigation Command to have conducted four autopsies for his civilian job while on military orders and accepting military pay for these autopsies to which he as not entitled; and . Was substantiated by the Commanders OER Inquiry in 1989 as having applied undue pressure on the rater to prepare and adverse OER on the applicant. Accordingly, the Board directed that the Change of Duty OER for the last period of service with the 829th Station Hospital, 890505-890806, be removed from the record and the time declared non-rated. The Board did not find sufficient evidence of error or injustice in the Annual OER for the period 880505-890504 to also remove it. It is noted, however that both OERs were signed by the senior rater at the same time, 12 October 1989. INSPECTOR GENERAL COMPLAINT (6 September 1989), CRIMINAL INVESTIGATION COMMAND COMPLAINTS (21 September 1989), and DODIG LETTER OF REVIEW (25 January 1996) 21. On 6 September 1989, the applicant filed an Inspector General (IG) complaint with the Fifth U. S. Army IG. He complained about his senior rater’s: . Conduct unbecoming of an officer . Unauthorized use of a U.S. Army Identification Card (Armed Forces Card) . Intentional misstatements of fact in official statements or records for the purpose of misrepresentation . Use of government property and personnel for personal gain and use 22. On 4 April 1990, the Fifth U. S. Army IG published their response to the applicants claim. The IG determined that the applicant’s allegations within their authority were not substantiated and referred the other allegations beyond their authority to the U. S. Army Criminal Investigation Command. Concerning the applicant’s OERs, the IG stated, “Review of Commander’s Inquiry substantiated your allegation that [the senior rater] applied undue pressure to your rater to reflect an adverse Officer Efficiency Report (OER). The OER for the period in question was voided and not forwarded to your official file at Army Reserve Personnel Center (ARPERCEN).” Accordingly, the IG did not make a finding of substation on this item of complaint. 23. On 21 September 1989, the applicant filed a CID complaint that between July 1988 and October 1989, the senior rater in his capacity as a Forensic Pathologist conducted four autopsies while on weekend drill or annual training, and accepted payment for services rendered from three of the autopsies in addition to payment for weekend drill or annual training, totaling $380.88, to which he was not entitled. On 31 December 1990, the CID closed their investigation finding that the senior rater had retired from the Army on 31 August 1990, that the Federal Bureau of Investigation (FBI) had closed their case on the subject, and that the U. S. Attorney’s Office for Northern District of Texas had declined to prosecute the senior rater. 24. It is noted that since both of these complaints against the senior rater were filed by the applicant 6 and 21 September 1989 and that process of the resulting investigations went well into 1990 before any determinations were made, it is unlikely that the senior rater was aware of them prior to his finalization and signing the final OERs for 880505-890504 and 890505-890806 four weeks later on 12 October 1989. 25. The 25 January 1996, a DODIG’s letter responded to a congressman’s request that they “review” allegations that the applicant was the victim of discrimination and reprisal as a whistleblower for his disclosures to the Army Inspector General in 1988 and 1989 regarding the activities of his senior rating official. The DODIG stated that they could not conduct a whistleblower investigation since the applicant had not filed a whistleblower complaint with 60 days of the adverse action according to law and regulation. They did “review” the ABCMR case decisions, evidence, and records and found: . The applicant did make disclosures protected by the whistleblower statute . The applicant did suffer adverse personnel actions after making the disclosure BUT: . They did not find evidence that the applicant’s adverse OERs were inaccurate . That the same adverse personnel actions would have been taken had the applicant not made the protected disclosure. The DODIG observed that evidence of substandard duty performance, neglect of performance of duties and inefficiency, and acts of personal misconduct justified the adverse personnel actions. 26. The applicant contends that, according to Title 32, Code of Federal Regulations (CFR), section 581.3(g)(2)(ii)(B), which states "The ABCMR will forward their decisional document to the SA [Secretary of the Army] for final decision in any case in which the facts involved "reprisals" under the Military Whistleblower Protecting Act (MWPA), confirmed by the DODIG under 10 USC 1034 and DODD 7050.06," the ABCMR is required to send the decision on his case to the Secretary of the Army for final decision. He further contends the ABCMR decisions are not valid because this provision was not followed. 27. The applicant bases his contention on his reading of Title 32, CFR, section 581.3(g)(2)(ii)(B) and the 1996 DODIG memo review of the two prior ABCMR decisions in 1992 and 1993 that denied his request for corrections. He contends that the 1996 DODIG memo review confirms that he was reprised against for his whistleblower activities. However, the 1996 DODIG memo review on page two, last paragraph, stated that the adverse personnel actions were "NOT reprisals" for his whistleblower allegations to the IG; the adverse personnel actions were independent based on his actions. Accordingly, because there were no "reprisals" according to the DODIG memo definition, Title 32, CFR, section 581.3(g)(2)(ii)(B) does not apply and the ABCMR is not required to send decisions in this case to the SA for final decision. Secondly, 32 CFR 581(g)(2)(B)(3)(ii) states that the facts involving reprisal under the MWPA must be "confirmed" by the DODIG under 10 USC 1034 and DODD 7050.06. Title 10 USC 1034 (d) states that the IG receiving a whistleblower allegation will conduct an "investigation" to "confirm" violation of the MWPA and render a report to the DODIG. Based on the version of Title 10, United States Code (USC), section 1034 in effect at the time, the IG was not required to conduct an investigation in cases of allegations made more than 60 days after the date on which the member became aware of the personnel action that was the subject of the investigation. Further, pursuant to amendments by the National Defense Authorization Act for Fiscal Year 2017 (NDAA17) to the Military Whistleblower Protection Act (MWPA), the ABCMR lacks the authority to make changes to DODIG Whistleblower findings. The ABCMR cannot change DODIG’s determination that the adverse personnel actions were not reprisals against the applicant. The DODIG 1996 memo was not an "investigation" nor an investigation “report”; it is as it states in the first paragraph of the letter a “review” of the ABCMR decisions. Accordingly, since there was no investigation for confirmation of his Whistleblower allegations or report made as defined by 10 USC 1034, then 32 CFR 581.3(g)(2)(B)(3)(ii) does not apply and the ABCMR is not required to send their decisions to the SA for final decision in his case. INVOLUNTARY RELEASE FROM ACTIVE DUTY ACTION (4 August 1989 – 16 January 1990) 28. On 4 August 1989, the Commander, Fort Sam Houston, notified the applicant by memorandum that action had been initiated to release him from active duty in the AGR program because of misconduct and substandard performance of duty. The following details were cited: . Substandard performance of duty. Specifically, on your Officer Evaluation Report for the period 5 May 1988 through 4 May 1989, your rater noted that you lack initiative and display poor judgment in your dealings with other personnel. Your rater also stated that you lack the background, professional knowledge, skills, and techniques to perform satisfactorily in your current grade. Your senior rater noted that you consistently failed to meet suspense dates set by higher headquarters, failed to adequately plan and organize your work, and do not meet the standards expected of an officer of your grade. . Neglect of performance of duties and inefficiency, specifically: (1) In April 1989, you failed to process appropriate orders for 2LT W to attend an officer basic course and rescheduled training (RST). (2) In April 1989, you failed to ensure that the report of a formal of officers was complete prior to forward it to higher headquarters unnecessarily delaying completion of the action. (3) You failed to meet a suspense of 12 April 1989 for submission of a deployment packet for a SOUTHCOM OOT mission scheduled for 11-23 June 1989; preparation of such documents were your responsibility as Training Officer. (4) You failed to ensure that requests for military training were submitted and processed properly, demonstrating a lack of concern for training of individual reservists, a significant area of responsibility. (5) A Command Readiness Inspection on the 829th Station Hospital in May 1988 revealed that areas for which you are responsible, i.e., individual training and training management, were unsatisfactory. (6) An evaluation of Inactive Duty Training (IDT) conducted by Fifth Army on 3 December 1988 indicated that training management was unsatisfactory. . Acts of personal misconduct. Specifically: (l) In August 1988, your military pay was garnished by order of the Superior Court of California for failure to pay child support for your minor children. (2) On J .January 1939, you were reprimanded for your refusal to submit to a lawfully requested blood alcohol test after your arrest for driving while intoxicated on 4 September 1988. 29. On 16 January 1990, the Commander, U. S. Army Garrison, Fort Sam Houston, determined not to forward the Relief from Active Duty recommendation to Headquarters, Department of the Army, for consideration by the Active Duty Board. He noted that at that time some of the allegations made by the applicant were still under investigation. The recommendation was returned to the 807th Medical Brigade without action. CONTINUATION BOARD (6 March 1990) 30. On 6 March 1990, the Office of the Chief, Army Reserve, published the results of the U. S. Army Reserve (USAR) Active Guard Reserve (AGR) Officer Continuation Board which had convened on 17 January 1990. The memorandum stated that the board has examined the applicant’s entire record on an impartial basis and did not recommend his continuation in the USAR AGR program. His release from active duty was scheduled for 9 June 1980. 31. Headquarters, Fifth U. S. Army and Fort Sam Houston issued orders on 15 May 1990 releasing the applicant from active duty on 9 June 1990. On 21 May 1990, he was notified by memorandum from the Chief, Personnel Processing Branch, Fort Sam Houston, that he was scheduled for out processing at Fort Sam Houston on 9 June 1990. However, the Final Transition Processing Checklist in his record indicates that he did not show up for out processing on 9 June 1990 as scheduled. On 13 June 1990, the Chief, Personnel Division, Letterman Army Hospital (LAMC), San Francisco, addressed a memorandum to the Full Time Support Management Center, Office of the Chief, Army Reserve, St. Louis, requesting that the applicant be extended on active duty for medical board processing. Consequently, his 15 May 1990 orders for release from active duty on 9 June 1990 were rescinded on 14 June 1990. 32. The applicant was assigned to the 829th Medial Hospital at Lubbock, Texas, yet on 13 June 1990, the applicant was at LAMC in San Francisco. There does not appear to be orders that transferred him to LAMC prior to that time. It is noted that San Francisco was his home of record. There does not appear to be any record of leave authorization from Lubbock, Texas, for the applicant to be in San Francisco, California. 33. On 16 July 1990, the applicant received a physical evaluation for separation at LAMC. On the applicant’s Standard Form 93 (Health History), box 25, Physician’s Summary, the examining physician wrote: -History of intermittent vascular headache for 1 year consistent with anxiety induced migraine type headache associated with dizziness. -Recent onset of anxiety induced subjective (based on individual's statement, not based on medical diagnosis) complains of shortness of breath, palpitation -Clinical inconsistent with shortness of breath and palpitation -Status post left inguinal hernia repair 1990 with no complication -Bilateral mild ankle discomfort with running one day after running – non-significant 34. On the applicant’s Standard Form 88 (Report of Medical Examination), the examining physician wrote in box 77 that the applicant was “qualified for separation” and in box 76 put all “1”s in his physical profile (PUHLES) both entries indicating that the applicant did not have any unfitting conditions requiring medical board processing for separation. The physician noted in box 74 a summary of defects and diagnoses which, based on the physicians evaluation in boxes 76 and 77, were not unfitting and did not require medical board processing: -Intermittent migraine-type headache -Status post left inguinal hernia repair 1990 -Separation anxiety -Hematoma - right inguinal area 35. Between 16 July 1990 and 13 September 1990, the applicant was examined in several clinics at LAMC (including neurology, orthopedic, gastrointestinal, and dermatology) and none found any conditions requiring referral for medical board processing. 36. By orders dated 31 October 1990, issued by Headquarters, Fifth U. S. Army and Fort Sam Houston, Texas, the applicant was released from active duty effective 18 September 1990, and transferred to the USAR Individual Ready Reserve (IRR). There are no records available that show when and how LAMC notified Headquarters, Fifth U. S. Army, that the applicant did not require medical board processing for separation and the circumstances under which LAMC escorted the applicant out of LAMC according to the applicants’ contention. 37. On 12 August 1994, the applicant was honorably discharged from the USAR IRR. The reason given on his orders was SFSR-11 which indicates that he was discharged for ABCMR MEDICAL ADVISORY and VA RATING DECISON 38. The ABCMR Board physician and psychologist reviewed the applicant’s medical records to determine if there were any medical conditions not considered during medical separation processing and to determine if the available records reasonably supported Post Traumatic Stress Disorder (PTSD) or other behavioral health condition that existed at the time of the applicant’s military service that warranted separation through medical channels or were mitigation factors in the applicant’s misconduct. 39. The Army Review Boards Agency medical and psychologist advisors reviewed the applicant's records, application and evidence, and the electronic VA medical record (JLV). The applicant's VA medical records indicates he received 30% service connected disability for Unspecified Depressive Disorder with anxious features. The identified stressor was his negative OERs and separation from USAR AGR program. 40. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, the applicant's VA medical records DO support the existence of “non-boardable” behavioral health condition at the time of his release from active duty - Unspecified Depressive Disorder with Anxious Features. The applicant's medical records indicate that the applicant DID meet medical retention standards IAW AR 40-501. The applicant's diagnosis of Unspecified Depressive Disorder with anxious features IS NOT a mitigating factor in the misconduct/behavior that resulted in the applicant's release from active duty. 41. The VA Disability Rating Decision provided by the applicant shows that he was awarded 30% disability for service connected Unspecified Depressive Disorder with Anxious Features, which was claimed as anxiety and PTSD by the applicant. However, the applicant was not diagnosed by the VA with PTSD. Further, the applicant’s separation physical and Neurological Clinic evaluation at LAMC did not find that he had PTSD or any unfitting mental or neurological conditions. EX PARTE RESPONSE 42. The advisory was provided to the applicant under the rules of ex parte for his review and response if desired. The applicant provided a response with 12 enclosures as follows, most of which had previously been reviewed by the ABCMR: . Release from active duty orders # 93-4 effective 9 June 1990 (previously reviewed) . 13 June 1990 Request from LAMC for Medical Extension on Active Duty (previously reviewed) . Orders # 114-02 dated 14 June 1990 revoking Orders# 93-4 (previously reviewed) . Page 2 of Standard Form 93 (Report of Medical History), 16 July 1990 . Page 3 of Standard Form 88 (Repot of Physical Examination), 16 July 199 . Release from Active Duty Separation Processing orders# 207-8 dated 31 October 1990 (previously reviewed) . DD-214 for the period 19870419-19900918, honorable release from active duty (previously reviewed) . VA letter dated 26 December 2018 verifying effective date of service connected disabilities . Memorandum from General Phillips, Commander’s Inquiry Result (previously reviewed) . Voided OERs (previously reviewed) . Orders #377-5 attaching the applicant to Headquarters Command, U. S. Army Garrison, Fort Sam Houston, for UCMJ action and orders #172-1 revoking this attachment (previously reviewed) . COL EC (retired) sworn Statement (previously reviewed) . Final Leave and Earnings Statement (LES) for Separation issued April 1991 . DODIG letter, dated 25 January 1996 (previously reviewed) . Memorandum from COL T, Commander, U. S. Army Garrison, Fort Sam Houston, dated 16 January 1990, terminating action on recommendation for release from active duty (previously reviewed) 43. The applicant contends: a. That the recommendation for release from active duty initiated by his command was dated in August 1989 before his OERs for the period were dated on 12 October 1989 contending that this is a material error and violation of Army regulations and Standard Operation Procedures (SOP). b. That on 2 August 1989, he was issued orders attaching him to Headquarters Command, U. S. Army Garrisons, Fort Sam Houston, for Uniform Code of Military Justice (UCMJ) action and then the orders were revoked on 6 September 1989 indicating that the original orders were erroneous. c. That the U. S. Army Criminal Investigation Division (CID) found no CID criminal records on him. d. That his referred annual OER is not the original one that was prepared by COL E. COL E provides a sworn statement that as the Executive Officer of the 807th Medical Brigade, he had prepared an original OER on the applicant. The sworn statement does not make it clear what period this was for. d. That his final annual referred OER (880505-890504) and change of duty referred OER (890505-890806) were not processed in accordance with Army Regulation 623-105, paragraph 3-32b and 3-33. e. That the applicant’s referred OERs were submitted to HQDA without his signature in violation of AR 623-105. f. That his final Leave and Earnings Statement (LES) was dated in April 1991 even though his DD Form 14 shows that he was released from active duty on 18 September 1990 indicating that his LES is erroneous. g. That the termination of recommendation for Release From Active Duty action on 16 January 1990 at Fort Sam Houston and the AGR Continuation Board conducted on 17 January 1990 at Full Time Support Center in St. Louis, Missouri, suggested some collusion. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the relief was not warranted. 2. The applicant presented a letter sent to him from the San Francisco District Attorney, dated 15 September 1988, informing him that they were refunding $138.90 for overpayment of child support. The applicant contends that the $138.90 refund is evidence that his referred annual OER for the period 880505-890504 should be removed from the record since the refund shows that he was not guilty of failing to pay child support. However, the referred annual OER made no mention of this misconduct so even if the refund was evidence that he did not fail to pay child support, it has no bearing on the validity of the referred annual OER. The letter from the San Francisco District Attorney stated that the refund was made because the District Attorney’s office intercepted (collected) from the applicant’s Federal/State Income Tax more than the applicant owed for child support and they were refunding this over-payment. This does not demonstrate that the applicant was not guilty of not paying child support but may in fact be proof that he was not paying full child support since it was being collected from his Income Tax refund. 3. The applicant presented a court verdict showing that he was not guilty, presumably of driving while under the influence of alcohol (DWI), however, the document does not say what he is not guilty of. He contends that this is proof that the GOMOR should be removed from his record and that it is further evidence that his referred annual OER for the period 880505-890504 should be removed. However, the GOMOR was not given for DWI nor does it mention DWI, but it was given for failing to take a blood alcohol test. Regulation requires that a GOMOR be issued for failing to take a blood alcohol test. Further, the issue of a DWI or GOMOR was not listed in the referred annual OER text so the not guilty verdict is not a basis for removing the referred annual OER for the period 880505-890504 from his record. 4. The applicant contended that the ABCMR decisional document must be forwarded to the Secretary of the Army for final decision in accordance with 32 Combined Federal Regulation (CFR), section 581.3, due to facts in his case involving reprisals under the Military Whistleblower Protection Act, confirmed by the Department of Defense Inspector General (DODIG) under Title 10, United States Code (USC), section 1034 and DOD Directive 7050.6. The ABCMR found that these provisions to not apply in this case. The 1996 DODIG memorandum review page two, last paragraph, stated that the adverse personnel actions were "NOT reprisals" for his whistleblower allegations to the IG; the adverse personnel actions were independent based on his actions. Accordingly, because there were no "reprisals" according to the DODIG memorandum definition, Title 32, CFR, section 581.3(g)(2)(ii)(B) does not apply and the ABCMR is not required to send decisions in this case to the SA for final decision. Secondly, 32 CFR 581(g)(2)(B)(3)(ii) states that the facts involving reprisal under the MWPA must be "confirmed" by the DODIG under 10 USC 1034 and DODD 7050.06. Title 10 USC 1034 (d) states that the IG receiving a whistleblower allegation will conduct an "investigation" to "confirm" violation of the MWPA and render a report to the DODIG. Based on the version of Title 10, United States Code (USC), section 1034, in effect at the time, the IG was not required to conduct an investigation in cases of allegations made more than 60 days after the date on which the member became aware of the personnel action that was the subject of the investigation. The DODIG 1996 memo was not an "investigation" nor an investigation “report”; it is as it states in the first paragraph of the letter a “review” of the ABCMR decisions. Accordingly, since there was no investigation for confirmation of his Whistleblower allegations or report made as defined by 10 USC 1034, then 32 CFR 581.3(g)(2)(B)(3)(ii) does not apply and the ABCMR is not required to send their decisions to the SA for final decision in his case. 5. The applicant contended that the recommendation for release from active duty initiated by his command was dated in August 1989 before his OERs for the period were dated on 12 October 1989 contending that this is a material error and violation of Army regulations and Standard Operation Procedures (SOP). However, the recommendation for release from active duty did not mention the OERs. The recommendation correctly states that it was made under the provisions of Army Regulation 635-100, paragraph 3-49a(1) and (2) because of misconduct and substandard performance. This recommendation action was terminated and not acted on. 6. The applicant contended that on 2 August 1989, he was issued orders attaching him to Headquarters Command, U. S. Army Garrisons, Fort Sam Houston, for Uniform Code of Military Justice (UCMJ) action and then the orders were revoked on 6 September 1989 indicating that the original orders were erroneous. However, the 2 August 1989 orders were correctly issued coincident to the recommendation by the Commander, U. S. Army Garrisons, Fort Sam Houston, for involuntary release from active duty. After the applicant provided his rebuttal to the proposed release from active duty action on 5 September 1989, it appears that the Commander, U. S. Army Garrisons, Fort Sam Houston, determined that he was not going to pursue the action and revoked the attachment orders on 6 September 1989. There was no error in these orders. 7. The applicant contended that the U. S. Army Criminal Investigation Division (CID) found no CID criminal records on him. However, the personnel actions concerning the applicant were not based on any criminal act. Further, the applicant’s arrest by civilian authorities for suspected DUI is not within the purview of CID. 8. The applicant contended that his referred annual OER is not the original one that was prepared by COL E. COL E provides a sworn statement that as the Executive Officer of the 807th Medical Brigade, he had prepared an original OER on the applicant. The sworn statement does not make it clear what period this was for. However, the statement by LTC W, Executive Officer of the 829th Station Hospital, the unit to which the applicant was assigned as the Assistant Training Officer states that he prepared the original annual OER for the period 880505-890504 for the applicant. LTC W is also the one that signed both of the voided and final OERs as the applicant’s rater. The statement of COL E is inconsistent with the facts of the record. 9. The applicant contended that his final annual referred OER (880505-890504) and change of duty referred OER (890505-890806) were not processed in accordance with Army Regulation 623-105, paragraph 3-32b and 3-33. However, these paragraphs were not in effect until 1997 and consequently do not apply to his OER’s issued in 1989. The Army Regulation 623-105, dated 15 November 1981, was in effect when the applicant’s OERs were issued and paragraph 4-27 and 5-28 apply. a. Paragraph 4-27 required that OERs with negative entries be referred to the rated officer. Paragraph 5-28 required that referred OERs be forwarded to the rated officer acknowledgement and comment before the OER is forwarded to HQDA. The records show that on 12 October 1989, the senior rater complied with AR 623-105 and referred the OERs to the applicant by memorandum for acknowledgement and comment with a suspense of 26 October 1989. On 30 October 1989, the applicant certified on the referral memorandum that the applicant had not acknowledged receipt as of 30 October 1989. The military personnel officer confirmed these facts, that they were in compliance with Army Regulation 623-105 and on 30 October 1989 forwarded the OERs to HQDA. The applicant provides referred OER rebuttal comments dated respectively 23 October and 24 October 1989 but according to the senior rater and the military personnel officer, they were not received by 30 October 1989. b. The DCSPER Officer Special Review Board also considered these questions in the applicant’s appeal of his OER in 1990. The Board concluded that both OERs were referred to the applicant and that the applicant did not acknowledge either referral. The Board further found that the Commander’s Inquiry confirmed the applicant’s substandard performance. While the Commanders’ Inquiry report did find undue influence with regard to the June 1989 version of the annual OER, it found that the first version of the change of duty OER as reflective of the appellant's performance and without command influence. Nevertheless, both reports were upgraded by the rater. The senior rater did not change his evaluation on either OER. The rater, while saying he felt pressured to write the reports negatively, in a separate document characterized the appellant's performance as unsuitable; he did not contradict this in his statements supporting the appeal. The applicant did not provide the necessary evidence to delete the OERs in their final form; therefore, therefore, the presumption of regularity referred to in para 5-32a, AR 623-105, must be applied. 10. The applicant contended that the his referred OERs were submitted to HQDA without his signature in violation of AR 623-105. However, AR 623-105, paragraph 5-28e(3), in effect at the time, states that if the rated officer fails to respond within the suspense period, the senior rater will attach a copy of his or her referral to the original report and indicate that the rated officer failed to complete his or her acknowledgment. The senior rater will then send it HQDA. Paragraph 4-1 states that the OER will not be delayed because it lacks the rated officer's signature. The record shows these provisions of AR 623-105 were followed and there was not error in the submission to HQDA of the applicant’s referred OERs. 11. The applicant contended that his final Leave and Earnings Statement (LES) was dated in April 1991 even though his DD Form 14 shows that he was released from active duty on 18 September 1990 indicating that his LES is erroneous. However, the LES shows in the upper left corner that the period of pay the LES refers to is 1-18 September 1990 consistent with his DD Form 214. The remarks box shows “APR 91 FINAL LES FOR SEPARATION 18 SEP 90” indicating a separation date of 18 September 1990 consistent with his DD Form 214. The “APR 91” indicates the date the LES printed. Examining the box 6 Entitlements (pay) and box 8 Collections, it shows that this LES was correcting his pay for the period October 1989 through February 1991 during which time he received overpayments. There is no error in this LES or what it represents – pay corrections. It is noted that the applicant did not show up for his appointed final clearing action at Fort Sam Houston on 9 June 1990 where his final pay would have been completed avoiding the necessity for later pay corrections. 12. The applicant contended that the termination of recommendation for Release From Active Duty action on 16 January 1990 at Fort Sam Houston and the AGR Continuation Board conducted on 17 January 1990 at Full Time Support Center in St. Louis, Missouri, suggested some collusion. However, there is no evidence of such. Because the recommendation for Release from Active Duty did not leave Fort Sam Houston and was not forwarded to higher headquarters, the AGR Continuation Board at St. Louis would have had no knowledge of its existence. The memorandum terminating the recommendation for Release from Active Duty stated that the AGR Continuation Board would convene on 17 January 1990 and make their determination based on the documents in his Official Military Personnel File. 13. Based on all the foregoing, the Board found no basis to reinstate the applicant in the Army or award him constructive retirement points for service since his June 1990 involuntary discharge from Active Duty. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: After careful review of the court remand, all the evidence of record, and all evidence provided by the applicant, the Board found no error or injustice in the applicant's GOMOR for failing to take a blood alcohol test as directed by AR 190-5, or in the applicant's referred annual OER for the period of 880505-890504 based on his job performance, or in the applicant's separation. Accordingly, the Board found no basis to reinstate him in the Army or provide him constructive credit for retirement. The Board also determined according to the evidence and applicable laws and regulations, that the Board's decision in this case is not subject to forwarding to the Secretary of the Army for final determination under the Whistle Blower Protection Act. The Board recommends that the applicant's requests be denied in total. X CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 32, Code of Federal Regulation (CFR), section 581(g)(2)(ii)(B) states that decisional documents of cases in which the facts involving reprisal under the MWPA, confirmed by the DODIG under Title 10, USC, section 1034 and Department of Defense Directive (DODD) 7050.06 will be forwarded to the Secretary of the Army for final decision. 2. Title 10, United States Code (USC), section 1034 (d), states that the IG receiving a whistleblower allegation will conduct an "investigation" to "confirm" violation of the MWPA and render a report to the DODIG. 3. Army Regulation 190-5 (Motor Vehicle Traffic Supervision), paragraph 2-7a(2), requires a commanding general to issue a written general officer reprimand to any Army officer who refused to take or fails to complete lawfully requested test to measure alcohol content of the blood either on or off the installation when three is reasonable belief of driving under the influence of alcohol. 4. The Army Regulation 623-105 (Officer Efficiency Reports), dated 15 November 1981, in effect at them time when the applicant’s OERs were issued states: a. Paragraph 4-27 states that OERs with negative entries be referred to the rated officer. b. Paragraph 5-28 states that referred OERs must be forwarded to the rated officer for acknowledgement and comment before the OER is forwarded to HQDA. c. Paragraph 5-28e(3) states that if the rated officer fails to respond within the suspense period, the senior rater will attach a copy of his or her referral to the original report and indicate that the rated officer failed to complete his or her acknowledgment. The senior rater will then send it HQDA. d. Paragraph 4-1 states that the OER will not be delayed because it lacks the rated officer's signature. // NOTHING FOLLOWS //