IN THE CASE OF: 

		BOARD DATE:  31 May 2022

		DOCKET NUMBER: AR20210017753


APPLICANT REQUESTS: removal of his DA Form 67-10-1 (Company Grade Plate  
(O1-O3; WO1-CW2) Officer Evaluation Report (OER)), for the period 4 June 2019 
through 3 June 2020 (hereafter referred to as contested OER), from his Army Human 
Resource Record (AMHRR). 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record under the Provisions 
of Title 10, U.S. Code, Section 1552) via online application 
*	Contested OER
*	Chief, Assistance Division, U.S. Army Inspector General Agency letter, 8 July 
2021

FACTS:

1.  The applicant states the Department of Defense Inspector General (DODIG) and 
Department of the Army Inspector General (DAIG) has substantiated his claim under 
Title 10 U.S. Code, Section 1034 (Military Whistleblower Protection). It was determined 
he received a retaliatory personnel actions as a result of making protected 
communications. As a result, he requests the removal of the contested OER.

2.  Having had prior enlisted service in the Regular Army, the applicant was appointed 
as a Reserve warrant officer of the Army on 15 February 2017 in the area of 
concentration of 255A (Information Services Technician) after completing the Warrant 
Officer Candidate Course. Subsequently, he was promoted to chief warrant officer two 
(CW2) on 15 February 2019.

3.  He received the contested OER during the month of July 2020, an annual report 
covering 12 months of rated time from 4 June 2019 through 3 June 2020, which 
addressed his duty performance as the Information Services Technician for 
Headquarters and Headquarters Company, Combat Aviation Brigade, Fort Hood, TX. 
His rater was the Brigade S-6, Major (MAJ) and his senior rater was the Brigade XO 
[Executive Officer], MAJ. His rater and senior rater digitally signed the contested OER 
on 30 July 2020 and 31 July 2020, respectively. He digitally signed the OER on 31 July 
2020. The contested OER shows in:

     a.  Part IV (Performance Evaluation – Professionalism, Competencies, and 
Attributes), block b (This Officer's Overall Performance is Rated as), he was rated as 
"Proficient" and his rater entered the following comments: "[Applicant] provided 
adequate communication support to 1st Air Cavalry Brigade during this rating period. 
[Applicant] is a technical expert in his field and he motivated his team to accomplish the 
mission despite a very high operational temp."

     b.  Part IV, block c1 (Character), his rater entered the following comments: 
"[Applicant] supported the SHARP [Sexual Harassment/Assault Response and 
Prevention Program] and EO [Equal Opportunity] incidents during this rating period from 
the Automations and Cybersecurity sections. [Applicant] enforced high standards of 
discipline and created a work environment free of sexual harassment and sexual 
assault."

     c.  Part IV, block c2 (Presence), his rater entered the following comments: 
"[Applicant] provided technical, solutions to the Brigade during multiple exercises 
despite a very high operational tempo. He managed the brigade information technology 
help desk and provided reliable and proficient customer support to 3,000 users 
throughout the brigade area of operation."

     d.  Part IV, block c3 (Intellect), his rater entered the following comments: " [Applicant] 
led the fielding for the Brigade's TSI [Tactical Server Infrastructure] network. He led  
12 Soldiers through the training and ensured they were certified to operate the newly 
fielded equipment. He completed 27 credit hours of college courses towards his 
bachelor's degree while maintaining above a 3.5 GPA." 

     e.  Part IV, block c4 (Leads), his rater entered the following comments: "[Applicant] 
inspired a cyber-network defense team that received a commendable rating during the
DISA Command Cybersecurity Readiness Inspection (CCRI). He built a CCRI program 
that was recognized as the best in the Division during the biannual DISA CCRI. He 
worked tirelessly to teach, train, coach and mentor Soldiers to master advanced 
cybersecurity concepts."

     f.  Part IV, block c5 (Develops), his rater entered the following comments: 
"[Applicant] provided training and development for the network systems administrators 
within the Brigade. He implemented an information technology credentialing program 
that produced 15 security plus credentialed technicians."

     g.  Part IV, block c6 (Achieves), his rater entered the following comments: 
"[Applicant] provided reliable metwork [sic] support to the DCRF Task Force through 
Guardian Response, Sudden Response, and Operation Atropian Guardian. He enabled 
Mission Command for the Brigade and Battalion Staffs and Commanders at all echelons 
during multiple Division-led exercises enabling distributed mission command throughout 
the brigade area of operations." 

     h.  Part VI (Senior Rater), block a (Potential Compared with Officers Senior Rated in 
Same Grade), the entry "Highly Qualified."

     i.  Part VI, block c (Comments on Potential), his senior rater entered the following 
comments: "[Applicant] is in the top 30% of warrant officers that I currently senior rate 
and a competent, technically skilled staff officer. A relatively new CW2, he has 
demonstrated the potential to be extremely successful in his chosen field of expertise 
with additional growth and mentorship. [Applicant] should be assigned to the most 
challenging technical positions for continued development and groom for promotion with 
peers to CW3. Send to the Warrant Officer Advanced Course when eligible."

4.  A review of the applicant's AMHRR shows the contested OER is filed in the 
performance folder. 

5.  His record is void of documentation and he did not provide any evidence showing he 
requested a Commander's Inquiry (CI) or appealed the contested OER to the U.S. Army 
Human Resources Command (HRC). 

6.  Although not available for review, the applicant submitted a request to the DAIG 
regarding his allegations of a Whistleblower reprisal against him in accordance with 
statutory guidance. However, he provides a Chief, Assistance Division, U.S. Army 
Inspector General Agency letter, 8 July 2021 that noted the following:

     a.  We have completed an investigation into your allegations of reprisal under  
Title 10, United States Code, Section 1034 (10 USC §1034), “Protected 
communications; prohibition of retaliatory personnel actions.”

     b.  We determined the allegation that a Brigade Commander directed you be
reassigned was not substantiated.

     c.  We determined the allegations that a Brigade Executive Officer recommended 
you be reassigned and rendered you an unfavorable officer evaluation report (OER) 
were substantiated.

     d.  We determined the allegations that a Brigade Signal Officer recommended you 
be reassigned and rendered you an unfavorable OER were substantiated.

     e.  We determined the allegations that a Brigade Signal Officer rendered you
counseling statements and threatened to reassign you were dismissed.

     f.  The Department of Defense Inspector General agreed with our finding; therefore, 
we closed your case (). We forwarded the Report of Investigation to our Records 
Release Office to redact and provide you a copy.

     g.  In regards to the finding, you may submit an application to the Army Board for 
Correction of Military Records (ABCMR) should you believe an error or injustice exists 
in your Army record. We enclosed a Department of Defense Form 149 (Application for 
Correction of Military Records) for your use. Please visit the Army Review Boards 
Agency website at http://arba.army.pentagon.mil. The website contains information 
about the ABCMR and answers to frequently asked questions. 

7.  The Army Review Boards Agency requested a copy of the DAIG report. On  
29 March 2022, the DAIG provided an Executive Summary of the Report of 
Investigation into the allegation of the Whistleblower reprisal regarding the applicant's 
claims covering events from 21 April 2020 through 31 July 2020 (see attachment). This 
summary, in pertinent part, noted: 

     a.  The 1st Cavalry Division IG made the following determinations based on the 
preponderance of credible evidence:

          i.  We substantiated the allegation that MAJ recommended a subordinate officer 
be reassigned in reprisal for having made protected communications in violation of 
DoDD 7050.06, Military Whistleblower Protection.

          ii.  We substantiated the allegation that MAJ rated a subordinate officer less 
favorably in reprisal for having made protected communications in violation of DoDD 
7050.06 Military whistleblower Protection. 

          iii.  We substantiated the allegation that MAJ recommended a subordinate officer 
be reassigned in reprisal for having made protected communications in violation of 
DoDD 7050.06, Military Whistleblower Protection. 

          iv.  We substantiated the allegation that MAJ senior-rated a subordinate officer 
less favorably in reprisal for having made protected communications in violation of 
DoDD 7050.06, Military Whistleblower Protection. 

          v.  We did not substantiate the allegation that COL directed a subordinate officer 
be reassigned in reprisal for having made protected communications in violation of 
DoDD 7050.06, Military Whistleblower Protection. 

          vi.  We recommended dismissal of the complaint that MAJ rendered counseling 
statements to a subordinate officer in reprisal. 

          vii.  We recommended dismissal of an emergent complaint that MAJ threatened 
to reassign a subordinate officer in reprisal.

     b.  The DAIG made the following recommendations:

          i.  Concur with the conclusions to substantiate the allegations against MAJ and 
MAJ and forward the completed report to their command for appropriate corrections 
actions. 

          ii.  Recommend the complainant appeal to the ABCMR to correct the record or 
seek appropriate relief regarding his OER.

          iii.  Forward this case to DODIG for final approval. 

8.  The DODIG final approval is not available for review; although the DAIG 8 July 2021 
letter confirms they approved the findings.  

9.  He is currently serving with the Headquarters and Headquarters Detachment (HHD),  
205th Military Intelligence Battalion, Fort Shafter, Hawaii.  

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered. The 
Board noted that the 1st Cavalry Division Inspector General made several 
determinations based on the preponderance of credible evidence, including 
substantiated allegations of reprisal by the rating officials against the applicant. The 
Board voted to grant relief. 
?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by:

*	removing the contested OER for the rating period 4 June 2019 through 3 June 
2020 from his Army Human Resource Record (AMHRR) 
*	adding to his AMHRR a statement of non-rated time or a statement explaining 
the gap in his officer evaluation reports for the period 4 June 2019 through 3 
June 2020

		  
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. Department of Defense Directive (DODD)7050.06 (Military Whistleblower Protection), 
implemented the provisions of the Military Whistleblower Protection Act (MWPA) as 
codified in Title 10, U.S. Code, Section 1034. 

     a.  The directive established policy that: 

          (1)  Members of the Military Services (referred to in this directive as "Service 
members") are free to make protected communications.

          (2)  No person will restrict a Service member from making lawful communications 
to a member of Congress or an inspector general (IG).

          (3)  Service members will be free from reprisal for making or preparing to make or 
being perceived as making or preparing to make a protected communication.

          (4)  No person may take or threaten to take an unfavorable personnel action or 
withhold or threaten to withhold a favorable personnel action in reprisal against any 
Service member for making or preparing to make, or being perceived as making or 
preparing to make a protected communication. 

     b.  Protected communications are defined as:

          (1)  Any lawful communication to a Member of Congress or an IG.

          (2)  A communication in which a member of the Armed Forces communicates 
information that the member reasonably believes evidences a violation of law or 
regulation, including:

*	a law or regulation prohibiting sexual harassment or unlawful 
discrimination
*	gross mismanagement
*	gross waste of funds or other resources
*	an abuse of authority
*	a substantial and specific danger to public health or safety

     c.  Reprisal is defined as "taking or threatening to take an unfavorable personnel 
action, or withholding or threatening to withhold a favorable personnel action, for making 
or preparing to make a protected communication." 

     d.  A "personnel action" is any action taken that affects, or has the potential to affect, 
the military member’s current position or career.  Personnel actions include promotions; 
disciplinary or other corrective actions; transfers or reassignments; performance 
evaluations; and any other significant changes in duties or responsibilities inconsistent 
with the military member’s grade.  

2.  According to the DOD Whistleblower Program Guide to Investigating Military 
Whistleblower Reprisal and Restriction Complaints, there are four elements that must 
be established to make a finding of reprisal:

     a.  Element 1 – Protected Communication:  Did a complainant make or prepare to 
make a protected communication, or was complainant perceived as having made or 
prepared to make a protected communication?

	b.  Element 2 – Personnel Action:  Was an unfavorable personnel action taken or 
threatened against the complainant, or was a favorable personnel action withheld or 
threatened to be withheld from complainant?

	c.  Element 3 – Knowledge:  Did the responsible management official(s) have 
knowledge of complainant's protected communication(s) or perceive complainant as 
making or preparing protected communication(s)?

	d.  Element 4 – Causation:  Would the same personnel action(s) have been taken, 
withheld, or threatened absent the protected communication(s)?

3.  Army Regulation 20-1 (Inspector General Activities and Procedures) prescribes 
policy and procedures concerning the mission and duties of the IG.  It also prescribes 
duties, missions, standards, and requirements for IGs throughout the Army.

     a.  Paragraph 1-13 (Prohibited Activity), subparagraph b(2) (Prohibitions Against 
Reprisal – Military Whistleblower), provides that persons subject to this regulation will 
not take (or threaten to take) an unfavorable personnel action or withhold (or threaten to 
withhold) a favorable personnel action with respect to a member of the armed forces for 
making or preparing a (lawful) protected communication.  Lawful communications are 
those communications made to an IG; Member of Congress; member of a DOD audit, 
inspection, or investigation organization; law enforcement organization; or any other 
person or organization (including any person or organization in the chain of command 
starting at the immediate supervisor level) designated under regulations or other 
established administrative procedures to receive such communications.  The term 
"lawful communication" encompasses information that the Soldier reasonably believes 
provides evidence of a violation of law or regulation, including a law or regulation 
prohibiting sexual harassment or unlawful discrimination, gross mismanagement, a 
gross waste of funds or other resources, an abuse of authority, or a substantial and 
specific danger to public health or safety.

     b.  Paragraph 3-1 (Nature of IG Records) provides that all IG records, including 
USAR IG records, are the property of the Secretary of the Army.  IGs maintain these 
records on behalf of the Secretary of the Army.  The Secretary's designated authority for 
all IG records is the IG.  The IG, the Deputy IG, the Principal Director to the Inspector 
General for Inspections, and their designated representatives (DAIG's legal advisor and 
deputy legal advisor) have the authority to release IG records.  Army IG records are any 
written or recorded IG work product created during the course of an IG assistance 
inquiry, inspection, investigative inquiry, or investigation.  An IG record includes, but is 
not limited to, correspondence or documents received from a witness or a person 
requesting assistance, IG reports, IGNET data, or other computer automatic data 
processing files or data, to include IG notes and working papers.

     c.  Paragraph 3-3 (Use of IG Records for Adverse Action) provides that IG records 
will not be used as the basis for adverse action (see Glossary) against any individual 
unless specifically authorized by the Secretary of the Army, the Under Secretary of the 
Army, the Army Chief of Staff, the Army Vice Chief of Staff, or the IG.  Requests must 
be submitted to the IG.  Any request to use the results of an IG investigation for adverse 
action must state why the command did not initiate a command investigation into the 
alleged misconduct and why a follow-on command investigation would be unduly 
burdensome, disruptive, or futile.  Command investigations preclude the necessity of 
using IG records for adverse action and thereby safeguard the integrity of the IG 
system.  An exception to this rule is the use of DODIG-approved reports of investigation 
or investigative inquiry containing substantiated non-senior official allegations of 
violations of Title 10, U.S. Code, section 1034 (Reprisal), as a basis for adverse action.

     d.  Paragraph 3-8 (Release of Records and Reports under the Military Whistleblower 
Reprisal Statute) provides that an IG may provide information relating to complaints of 
whistleblower reprisal and improper mental health evaluation referral directly to the 
DODIG Military Reprisal Investigations upon request without the IG or the DAIG's 
Records Release Office approval.  This information includes, but is not limited to, the 
original complaint with supporting documentation; IG records or investigation material; 
official personnel and medical records (orders, evaluations, and so forth); Army 
Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) 
investigations, commander's inquiries, or equal opportunity investigations; and any other 
information deemed relevant to resolving an official complaint.  This exemption only 
applies when the DODIG Military Reprisal Investigations requests the information in 
support of a preliminary inquiry or investigation.


     e.  Paragraph 3-12 (Requests for Reconsideration of IG Findings, Opinions, 
Judgments, or Conclusions) provides that all requests to add or delete a subject, alter a 
function code, and/or alter an allegation determination in an IG record will be forwarded 
or directed to the DAIG Assistance Division for referral to the appropriate divisions 
within the DAIG for review prior to action by the IG, the Deputy IG, or the Principal 
Director to the IG for Inspections.  Only the IG may approve or disapprove requests to 
amend determinations in IG records.  All requests to amend determinations in IG 
records will include one copy of the record for which the amendment is sought; any 
documents in support of or related to the disputed record; acknowledgement to the 
requester; and recommendations, with supporting rationale, concerning whether the 
amendment should be approved or disapproved.  Requests for amendments concerning 
opinion, judgment, or conclusion may be granted upon a showing of fraud, mistake of 
law, mathematical miscalculation, or newly discovered evidence.

     f.  Paragraph 7-4b (Soldier Allegations of Whistleblower Reprisal under Title 10, 
U.S. Code, Section 1034), provides that IGs within Military Departments are authorized 
to grant whistleblower protection for reprisal allegations presented directly to them by 
service members.  If a Soldier presents a reprisal allegation that appears to meet the 
criteria outlined in Title 10, U.S. Code, section 1034, the IG who receives the allegation 
will separate all other issues or allegations from the complaint and then forward only the 
reprisal complaint and all supporting documentation directly to the Military Reprisal 
Investigations Office at the DODIG.  The DODIG is the final approving authority for 
whistleblower reprisal cases that are declined or closed administratively in accordance 
with DODD 7050.06.

     g.  The Glossary provides the following definitions:

          (1)  Assistance Inquiry:  This is an informal fact-finding process used to address 
or respond to a complaint involving a request for help, information, or other issues but 
not allegations of impropriety or wrongdoing.

          (2)  Command IG:  The senior detailed IG of a Modified Table of Organization and 
Equipment or Table of Distribution and Allowances organization of the active Army, 
Army National Guard, or USAR.  The command IG works directly for the commander, 
who is normally a commanding general, installation commander, State Adjutant 
General, or director of an organization.

          (3)  Directing Authority:  An Army official who has authority to direct an IG 
investigation or inspection.  Commanders or directors who are authorized detailed IGs 
on their staffs may direct IG investigations and IG inspections within their commands.  
Although command and State IGs may direct IG investigative inquiries, they are not 
considered directing authorities.

          (4)  Founded/Unfounded:  "Founded" is one of two final dispositions for an IG 
issue to be used when the IG's inquiry into the matter determined the problem had merit 
and required resolution.  "Unfounded" is the second of two final dispositions for an IG 
issue to be used when the IG's assistance inquiry into the matter yields no evidence that 
a problem existed for the IG to resolve.

          (5)  Not Substantiated:  A conclusion drawn by an IG at the close of an 
investigative inquiry or investigation when the preponderance of credible evidence 
suggests the subject or suspect did not do what was alleged in the allegation.

          (6)  IG Investigation:  A formal fact-finding examination into allegations, issues, or 
adverse conditions of a serious nature that provides the directing authority a sound 
basis for making decisions and taking action.  An IG investigation involves the 
systematic collection and examination of evidence that consists of testimony recorded 
under oath, documents, and, in some cases, physical evidence.  Only the directing 
authority can authorize IG investigations using a written and signed directive.  IGs 
normally do not resolve allegations using this methodology but instead rely on the 
investigative inquiry.  IGs report the conclusions of their investigations using a Report of 
Investigation.  Occasionally, IG investigations may examine systemic issues, especially 
when the possibility of some wrongdoing exists.  For example, an IG might investigate 
an allegation that the development of a weapon system is fraught with fraud, waste, and 
abuse.

          (7)  IG Investigative Inquiry:  An informal fact-finding examination into allegations, 
issues, or adverse conditions that are not significant in nature – as deemed by the 
command IG or directing authority – and when the potential for serious consequences 
(such as potential harm to a Soldier or negative impact on the Army's image) are not 
foreseen.  The IG investigative inquiries involve the collection and examination of 
evidence that consists of testimony or written statements, documents, and, in some 
cases, physical evidence.  Command IGs direct investigative inquiries and provide 
recommendations to the directing authority or subordinate commanders as appropriate.  
The directing authority reserves the right to direct an investigative inquiry if he or she 
feels an investigation is not appropriate.  IGs resolve most allegations using this 
methodology and report their conclusions using the ROII.

          (8)  ROII:  A written report used by IGs to address allegations, issues, or adverse 
conditions to provide the directing authority, command, or State IG a sound basis for 
decisions.  The directing authority, command, or State IG approves the ROII.

          (9)  IG Records:  Any written, recorded, or electronic media information gathered 
and produced by an IG.  These include, but are not limited to, any correspondence or 
documents received from a witness or a person requesting assistance; IG reports of 
inspection, inquiry, and investigation; IGNET or other computer automated data 
processing files or data; and DA Forms 1559 when entries are made on either side.  IG 
records may contain documents that an IG did not prepare.

4.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) 
prescribes Army policy for the creation, utilization, administration, maintenance, and 
disposition of the OMPF. It states letters of reprimand and OERs will be filed in the 
performance section of the OMPF.

5.  Army Regulation 600-37 (Unfavorable Information) provides that once an official 
document has been properly filed in the OMPF, it is presumed to be administratively 
correct and to have been filed pursuant to an objective decision by competent authority.  
Thereafter, the burden of proof rests with the individual concerned to provide evidence 
of a clear and convincing nature that the document is untrue or unjust, in whole or in 
part, thereby warranting its alteration or removal from the OMPF.

6.  Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report 
accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be 
administratively correct, to have been prepared by the proper rating officials, and to 
represent the considered opinion and objective judgment of the rating officials at the 
time of preparation.  The burden of proof rests with the applicant. Accordingly, to justify 
deletion or amendment of a report, the applicant must produce evidence that 
establishes clearly and convincingly that the presumption of regularity should not be 
applied to the report under consideration and action is warranted to correct a material 
error, inaccuracy, or injustice.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210017753


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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