2.  The applicant requests that his Officer Evaluation Report (OER) for the period 900929-910302 be expunged from his Official Military Personnel File (OMPF) and that he be given immediate reconsideration for promotion to the rank of colonel.  He states that the OER was rendered in reprisal for a letter he had written to Congressman Les Aspin complaining of mismanagement and professional improprieties by his rating chain.

3.  The applicant is a U.S. Army Reserve (USAR) lieutenant colonel in the Judge Advocate General’s Corps.  In 1990, he was the commander of the 173rd Staff Judge Advocate (SJA) Detachment (USAR) when he was called to active duty on 20 September 1990 for Operation Desert Shield/Storm.  He was deployed to Saudi Arabia and assigned duties as Chief, Administrative Law Division, Office of the SJA, U.S. Army Forces Central Command (USARCENT).  The contested OER, which was not completed by the senior rater until 26 June 1991 when it was referred to the applicant in accordance with Army Regulation 623-105, was rendered as a change of rater report.

4.  On 27 June 1991, the applicant, claiming the report was replete with errors, injustices, and illegalities, requested a commander’s inquiry be conducted into the facts and circumstances surrounding the contested OER.  An inquiry was conducted at the direction of the Commanding General, Third U.S. Army and concluded on 10 February 1992.  It found the OER to be both administratively and substantively accurate. Subsequent to this act, the applicant was passed over for promotion to the rank of colonel.

5.  On 10 June 1992, the applicant filed a written complaint with the Department of Defense Inspector General’s Office (DoD IG) alleging that he was reprised against in violation of DoD Directive 7050.6, Military Whistleblower Protection. The complaint was referred to the Department of the Army IG (DAIG) for investigation.

6.  The DAIG investigation was finished on 5 April 1993 and concluded that the applicant was the victim of reprisal for his whistleblower activities and recommended that the contested OER be expunged from his OMPF.

7.  The applicant next submitted a request to this Board on 9 May 1996 asking for expungement of the contested OER and citing the DAIG and DoD IG reports in support thereof.  On 11 June 1996, after obtaining the necessary information from the DAIG and DoD IG, the Board requested an advisory opinion from the Officer Special Review Board (OSRB) in the Office of the Deputy Chief of Staff for Personnel.  The OSRB concurred with the IG reports and took administrative action to expunge the contested OER from the applicant’s OMPF.  Because promotion reconsideration is outside the purview of their responsibilities, the OSRB recommended that the Board approve that portion of the applicant’s request.

CONCLUSIONS:

1.  The applicant was reprised against for his whistleblower activities while a member of the USARCENT SJA Office during Operation Desert Shield/Storm.  The reprisal took the form of a referred OER.  This conclusion is supported by the DAIG investigation of 5 April 1993.

2.  Agreeing with the DAIG investigation results, the OSRB, on 12 July 1996, took administrative action to expunge the contested OER from the applicant’s OMPF and recommended that the Board direct promotion reconsideration.

3.  The applicant was nonselected for promotion to the rank of colonel based on an OMPF which contained the improper OER.

4.  In the interest of justice, it would be fair and equitable to afford the applicant immediate promotion reconsideration to the rank of colonel based on his corrected OMPF.


RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by submitting the military records of the individual concerned to a duly constituted Special Selection Board for consideration for promotion to the rank of colonel.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON