PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE:
         DOCKET NUMBER:

         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The following members, a quorum, were present:

Mr.			Chairperson
Mr.			Member
Mr.			Member

         Also present, without vote, were:

Mr.	Loren G. Harrell		Director
Analyst

         The applicant and counsel if any, did not appear before the Board.

         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)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests in effect, reconsideration of the denial of his application for correction of his military records:

a. Revocation of the 77^TH ARCOM order 271-18 dated 28 September 1995, which transferred him to the control group and to reflect continuous service without interruption.

b. That he be granted pay, points and credit for the year lost as a result of the unlawful transfer to the control group.

c. That he be paid for the days in attendance at the 75B course in an IDT status.

d. That his record be submitted to a stand-by board for those E-8 positions advertised in July 1995 and if selected his time in grade be adjusted to reflect the date he would have been selected if not for the unlawful transfer.

e. That he also be considered for those vacant E-9 positions also advertised.

f. Return of the money that was deducted from his pay for the improperly investigated report of survey in the amount of $1,441.55.

g. Reimbursement of legal fee’s accrued as a result of those unlawful actions taken against him by his superiors in the 1150^th USARF school and the 77^th ARCOM for which professional help was needed to, a total to date of $25,212.55.

3. In support of his current request the applicant has submitted with his DD Form 149 10 volumes of information pertaining to his case, which includes the DODIG investigation.

4. The applicant’s military records were incorporated in the Memorandum of Consideration prepared during the original review of his case.

5. The evidence of record shows that Board denied the applicant’s original application in a Formal Hearing on 3 November 1982. In a request for reconsideration of that denial on 8 January 1986 the Board granted that portion of his request as pertained to removing the Article 15 from his records, restoring the money he was ordered to forfeit as a result of that punishment, and restoring his pay grade (E-6) in an informal hearing. The Board also directed that he be considered by a Standby Advisory Board for promotion to pay grade E-7.

On 10 May 1988 a lawsuit the applicant filed against the Secretary of the Army was dismissed by Federal District Court based on the fact that the applicant waived his rights when he failed to apply for a waiver to remain on active duty.

On 6 May 1989 the applicant appealed the District Court’s dismissal to the United States Court of Appeals. The Court of Appeals concluded that “It is undisputed that [the applicant] had an opportunity in 1980 to seek an extension of his Army service in order to apply for reenlistment and that he elected not to do so. Neither the Army nor the court was required to accept [his] contention that his failure to follow that course of action should be ignored because of his view that it had little chance of success. The Army’s finding that [he] had thereby waived his right to seek reenlistment was neither arbitrary nor capricious.”

On 14 February 1996 the Board again denied a request for reconsideration of the denial of that portion of his appeal as pertained to voiding his discharge and reinstating him on active duty.

The applicant did not meet the pay grade requirement to reenlist with his years of service because of that reduction in grade. An individual who had been involved with the applicant’s separation submitted a statement that the aforementioned SGM from HQDA had authorized a 90 day extension for the applicant to apply for a waiver of the pay grade requirement to reenlist. The applicant declined that extension and was discharged at the expiration of his term of service.

On 9 July 1997, the DODIG responded to the applicant’s request for whistleblower protection. The DODIG concluded that the applicant was improperly reprised against by being threatened by nonjudicial punishment on
1 July 1993; by removal from his position in a USAR unit in March 1994, reassignment in March 1995, and transfer to the USAR Control Group in September 1995; by withdrawal of a recommendation for the Army Achievement Medal, and by rendering an adverse NCOER, all of which were in violation of section 1034 of Title 10, Unites States Code and DOD Directive 7050.6. The DODIG informed the applicant that it agreed with the DAIG’s findings but disagreed with the DAIG’s assessment that a letter of reprimand was not given to him in reprisal for his protected communication. The DOD IG then informed the applicant of his right to apply to this Board in order to have his records corrected.

The applicant again requested reconsideration of his application for correction of his military records wherein he requested that his 5 March 1980, discharge be voided, that his records be corrected to show that he reenlisted in the Regular Army and remained on active duty, that he be considered for promotion to pay grade E-7 by a Standby Advisory Board, and that he be given the back pay and allowance for these corrections. On 25 February 1998, the Board again denied his request for reconsideration of his prior denials.

The DOD Directive Number 7050.6, dated 20 November 1989, covered the Military Whistleblower Protection provisions (Title 10, U.S. Code, section 1034). This directive was reissued on 3 September 1992. The directive indicates that it is DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; that members of the Armed Forces shall be free from reprisal for making or preparing to make lawful communications to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; and that no employee or member of the Armed Forces may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a lawful communication to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization. (Note: This directive was reissued again on 12 August 1995 to include specific other complaints as protected communications and expand the scope of persons and activities to whom a protected communication could be made.)

Army Regulation 20-1 provides, in pertinent part, that anyone (military, DA civilian, family member, or private citizen) has the right to register complaints orally or in writing with an Army IG concerning matters of DA interest. In exercising this right, the complainant will be free from restraint, coercion, discrimination, harassment, or reprimand. Soldiers will be encouraged to discuss their problems or grievances first with their commanding officers, as provided by Army Regulation 600-20. However, persons desiring to submit a complaint directly to an IG at any level, but who do not wish to discuss the matter with their commanding officer or other members of the chain of command, will be permitted to do so. Any type of disciplinary or other adverse action taken against an individual for registering a complaint, except when fraudulently made, is prohibited.

CONCLUSIONS:

1. The Board supports the DOD policy of unrestricted communication with Congress, the IG’s, and various Government investigators, etc., as well as the protection from reprisal against those who make or prepare to make such communications. When such reprisals occur, they constitute an injustice of the sort the Board was created to correct.

2. The evidence of record indicates that the applicant made protected communication; that unfavorable personnel actions (threatened by nonjudicial punishment; by removal from his position in a USAR unit in March 1994; by being reassigned and transferred to the USAR Control Group in September 1995; by withdrawal of a recommendation for the Army Achievement Medal, and by rendering an adverse NCOER) were taken; and that officials responsible for taking the unfavorable personnel action were aware that the applicant had made protected communications. Further, it appears that the unfavorable personnel actions may not have been taken if the protected communications had not been made.

3. Accordingly, it would be in the interest of justice to revoke 77^th ARCOM order 271-18 dated 28 September 1995, which transferred him to the USAR control group; that after point verification conducted that he be granted pay, points and credit for the year lost as a result of an unlawful transfer; that he be paid for the days in attendance at the 75B course in an IDT status; that he be awarded the Army Achievement Medal, that his adverse NCOER (9210-9307) be removed; that his the Letter of Reprimand be removed and that if he meet time in grade requirement that his record be considered by enlisted stand-by advisory board for promotion to E-9.

4. The applicant’s contention that the Report of survey was improperly investigated appears to be without merit. There is no evidence that the report of survey was improperly investigated nor has the applicant provided any evidence in support of his allegation.

5. The applicant’s request for reimbursement of legal fee’s totaling $25,212.55. The payment of attorney’s fees is not authorized by title 10, USC, section 1034. Further, payment of attorney’s is not authorized by title 10, USC, section 1552, the statue under which this Board was created.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by:

a. by removing from his records the LOR dated 22 January 1995, the NCOER (9210-9307), and all references to either one which are contained in his OMPF.
b. by revoking the 77^th ARCOM order 271-18 dated 28 September 1995, which transferred him to the USAR Control Group.

b. by awarding him the Army Achievement Medal.

b. by conducting a complete audit of his record for retirement points verification and granting pay, points and credit for the year lost.

c. by granting pay for the days attendance of the 75B course in an IDT status.
b. by submitting, if appropriate, to duly constituted Standby Advisory Boards for promotion consideration to the grade of E-9, that in the event he is so eligible, and is selected, for promotion, this case be returned to this Board for the implementation of such promotion.

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

BOARD VOTE:

________ ________ ________ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ______________________
                  CHAIRPERSON