2. The applicant requests the following corrections be made to his military records: (a) that the Board’s directive that his relief for cause Officer Efficiency Report (OER) and related derogatory documents be removed from his military files be complied with; (b) that his two Meritorious Service Medals be posted to his Official Military Personnel File (OMPF); (c)  that he be promoted to lieutenant colonel effective 1 June 1991; (d) that he be given back pay from the date of that promotion to the date of his retirement; (e) that he be retired in the rank of lieutenant colonel; (f) that he be given back pay for the difference between major and lieutenant colonel from the date of his retirement; (g) that he be considered by a colonel, O-6 promotion board; and (h) that he be given a “last day” promotion (promoted but not paid as) to colonel if he is selected by the colonel promotion board.

3. He states that a Department of Defense Inspector General (DODIG) investigation established that he was the victim of retaliation for reporting to the Criminal Investigation Division (CID) the illegal activities of three people he worked with, including his rater. His information led to the criminal prosecution of several of his coworkers and his rater. However, his rater was allowed to render a relief for cause OER on him after he had been relieved of his duties and knew that he had informed the CID of his illegal activities. In response to a request for correction of records under the Military Whistleblower Protection Act, the Board directed that the relief for cause OER and related derogatory information be removed from his OMPF. However, after he had been passed over for selection for an Active Guard and Reserve (AGR) lieutenant colonel position vacancy by several Tour Advisory Review Panels (TARP’s), which precluded him from being promoted to that grade, he submitted a second request for a DODIG investigation under the Military Whistleblower Protection Act. That investigation revealed that the Board’s directive to remove the relief for cause OER and related derogatory information from his OMPF was not complied with and that the several TARP’s which had considered him for assignment to a lieutenant colonel AGR position had seen that documentation.  In addition, the DODIG investigation established that members of the TARP knew of his relief for cause OER and other actions taken against him in conjunction with that report. He contends that if the Board’s directive had been complied with and the OER and related derogatory information had been removed from his records, and if the TARP members who had personal knowledge of his situation had disqualified themselves as they were required to do, he would have been selected for assignment to a lieutenant colonel position and promoted to that grade. That promotion would have resulted in his consideration and possible selection for promotion to colonel and retirement in the rank of lieutenant colonel or colonel.

4. The applicant’s military records were incorporated in the Board’s proceedings dated 12 July 1989 (COPY ATTACHED).

5. Since the date of the Board’s original proceedings, the applicant’s military records show that while he was serving as a guardsman on active duty in the AGR program under title 10, U.S. Code, he was selected for promotion to lieutenant colonel with an effective date of promotion of 16 December 1993. However, he was never promoted to that rank until 31 January 1996, the date of his retirement for years of service.

6. On 4 March 1997 a Report of Investigation (ROI) was conducted by the DODIG to determine whether the applicant’s failure to be selected for a lieutenant colonel position by the National Guard Bureau (NGB) TARP was related to his substantiated allegation that he was retaliated against due to his protected communication with CID.

7. That investigation established that the applicant was ranked extremely low in the 1991 through 1995 TARP’s, and that those low rankings were the reason he was not selected for a lieutenant colonel position or, therefore, promoted. The investigating officer (IO) also determined that while the Board’s directive to remove the derogatory material from the applicant’s OMPF had been complied with, the ARNG did not remove that material from the packet which was reviewed by the TARP’s, which also contained the detailed proceedings from this Board’s first consideration. Comments which were contained in the applicant’s TARP packet, and therefore reviewed by the TARP, included “[a general] wants this guy out of the officer corps as soon as possible. He is an embarrassment to the Army and the NG” and “[The applicant] had major problems while serving as an Assistant Professor of Military Science . . .” and “[The applicant] has been in a damage control position since 1988. [He] has worked hard to recover his standing in the AGR program.” The ARNG’s contention that the Board’s directive did not apply to that packet was deemed to be inappropriate by the IO.

8. The IO also determined that at least one member of the TARP had based his ranking of the applicant on his recall of the applicant’s relief for cause OER.

9. Lastly, the IO determined that the applicant’s TARP packet had not been updated with current information, including the omission of a Meritorious Service Medal.

10. The DODIG ROI concluded that the applicant’s failure to be promoted to lieutenant colonel was not due to his protected communication with the CID (whistleblowing). He was not promoted because he was not selected by a TARP, and his failure to be selected was reasonably based on his low rankings by those boards.

11. NGR Regulation 600-10, “ARNG Tour Program (NGB Controlled Title 10 Tours),” provides for the Chief, National Guard Bureau to convene boards to select officers to fill title 10, U.S. Code (Federal) ARNG vacancies.

12. NGR Regulation 600-100, “Commissioned Officer, Federal Recognition, and Related Personnel Actions,” provides that an ARNG officer serving on active duty under title 10, U.S. Code, will be promoted to a higher grade when selected for promotion by a DA board and when occupying a position commensurate with the higher grade.

13. Army Regulation 135-155, table 2-1, provides the years in grade and years of commissioned service for promotion of reserve officers by a unit board (for specific unit vacancies) and for promotion of reserve officers by a mandatory board. The years in grade required by a mandatory board is between 2 to 3 years greater than that for a unit board, other than for promotion to 1st lieutenant. For consideration for promotion by a unit board to colonel, a lieutenant colonel must have 3 years in grade. The years in grade to be considered for promotion to colonel by a mandatory board is announced annually.

CONCLUSIONS :

1. The Board agrees with the DODIG that the applicant’s failure to be selected for a lieutenant colonel position by the TARP’s, and, therefore, his failure to be promoted to that grade, was not a direct result of his protected communication with the CID. As such, his request does not fall within the purview of the Military Whistleblower Protection Act.

2. However, there is no doubt that the ARNG’s failure to remove the applicant’s relief for cause OER, and allied derogatory information, from his TARP packet was a major factor in his failure to be selected for a lieutenant colonel position. It was the intent of the Board to have this information removed from all of the Department of the Army records.

3. As such, some form of relief would be indicated, in the interest of justice.

4. The applicant’s request to be promoted to lieutenant colonel, pay grade O-5, effective 1 June 1991, cannot be accepted by the Board. The earliest date he could have been promoted was 16 December 1993, the effective date of his promotion as listed on his promotion orders.

5. Although the applicant has not proven that he would have been selected for a lieutenant colonel AGR position by the first, or any subsequent, TARP, and he has not submitted any evidence that his record was clearly superior to the records of the officers which had been chosen, it is clear that he was not given a reasonable opportunity to compete against his peers.

5. As such, it is the opinion of the Board that he should be given the benefit of doubt by being promoted to lieutenant colonel on 16 December 1993, the effective date of his USAR promotion. This would entitle him to over 2 years of back pay for the difference in rank and would entitle him to retired pay in that rank.
6 In addition, the applicant’s request that the Board’s approved recommendation that all derogatory documents and OER’s be removed from his military files be complied with has merit. The DODIG has determined that the NGB has copies of the applicant’s relief for cause OER and related documents in his TARP packet. It was the intent of the Board to remove those documents from all files maintained by the Army.

7. Likewise, it appears that the applicant’s two Meritorious Service Medals will never be posted in his OMPF if not ordered by the Board.

8. As for the applicant’s request to be considered by a colonel promotion board and to give him a “last day” promotion to colonel is not appropriate. With his date of rank established as 16 December 1993, he has 2 years, 1 month and 15 days time in grade on the date of his retirement, well less than that required to be considered by a unit board, much less a mandatory board.

9. 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:

         a by showing that the individual concerned was promoted to lieutenant colonel effective 16 December 1993;

         b. by showing that he was permanently retired for years of service on 1 February 1996 in the rank of lieutenant colonel;

         c. by paying to him the difference in pay this correction of records would entitle him to;

         d. by removing from all Department of the Army records, both official and unofficial, all copies of his OER for the period covering 1 December 1985 to 30 November 1986 that do not have the intermediate rater’s comments deleted;

         e. by removing from all Department of the Army records, both official and unofficial, all copies of his OER for the period covering 1 July 1987 to 25 April 1988; and

         f. by posting his two MSM’s to his OMPF and updating his Officer’s Record Brief, DA Form 2-1, and all other applicable documents in his OMPF with those awards.

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