APPLICANT REQUESTS: That he be retired in pay grade E-7.
APPLICANT STATES: In effect, as a result of retaliation for filing an EO complaint against his rater, he was removed from his duty position. When it was discovered that he was removed from the position illegally he elected to request retirement because he was not happy to go back to work for the same man [he had] reported.... He states after he applied for retirement his position was upgraded to E-7 and given to a personal friend of his rater. He indicates he had served his country honorably for a lot of years and around January 1994 his supervisor started making [his] life difficult at [his] job.
EVIDENCE OF RECORD: The applicant's military records show:
He served on active duty between 1979 and 1988. At the time of his release from active duty in 1988 he was serving in pay grade E-5, which he had been promoted to in December 1984.
In March 1989 he returned to active duty in an Active Guard Reserve (AGR) position with the Florida Army National Guard. He was promoted to pay grade E-6 in November 1991.
Documents contained in the applicants file indicate he filed an EO complaint In July 1993 apparently as a result of abusive language used by his supervisor. The complaint was resolved locally when the applicant signed a resolution statement on 12 September 1993. In December 1993 the applicant filed a second complaint for essentially the same issue and received a letter of apology from his supervisor who stated it was not his intention to offend to applicant and he apologized for any offense that [the applicant] may have felt.
It appears the applicant submitted a third memorandum to EO officials in January 1994, apparently as the result of on going harassment. He again reiterated that he felt he was, in effect, being singled out and harassed by his supervisor. He noted his requests for temporary removal from his duty position in order to avoid his supervisor were being denied.
In October 1994 the applicant requested retirement under the newly announced Voluntary Early Retirement Program which enabled certain soldiers with at least 15 years of active Federal service to retire. The applicants request was approved and on 31 December 1994 he was released from active duty with 16 years and 1 month of active Federal service. His name was placed on the retired rolls effective 1 January 1995.
The applicant successfully completed the Advance NCO course for his specialty in June 1993. The academic report indicated he had achieved course standards and demonstrated satisfactory abilities in each of the evaluated areas.
The applicants records contain 5 performance evaluation reports rendered between March 1989 and May 1993 and involved five different rating officials. The applicants performance was routinely rated as successful by his raters while his senior raters consistently rated his overall performance and potential for promotion in the second block. The final evaluation report, for the period June 1992 through May 1993, completed on 7 November 1993 noted the applicant needed to improve in the area of competence and training. The senior rater rated the applicants overall performance and potential in the third block.
Recruitment for a replacement to fill the applicants position was announced on 26 October 1994. The position announcement indicates the vacancy could be filled at the E-6 or E-7 level.
In the processing of this application an advisory opinion was provided (COPY ATTACHED) by the National Guard Bureau. It noted that information provided by the Florida Army National Guard indicated the applicants duty position was grade at E-7 some time between 1989, when [the applicant] was hired, and July 1993. Manning documents provided by that office confirm the position was graded at E-7 at least by July 1993. (NOTE: Copies of unit manning reports for the period July 1993 and February 1994 show several individuals, including the applicant, occupying positions graded higher than the occupants own grade.) They indicated the applicant completed the advanced course in June 1993, making him eligible for consideration for promotion to pay grade E-7 but that the applicant was not selected for promotion. They recommended his request be denied.
Information received from the Department of Defense Inspector Generals Office confirms the applicant was not designated a whistleblower under the Whistleblower Protection Act.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. The evidence confirms, contrary to the applicants contention, that his position was not upgraded from E-6 to
E-7, after he submitted his retirement request, as retaliation for previously filed EO complaints. Rather the applicant was eligible for, but not selected for promotion to E-7.
2. The applicant states he was illegally removed from his position and yet his January 1994 memorandum to EO officials indicates he requested reassignment.
3. Although the applicant may have filed several complaints it appears all were resolved with no findings substantiating his claims of retaliation. He had a variety of rating officials during his period of duty with the Florida Army National Guard and each one essentially concluded the applicants work was satisfactory but not of a level which would justify exceptional ratings.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
5. In view of the foregoing, there is no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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