2.  The applicant requests correction of his military records by removing an officer evaluation report (OER) covering the period 28 July 1992 through 13 October 1992 (sic); by removing his relief for cause of command; by removing the selection for his forced early retirement; and by returning him to active duty status with back pay.  Also, the applicant requested that final action on his application be deferred until a resolution of the request for investigation by the Department of Defense Inspector General (DODIG) was completed.

3.  On 24 January 1995, a request was submitted to the DOD Hotline under the Military Whistleblower Protection provisions.  It was alleged that the applicant received adverse personnel actions, to include an adverse OER, relief for cause, and forced retirement from the Army, which were taken by senior officers in the Army in reprisal for the applicant and his wife making lawful communications to members of Congress and senior officials in the Army.

4.  In a comprehensive statement to the DOD Hotline, the applicant explained the circumstances that had occurred.  It indicates that the applicant reported for duty as Commander of the Medical Department Activity (MEDDAC), Redstone Arsenal, Alabama, in July 1991; that his wife was denied membership in the Officers' Wives Club at Redstone Arsenal in September 1991 because the applicant did not belong to the Officers' Club; that the denial amounted to coercion for the applicant to join the Officers' Club and was in violation of long-standing Army policy that membership in Officers' Clubs and other morale, welfare, and recreation (MWR) activities are voluntary; that the applicant indicated to senior post personnel that, while he had the financial resources to pay the monthly dues to the Officers' Club, junior members in his command might not; that the applicant's insistence that regulations be adhered to was immediately met with resistance and ridicule; that his wife continued to seek membership in the Officers' Wives Club, but she was denied each time because the applicant was not a member of the Officers' Club; and that, during the next several months, the applicant and his wife were engaged, through proper channels, in vocal and very visible challenges to the Redstone Arsenal's policies.

5.  The applicant's military records show that he was born on 29 August 1934.  He served in the Regular Army (RA) from 18 January 1954 through 4 January 1957.  He was separated in the rank of specialist three (temporary) as an overseas returnee.

6.  On 5 May 1977, he accepted an Army Reserve appointment as a captain, Medical Corps, and was ordered to active duty. He was promoted to the ranks of major (temporary), lieutenant colonel, and colonel on 5 May 1977, 8 February 1979 (date of rank of 5 November 1978), and 1 September 1984, respectively.  On 5 March 1992, he accepted an RA appointment as a colonel, Medical Corps.  On 31 August 1994, the applicant was released from active duty, in pay grade 
O-6, under Army Regulation 635-100, paragraph 4-28 (reduction in force).  He was placed on the retired list on 1 September 1994, in pay grade O-6.

7.  During the periods 3 August 1977 through 25 June 1978, he received the maximum score of 200 on his two OER's while serving as Chief, Pathobiology Branch, Aberdeen Proving Ground, Maryland.  He was a resident in Nuclear Medicine from 26 June 1978 through 25 June 1979 at Walter Reed Army Medical Center (WRAMC), Washington, D.C.

8.  The available OER's indicate that the applicant received the ratings shown below.  The rating system depicted below has six entries:  the first two entries are derived from the rater performance and potential blocks, expressed in Roman numerals, with I the highest and V the lowest; the last four entries are derived from the senior rater potential evaluation (senior rater profile), with the third entry reflecting the applicant's standing in a bell-shaped distribution pattern of 100 officers of the same grade (i.e. top, top two through eight, and bottom), and the fourth through sixth entries portraying, respectively, the number of officers ranked above, equal to, and below the applicant).

	Period	Rank	Position	Ratings

26 Jun 79-10 Jun 80	LTC	Nuclear 	I/I/Not shown
			Medicine Office,
			WRAMC
11 Jun 80-10 Jun 81	 "	Chief, Nuclear	I/I/Top2/8/7/5
			Medicine, Europe
11 Jun 81-10 Jun 82	 "	   “            II/II/Top3/22/4/7
11 Jun 82-10 Jun 83	 "	   "            I/I/Top2/22/14/14
11 Jun 83-20 Jan 84	 "	Assistant       II/II/Top3/44/15/3
			Chief, Nuclear
			Medicine,
			Madigan Army
			Medical Center
16 Jun 84-15 Jun 85	COL	Cdr, General    I/II/Top3/63/15/2
			Dispensary,
			Korea

	Period	Rank	Position	Ratings

16 Jun 85-15 Jun 86	 "	Deputy Cdr for	I/I/Top2/8/11/21
			Clinical
			Services,
			Fort Riley
11 Sep 86-10 Sep 87	 "	Deputy Cdr for  I/II/Top2/44/26/2
			Clinical
			Services, Europe
11 Sep 87-12 Jul 88	 "	   "	I/II/No senior 
				rater
13 Jul 88-12 Jul 89	 "	Cdr, Health 	I/I/Top/0/1/0
			Clinic, Fort 
			Sheridan
13 Jul 89-11 Jan 90	 "	   "	I/I/Top/0/2/0
12 Jan 90-16 Nov 90	 "	   "	I/I/Top2/0/0/0
 8 Nov 90-12 Jun 91	 "	Cdr, Medicine,  II/II/Top3/9/9/9*
			Panama
13 Jun 91-31 Mar 92	 "	Cdr, MEDDAC,    I/I/Top2/144/127/83
			Redstone	**
			Arsenal
 1 Apr 92-27 Jul 92	 "	   "	I/I/Top2/12/34/2
				***
28 Jul 92-14 Jan 93	 "	   "	IV/III/	Top4/8/0/0
				****
15 Jan 93-14 Jan 94	 "	Chief, Nuclear	I/II/Top3/12/11/6
			Medicine
			Service, Europe
          
*This was a change of duty OER.  In Part IV-Performance Evaluation-Professionalism ("1" is the highest degree and "5"
is the lowest degree), he received "2's" in "Motivates, 
challenges and develops subordinates" and "Sets and enforces 
high standards."

**This was a change of rater OER.  The rater (a major general) stated that the applicant’s performance had been outstanding . . . the applicant’s Total Quality Management (TQM) program has enriched internal and external customer satisfaction . . . the applicant was a highly visible, caring leader with quarterly feedback sessions with assigned personnel and supported unit commanders, and monthly inspections of MEDDAC facilities . . . his performance has significantly improved the wellness of this command and the retirees who live in this area.  The intermediate rater (a brigadier general) stated that the applicant had performed in an outstanding way during the rating period . . . he continued and expanded the development of the TQM process.  The senior rater (a major general) stated that the applicant is one of our most experienced officers who has been enthusiastic, proactive, innovative, and dedicated . . . he has performed his duties in an outstanding manner as Commander of the Redstone Arsenal MEDDAC . . . his strategic planning, Gateway to Care initiatives, management effectiveness, decentralization of budget, conversion of Quality Assurance and TQM, and improvements of readiness posture had been particularly noteworthy achievements.

***This is a senior rater option OER.  The rater (a brigadier general who was the intermediate rater on the previous OER) stated that . . . he has been innovative in evaluating the strengths and weaknesses of his institution and developing management strategies to address weaknesses . . . he has worked aggressively at evaluating the rising "CHAMPUS" expenditures and in dealing with the budget shortfalls . . . the morale of enlisted and civilian and support staff remains high and supportive of his leadership . . .  The senior rater (a major general who was the rater on the previous OER) stated that the applicant's performance has been exceptional . . . he motivates subordinates to continuously seek ways to improve themselves and the health care services they provide . . .

****This was a relief for cause OER.  In Part IV-Performance Evaluation-Professionalism, he received "2's" in "Motivates, challenges and develops subordinates;” "Clear and concise in written communication;" "Displays sound judgment;" "Sets and enforces high standards;" and "Clear and concise in oral communication."  The rater (a colonel), who was stationed at Dwight David Eisenhower Army Medical Center, Fort Gordon, Georgia, stated that the applicant failed to communicate his plans to his subordinates or to provide clear direction and leadership; that the applicant has failed to provide a clear-cut and realistic vision of his organizational goals for the MEDDAC, Redstone Arsenal; that this failure was specifically related to goals concerning the establishment of Gateway to Care, business plans, TQM, and an effective utilization program . . . there is no climate of teamwork, trust, or confidence within his organization; that the applicant failed to instill in his subordinates a sense of responsibility; that, as a commander, the applicant had to accept responsibility for the command climate and in his command; that the command climate was poor; and that the applicant was a fine physician and a highly ethical and decent man.  The senior rater (a major general), who was the Commander, Army Missile Command, Redstone Arsenal, stated, in effect, that he concurred with the rater's assessment and the Health Services Commander's (HSC), who was stationed at Fort Sam Houston, Texas, decision to relieve the applicant of command; that he agreed that the applicant was a fine physician and a highly ethical and decent man, however, the applicant did not demonstrate the ability to command; that not everyone can do this successfully; and that the applicant could still serve the Army in a clinical role or as a member of a senior staff.
          
9.  In February 1992, the applicant and his wife contacted a member of Congress, the Post Director of Community and Family Actions, and the Post IG regarding Redstone Arsenal's policy on Officers' Wives Club membership.

10.  In December 1992, the Commander, Army Community and Family Support Center, sent out a message to Army commanders worldwide which stated that this was to remind commanders that membership in military clubs was voluntary and any proposal or initiative to compel membership was prohibited; that, while we know this was not a common practice, it was incumbent on us to avoid even the appearance of impropriety in these times when our every move was scrutinized; that, although the Department of the Army (DA) did not dictate how private organizations’ operate nor do we interfere with their internal affairs, we do not endorse practices whereby private organizations’ membership was contingent upon an individual becoming a member of a military club; and that the approval authority for private organizations on the installation had to ensure that private organizations’ practices did not give the appearance of pressuring authorized MWR patrons to participate in the MWR programs.  (Note:  A staff member of the Board was informally advised by the authorities at the Army Community and Family Support Center that the message was dated 1 December 1992.  The copy of the message received with the application indicates that it was faxed on 22 December 1992.)

11.  On 28 December 1992, the Commander, Army Missile Command, Redstone Arsenal (the senior rater on the contested OER), sent a memorandum to the Commander, Redstone Arsenal Support Activities, referencing the foregoing message.  He indicated, in pertinent part, that he had decided to terminate the requirement that Officers' Club membership be a prerequisite for membership in the Officers' Wives Club; that he did it in his capacity as the approval authority for private organizations’ operation; and that his decision was based on one key point, which was that he did not wish their current membership criteria for the Officers' Wives Club to give even the appearance of pressuring authorized MWR patrons to participate in the MWR program.

12.  An HSC IG assistance visit was completed at the MEDDAC, Redstone Arsenal, during the period 5-7 January 1993.  The purpose of the visit, as directed by the HSC Commander (a major general) was two-fold.  First, the HSC IG conducted assessments of the command climate and morale of the MEDDAC through individual interviews and group discussion.  Second, the HSC Psychiatry consultant conducted a clinical evaluation of the applicant with a Clinical Psychologist.  When arrangements for the visit were made, the applicant was advised that the Commander, HSC, had received a complaint from a member of his staff questioning his mental competence.  During the IG assistance visit, numerous complaints were made about the applicant, his policies, billeting conditions, the Army Physical Readiness Test, needed improvements, recognition of employees (military and civilian), poor leadership and management, lack of support, morale being the worst the employees had experienced, the TQM program, medical efficiency, etc.

13.  On 8 January 1993, a memorandum was sent to the Commander, HSC, from the HSC IG.  It indicated that a request was sent to the IG to investigate the mental competence of the applicant; that the Commander, HSC, directed that a team from HSC visit Fox Army Community Hospital (FACH) from 5-7 January 1993 to evaluate the command climate and to determine the commander's fitness for duty; and that the purpose of the report was to summarize and assess the applicant's leadership and command style and to comment on the command climate he had created within his organization.  The report was unfavorable.

14.  The applicant indicates in his supporting documentation that he advised the Commander, Army Missile Command (his senior rater on the contested OER), on 4 January 1993 of an upcoming Army Times article regarding the Officers’ Wives Club issue, and that the Army Times was released on 
12 January 1993.  (Note:  The Army Times was actually dated 18 January 1993.  During the testimony before the Board, the applicant’s counsel stated that he verified with the Army Times that it was released on 12 January 1993.)

15.  The applicant’s wife, during testimony before the Board, indicated that she was permitted to join the Officers’ Wives Club on 13 January 1993.

16.  On 14 January 1993, the Commander, HSC, advised the applicant that he was relieving him of command of the MEDDAC, Redstone Arsenal; that, from 5-7 January 1993, the IG, HSC, conducted a visit to Redstone Arsenal to assess the command climate of his organization; that the report concluded that the applicant's leadership and command style were incompatible with the standards established by the Army; that the applicant's lack of a clear cut and realistic vision of his organizational goals as they pertained to Gateway to Care, the Business Plan, TQM, and a lack of an effective utilization program contributed to his decision; that, in addition, the applicant had failed to instill a degree of trust, confidence, and sense of responsibility in his subordinates expected of an officer in command; that there was a lack of teamwork due to the failure of the applicant to recognize the capabilities and limitations of his organization; and that he had lost confidence in the applicant's ability to command the MEDDAC.  (Note:  A comparison of the relief for cause action and the rater’s comments on the relief for cause OER are strikingly similar.)

17.  On 5 February 1993, TIG (a lieutenant general), DA (DAIG), advised the Commander, HSC, that approval was granted for the HSC IG's reports to be used as the basis for adverse action; that approval was limited to those records compiled as a result of an investigation and assistance visit to Redstone Arsenal and FACH during 5-7 January 1993; and that further release of those records or the information therein was subject to the provisions of chapter 3, Army Regulation 20-1.

18.  On 5 February 1993, the Commander, HSC, in response to the applicant's 23 January 1993 letter, advised the applicant that he found that the applicant failed to instill a degree of trust, confidence, and sense of responsibility in his subordinates expected of an officer in command; that the applicant's leadership and command style had resulted in total nonsupport for him as commander of FACH; that the channels of communication between the applicant and his staff were strained and broken; that the morale in his hospital was the worst that employees had ever experienced; that command was a special trust; that leadership is not negotiable and along with the privileges of command go the responsibilities of command; that he held the applicant personally responsible for failing to establish a command climate of teamwork, trust, and confidence; and that his decision to relieve the applicant was final and was not open to public debate.

19.  On 16 February 1993, the contested OER was referred to the applicant by the Commander, Army Missile Command, Redstone Arsenal (a major general).

20.  On 17 February 1993, the DAIG acknowledged receipt of the applicant's 1 February 1993 letter to the HSC, which requested a copy of the IG records.  He was advised that they had a substantial backlog of Army IG Freedom of Information Act (FOIA) requests to be processed, and that they would process his request as soon as possible.

21.  On 3 March 1993, the applicant submitted a statement regarding the referred OER.  He stated, in pertinent part, that neither his rater nor his senior rater were directly involved in the process leading to his relief from command; that they were not capable of making an accurate evaluation of his performance; that the conclusion and allegations presented in his OER were vague, unsubstantiated, and largely false; that he never had been presented with the specific charges or the evidence which supposedly led to his relief from command; that he had never been given the opportunity to rebut the charges since they were unknown to him; that his request for information through the FOIA had not been honored; that his request for a Board of Inquiry had not been addressed; that the refusal of HSC to substantiate their vague charges was understandable only in light of their retaliation for his support of his wife's successful efforts with the Redstone Arsenal's Officers' Wives Club to accept her as a member and change their rule regarding the requirement that their husbands be members of the Officers’ Club; that an article in the Army Times describing her efforts was circulated on 12 January 1993, just 2 days prior to his relief from command; that her efforts were well known at Redstone Arsenal and HSC prior to that article; and that, in the absence of any other reasonable, accurate, and substantiated evidence, it was hard to believe that HSC would take such a drastic step against such a well qualified and experienced commander for any other reason.  He also stated his accomplishments and his policies.

22.  Subsequently, The Surgeon General (TSG) (a lieutenant general), DA, made an additional review of the referenced OER.  He indicated that the OER was complete and correct as written and required no further comment from him.

23.  On 27 May 1993, the DAIG responded to the applicant's letter of 1 February 1993, which requested copies of the DAIG records.  He was furnished part of the requested records which were releasable, and the remainder of his request was denied in part by the Acting TIG (a major general).

24.  On 8 December 1993, the Office of the General Counsel, DA, denied the applicant's appeal to the partial denial by the DAIG of his request for records under the FOIA and the Privacy Act.

25.  On 23 March 1994, the Deputy Chief of Staff for Personnel (DCSPER) (a lieutenant general) advised the applicant that Congress had mandated a smaller Army to meet the changing threat we now face and will face in the foreseeable future; that, unfortunately, this reduction required the early retirement of some of our most experienced and professional officers; that these most painful decisions were made very carefully to ensure officers affected were treated fairly and with the dignity they deserved as a result of their contributions to the Army; that the applicant had been selected for mandatory early retirement under sections 638 and 638a, title 10, U.S. Code (USC); and that the applicant's retirement date would be 31 August 1994, unless he voluntarily selected an earlier date, if eligible.

26.  A statement, dated 7 November 1994, from the Treasurer, FACH, indicated that, unlike most physicians, the applicant had unusual insight into the business operations and computer applications to the treasurer's office; that the applicant took time to listen to their problems and was very supportive of them in obtaining additional personnel to run their shop when their mission expanded; that they were one of the first hospitals in the HSC to develop a successful program for third party outpatient billing of insurance companies in order to defray the ever expanding cost of medical care with their limited budget; that, although some of the clinical departments initially resented the extra efforts required to implement the program, they gradually made it a success; that the applicant took a great deal of interest in the program, helped coordinate the activities of the various activities, and provided useful suggestions to computerize the data base and billing process; and that the applicant always appeared friendly, fair, and concerned with improving patient care.

27.  A statement, dated 30 November 1994, from the former Chief of Pharmacy, FACH, indicated that the applicant was extremely helpful in providing guidance and support during times of reduced budgets and increased patient demands; that the applicant was the prime mover in designing and advising pharmacy systems for improving efficiency and providing maximum patient services; that, during the applicant's tenure, they replaced the pharmacy dispensing system with a multiple dispensing system enabling three pharmacists to dispense drugs simultaneously, reducing the waiting times from 1 to 2 hours during peak demand to an average of 5 minutes during peak demand; that they upgraded their computerized inventory and ordering system to enable them to monitor costs and reduce out of stock items to virtually zero; that they initiated a system with the Veterans Administration hospital in Birmingham to coordinate drug purchases in order to reduce costs; that the efforts of the pharmacy and its oversight committee resulted in a 20 percent reduction in drug costs, enabling them to meet new budgetary guidelines from their parent organization; that the efforts to improve service and improve efficiency were directly the result of the applicant's initiative and the tireless efforts of the pharmacy staff; that it was a pleasure to work with such a capable and energetic commander; that the applicant's understanding of business and administration was most exceptional for a physician; that the applicant had been always helpful to them and completely dedicated to patient care; and that the applicant is a gentlemen of sterling character and utmost integrity.

28.  A statement, dated 8 December 1994, from the Chief, Coordinate Care Division, FACH, who served during the applicant's stay at Redstone Arsenal indicated, in pertinent part, that the applicant was a firm supporter of the TQM philosophy; that the applicant always allowed employees to attend several training courses (mission permitting) and never refused any implementation that was both beneficial to the patient and the medical center; that the applicant's undue support for the coordinated care program resulted in many savings; that the applicant allowed many partnership agreements to enter the medical center to save the Government health care costs; that many physicians were reluctant to the applicant because he wanted clinics to stay open longer and even work Saturday clinics; that it was apparent that there was no support from the Chief of Staff and the clinical areas; and that he felt that this was not a fair consideration to the applicant.

29.  On 4 April 1995, the DODIG responded to the counsel's letter of 24 January 1995 on behalf of the applicant.  The DODIG advised him that they had conducted a preliminary review of the matter under the provisions of section 1034 of title 10, USC, and determined that the applicant's complaint was untimely under the statute; that the statute did not require the DODIG to conduct an investigation of allegations of reprisal when the personnel actions at issue were not reported within 60 days of the military member becoming aware of their occurrence; that, while they did not rigidly adhere to the 60 day parameter, their ability to investigate those cases was substantially hindered by the passage of time; that the applicant alleged that his relief for cause on 14 January 1993 and the relief for cause OER on 1 February 1993 were in retaliation for his various communications to members of Congress and IG's in early 1992; that the applicant believed that his selection on 
23 March 1994 for early retirement resulted from the personnel actions surrounding his relief; that, however, 2 years had elapsed since the relief actions and approximately 1 year had elapsed since his selection for early retirement; that, given the nature of the alleged reprisals, the 2-year intervening period of time and witnesses' ability to recall specific details, particularly with respect to the motives of management, they believed the facts at issue in the applicant's case would likely be unresolved by further investigation; that they verified that a 11 December 1992 letter to the HSC IG from one of the applicant's subordinates prompted the HSC IG assessment of the command climate; that the subordinate cited as cause for concern frequent memory lapses and inconsistencies in behavior on the part of the applicant and that, as a result, the professional staff experienced strained relationships, ineffectiveness, and poor morale; that they noted that the initiation of the HSC IG assessment occurred shortly after the command advisory of 22 December 1991 concerning officer club membership; that, however, the actual impetus for the HSC IG assessment was the 11 December 1992 letter that preceded the advisory; and that, although they determined the applicant's complaint to be untimely, the statute provides that a member or former member of the Armed Forces 
who alleges that a personnel action was taken in reprisal for a protected disclosure may request the Board to consider an application for correction of records.

30.  On 19 April 1995, the applicant's counsel wrote to the DODIG requesting that reconsideration be given to the determination that the applicant's complaint was untimely.  He indicated, in pertinent part, that the applicant, immediately after learning of the adverse results of the IG inspection and his relief for cause, made contact with DA hospital personnel and others in seeking to have the results overturned; that there were long delays in responses to his requests; that, when the responses did arrive, they were, at best, conclusive (sic); that the applicant did seek relief well within the 60-day perimeter; that, to adhere to the 60-day perimeter in this case would be unjust based on the facts as they occurred and the fact that, for the better part of 18 months, the applicant was "put on hold" due to the unresponsiveness to his requests for information; that the relief for cause should be presumed to "have been tainted" absent evidence to the contrary; that the 11 December 1992 letter to the HSC IG from one of the applicant's subordinates took place long after the applicant and his wife had been involved in their "battle" against regulations which were found to be unlawful; and to allow a career to be terminated without proper investigation of the facts goes against the long-standing traditions of professionalism and fair play in dealing with officers of the Armed Forces of our country.



31.  On 1 August 1995, the DODIG replied to the applicant's counsel's letter of 19 April 1995, which requested that they reconsider their decision of 4 April 1995 not to investigate the applicant's allegations of reprisal on the basis that his allegations were untimely.  The DODIG stated that, based on their review of the documentary evidence and interview with the applicant's subordinate, whose 11 December 1992 request prompted the HSC inspection, they found no basis to prompt them to initiate an investigation into the matters at issue or otherwise waive the 60-day filing requirement; that it is their understanding that the applicant had submitted a petition to the Board; and that the Board is the appropriate agency to consider the applicant's request for relief.

32.  On 1 September and 20 November 1995, the applicant's counsel requested that the Board act on the applicant's request for relief.  He indicated that the applicant did desire to appear before the Board, along with him as his counsel of record.

33.  Since the applicant had not exhausted his administrative remedies regarding his contested OER under Army Regulation 623-105, his case was sent to the Officer Special Review Board (OSRB) in the Office of the DCSPER.  The OSRB prepared a Case Summary which provides the rationale for denying his request for removal of the contested OER.  The Case Summary indicates that the rating officers and the officer who directed the relief on the dates indicated were contacted by the OSRB.

34.  The Commander, HSC (now retired), indicated to the OSRB that he was responsible for 38 hospitals; that he maintained "report cards" on all of them and their commanders; that, in his opinion, the applicant was consistently on the bottom of the list for well over a year; that, when a complaint was received, he dispatched his IG to make an assessment; that a psychological testing of the commander was conducted because the nature of the complaint had to do with leadership style, although he could not remember the specifics involved; that the IG results galvanized him into action; that he was convinced that the command (the applicant's organization) had lost confidence in the applicant's ability to command; that his decision to relieve the applicant was based on all previous reports and the IG report; that, when the Army Times article came out, he agonized over the contemplated relief due to the proximity of the two events and the linkages that some might erroneously make; that, after consulting with TSG, he decided to conduct the relief because he feared that the command was coming to a grinding halt; that, as for the applicant's crusade over the 
Officers' Wives Club membership criteria, he could handle idiosyncrasies; and that his concern was that the applicant did not hack it as a commander.

35.  The rater indicated to the OSRB that he was physically separated from the applicant and Redstone Arsenal; that the applicant's controversy with the Officers' Wives Club was not an issue with him; that the relief was directed by the Commander of HSC; that he stood by his rating, reaffirming that the Officers' Wives Club issue had no bearing on his evaluation; and that he was personally concerned that the applicant had lost the confidence of his subordinates and could no longer effectively command.

36.  The senior rater indicated to the OSRB that the relief for cause had absolutely nothing to do with the Officers' Wives Club controversy which, in itself, was a tempest in a teapot; and that the timing of the Army Times article and the relief directed by the HSC Commander was coincidental.

37.  On 4 December 1995, the OSRB opined that sufficient evidence was not found in this case to warrant deletion of the report.  It recommended that the application, as it pertains to the contested OER, be denied.

38.  The applicant appeared before this Board with counsel. Four individuals testified on the applicant’s behalf, who refuted the basis for the applicant’s relief.  One individual testified that he overheard conversations between officers after the IG investigation and before 14 January 1993 (the date the applicant was relieved) that the applicant was going to be relieved; that the applicant wasn’t going to be around; that the applicant was not going to be in charge anymore; and that they felt that it was really as a result of what had happened at the Officers’ Wives Club.  The applicant testified and basically reiterated those contentions which he presented in his appeal to this Board.  He indicated that he wanted to regain his good reputation and his honor, and that he wanted to serve until age 62.  Additional details and pertinent facts are contained in a verbatim transcript of the Board proceedings which accompanies the original copy of these proceedings.

39.  A staff member of the Board was informally advised by the authorities at the Total Army Personnel Command that the applicant’s specialty 60B (Nuclear Medicine) is “right on” for all grades.  It is not understrength or overstrength.



40.  Army Regulation 20-1, at paragraph 3-3, provides, in pertinent part, that IG records will not be used as the basis for adverse action against individuals by directing authorities or commanders except when specifically authorized by the Secretary of the Army, the Chief of Staff, or TIG.  Requests for such use will be submitted to TIG.

41.  Army Regulation 600-20, at paragraph 2-15, provides, in pertinent part, that the relief of an individual for cause is one of the most serious steps taken.  It is preceded with formal counseling by the commander or supervisor unless such action is not deemed appropriate under the circumstances.

42.  Army Regulation 623-105 establishes the policies and procedures for the Officer Evaluation Reporting System.  Paragraph 5-18 provides that a report is required when an officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty.  

43.  Army Regulation 635-100, at paragraph 4-28, provides, in pertinent part, that each officer of the RA who holds the grade of colonel, has served at least 4 years of active duty in that grade, and is not on a list of officers recommended for promotion, may be considered for early retirement by a duly appointed board of officers.  An officer in the grade of colonel whose retirement is so recommended and is approved by the Secretary of the Army shall be retired (under any provision of retirement law which he or she is eligible) on the date requested by the officer and approved by the Secretary of the Army but not later than the first day of the 7th calendar month beginning after the month the Secretary of the Army approves the report of the board which recommended the officer for early retirement.

44.  The DOD Directive Number 7050.6, dated 20 November 1989, covered the Military Whistleblower Protection provisions (10 USC 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 the 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.) Also, it indicates under the responsibilities for the DODIG that no investigation is required when such allegation is submitted more than 60 days after the military member became aware of the personnel action that is the subject of the allegation.

CONCLUSIONS:

1.  The Board notes that the DODIG did not conduct an investigation of the applicant’s allegations of reprisal since it determined that his complaint was untimely under title 10, USC, section 1034, in that the personnel actions at issue were not reported within 60 days of his becoming aware of their occurrence, and that the DODIG found no basis to waive the 60-day filing requirement.  Since the applicant’s allegations were not investigated by the DODIG, the applicant is not entitled to the expedited processing and other special protection afforded to Whistleblowers under the DOD Directive 7050.6 or title 10, USC, section 1034.  Accordingly, his case was considered by this Board, not as a whistleblower case, but as any other application submitted to the Board alleging error or injustice, as provided by title 10, USC, section 1552.

2.  After their arrival at Redstone Arsenal, the applicant and his wife challenged the prerequisite that he be a member of the Officers’ Club before his wife could join the Officers’ Wives Club.  On 28 December 1992, after receipt of the 1 December 1992 message from the Army Community and Family Support Center, the Commander, Army Missile Command, Redstone Arsenal (the senior rater on the contested OER), terminated the requirement that Officers’ Club membership be a prerequisite to membership in the Officers’ Wives Club.

3.  Based on a complaint from a member of the applicant’s staff, dated 11 December 1992, the Commander, HSC, directed that an IG investigation be conducted, which was done from 
5 through 7 January 1993.  The IG report was unfavorable towards the applicant.  Therefore, approval was obtained from the TIG for the HSC IG’s reports to be used as the basis for adverse action.

4.  The Board notes that the Commander, HSC, advised the OSRB that, based on prior reports and the IG report, he was convinced that the applicant’s command had lost confidence in the applicant’s ability to command; that, after 
consulting with TSG, he decided to conduct the relief; and that his concern was that the applicant did not hack it as a commander.

5.  Notwithstanding the foregoing and in view of the testimony presented, the Board concludes that the applicant’s relief for cause of command and the relief for cause OER covering the period 28 July 1992 through 14 January 1993 were unjust since it appears that they also were based on the applicant’s communications to members of Congress, IG, and senior Army officials regarding the MWR programs (Officers’ Club/Officers’ Wives Club).

6.  Although the applicant had a total of five (which includes the contested OER) below center of mass OER’s, the Board is convinced that the relief for cause OER and the relief for cause of command guaranteed his selection for mandatory early retirement.  In other words, if the contested OER and the relief for cause of command had not been in his file, it is highly doubtful that he would have been selected for early retirement.  Accordingly, it would be just and appropriate to void his release from active duty on 31 August 1994 and his placement on the retired list on 
1 September 1994.

7.  Considering the time required to effect this action, which well may exceed 29 August 1996, when he will reach the mandatory retirement age of 62, the Board concludes that it only would be appropriate to show that the applicant continued on active duty from 31 August 1994 through 31 August 1996, with entitlement to pay and allowances, and that he be placed on the retired list effective 1 September 1996.

8.  In view of the foregoing, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

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

	a.  by removing from the Official Military Personnel File of the individual concerned the OER covering the period 28 July 1992 through 14 January 1993 and all documents related thereto;
	b.  by placing an appropriate nonprejudicial statement explaining the absence of the aforementioned evaluation report in his records;

	c.  by removing the relief for cause of command action and all documents related thereto;

	d.  by showing that the action releasing him from active duty on 31 August 1994 is void and of no force or effect;

	e.  by showing that the action placing him on the retired list on 1 September 1994 is void and of no force or effect;

	f.  by showing that he continued on active duty from 31 August 1994, with entitlement to all pay and allowances;

	g.  by showing that he is/was released from active duty, in pay grade O-6, on 31 August 1996, under Army Regulation 635-100, chapter 4 (Retirement); and

	h.  by showing that he is/was placed on the retired list, in pay grade O-6, on 1 September 1996.

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

3.  That in accordance with paragraph 21e, Army Regulation 15-185, following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing.




		                           
	        JAMES C. HISE
	        CHAIRPERSON