APPLICANT REQUESTS:  In effect, that his removal from the sergeant (E-5) promotion list and reduction from the rank of specialist (E-4) to private first class (E-3) be voided and that he be promoted to sergeant with all back pay and allowances.

APPLICANT STATES:  In effect, that he was reprised against in violation of the Military Whistleblower Protection Act because he complained to the 94th Army Reserve Command (ARCOM) Inspector General (IG) about unauthorized, unlawful, and unsafe use of smoke grenades during unit training in 1992, and of the use of outdated intravenous (IV) solution on soldiers during the same training period.  He notes his name was removed from the E-5 promotion list and he was reduced to pay grade E-3 as a result of filing those complaints.

EVIDENCE OF RECORD:  The applicant's military records show:

He entered active duty in 1969 and was promoted to pay grade E-4 in 1970.  He was serving in pay grade E-4 at the time of his release from active duty in 1976.  Throughout his active service he performed duties in the medical field.

In June 1977 he entered the California Army National Guard where he remained until August 1983 when he was discharged, in pay grade E-4, under honorable conditions.  He subsequently entered the Army Reserve and was assigned as a medical specialist with the 187th Support Battalion in Lawrence, Massachusetts.

As a result of his “tireless support to the infantry soldiers of 3d Battalion, 35th Infantry during [exercise] Northern Viking” in 1989, he was awarded an Army Achievement Medal.  In spite of the fact that he was dis-enrolled from a Primary Leadership Development Course in March 1992 for academic reasons his name was placed on his organization’s E-5 promotion recommendation list in April 1992.

The applicant attended annual training with his unit during the period 8 August through 22 August 1992.  On 21 August 1992 the unit commander of a engineer company, which was participating in the same annual training, noted his displeasure with the duty performance of the applicant following an incident between the applicant and an injured soldier.  The engineer unit commander indicated he was concerned the applicant’s “unprofessional” actions were “possibly detrimental to the mission” of the medical unit and that had any additional medical emergencies occurred he would have sought treatment at another facility.  A 
21 August 1992 statement rendered by a senior medical sergeant in the applicant’s unit (a sergeant first class) confirmed the engineer unit’s request that the applicant be removed from his duties and two other soldiers confirmed the applicant’s behavior in dealing with the injured engineer soldier.

According to a 27 May 1994 statement, issued by the applicant’s legal counsel, “various and sundry complaints against [the applicant] arose out of AT [annual training] 1992....”  However, none of those statements were included with the application or contained in a copy of the applicant’s military personnel file which was also provided by the applicant.

On 1 September 1992 the applicant apparently initiated a written complaint to the 94th Army Reserve Command Inspector General (ARCOM IG) “concerning actions taken by [his] unit that resulted in [his] reduction in grade to Private First Class/E-3.”  The applicant’s 1 September 1992 letter is not included in the record but other documents note “the matters [he] presented [in his complaint] are under the jurisdiction of the US Army Health Services Command.”  By 5 April 1993 the 97th ARCOM IG had apparently consolidated other complaints raised by the applicant during the interceding period into one response.  In his response he concluded, with one exception, that none of the applicant’s allegations, (including improper use of the chain of command, deficiencies documenting his duty performance, retaliation by various command elements, the negative impact of organizational “clicks”, selective enforcement of various regulatory guidance, improprieties in the assignment of promotion points, and failure of his battalion commander to respond to a request for an Article 138 hearing) were substantiated.  The only complaint substantiated by the ARCOM IG involved the “detonation of a smoke grenade(s)” during the August 1992 annual training.  The IG noted the smoke grenade incident, which involved the questionable denotation of smoke grenades in the unit’s area, had in fact occurred and was being referred to the appropriate chain of command.  The IG specifically noted that “sufficient evidence exists in performance documentation to preclude the notion that [the reduction] action was one of retaliation.”

On 19 September 1992 the applicant’s unit commander notified him that he was initiating action to reduce him from E-4 to E-3 because of his “demonstrated inability to perform the duties and responsibilities of [his] grade and MOS.”  The applicant submitted a rebuttal, dated 4 October 1992, in which he denied the allegations against him, indicated he had never been counseled by his first line supervisor regarding his inefficiency, questions the integrity and motivation of his accusers and notes that the action to reduce him for inefficiency “is in retaliation for [his] whistle blowing.”  The applicant states he submitted his rebuttal on 19 October 1992 and the effective date of the reduction, 20 October 1992, was an indication his unit commander did not review his rebuttal statement.  He was reduced to pay grade E-3 under the provision of paragraph 
7-10, Army Regulation 140-158.

On 3 October 1993 the applicant requested an AR 15-6 investigation be initiated.  A copy of that request is not in available files.  However, a 19 September 1993 report, rendered by the 15-6 investigating officer “to determine the facts surrounding the possible misuse of pyrotechnics by Company “B” (medical), 187th Support Battalion, during Annual Training 1992” concluded “there was gross negligence by the company commander...because he had full knowledge of the events that were to take place and he made no attempt to stop the acts which endangered the health and welfare of the troop....”  The investigating officer recommended the unit commander receive a letter of admonishment and that several other soldiers be given company level letters of reprimand. The investigation included interviews with 19 different soldiers, including the applicant.

A subsequent AR 15-6 investigation, completed on 12 January 1994, concluded the applicant’s allegation that his reduction was retaliatory in nature were unsubstantiated and noted the applicant had “made accusations toward other soldiers which were unfounded and in fact were misrepresented, distorted, and untrue.”  This investigation included interviews with 11 individuals, including the applicant.

During this entire process the applicant also attempted to seek redress by filing a complaint against his unit commander under the provisions of Article 138, UCMJ and Army Regulation 27-10.  By June 1994 the applicant was informed, on behalf of the Secretary of the Army, that his command’s determination not to pursue the Article 138 complaint was appropriate.

In January 1994, when the 187th Support Battalion was undergoing deactivation, the applicant was transferred to the 309th Field Hospital.  While at the Field Hospital the applicant initiated several protected communications under the Military Whistleblower Protection Act, concerning his involuntary referral for psychiatric evaluation.  In March 1996 the DA IG concluded that while his unit commander may have improperly referred the applicant for mental health evaluation, there was no evidence to substantiate the action was one of reprisal.

The applicant was promoted to pay grade E-4 on 1 April 1994 while assigned to the 309th Field Hospital.  On 31 August 1995 the applicant was notified he had completed the required years of service to be eligible for retired pay at age 60.  He was still serving in pay grade E-4 at the time of notification.

Army Regulation 140-158, paragraph 7-10, states that Inefficiency is defined as a demonstration by an individual of distinctive characteristics which show the inability to perform the duties and responsibilities of the grade and MOS.  It may also include any act or conduct which clearly shows the soldier lacks those abilities and qualities required and expected of a person of that grade and experience.  A soldier who has served in the same unit for at least 90 days may be reduced one grade for inefficiency.  The commander reducing the soldier will inform the soldier in writing of the action contemplated and reasons.  The soldier will acknowledge receipt of the letter and may submit any pertinent matters in rebuttal.  A reduction board is not required for individuals in pay grade E-4 or below.  Reductions for individuals in pay grade E-2 through E-4 may be accomplished by company, troop, battery and separate detachment commanders.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  While the applicant maintains he was reduced as a result of reprisals for raising issues of misconduct and improper use of medical equipment during annual training in August 1992 there is no evidence, other than his own contention that such was the case.  His complaints were raised to the highest level within the military, reviewed by a multitude of individuals who had no stake in the process and not one of the reviews concluded his reduction was improper.

2.  The evidence indicates the applicant’s reduction for inefficiency was conducted in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  While the applicant has chosen to submit only selected statements associated with his reduction, documents in the records tend to indicate the commander’s decision was based on several statements which documented the applicant’s inefficiency and not only the concern raised by the engineer unit commander on 21 August 1992.

3.  The Board notes the applicant was reduced for inefficiency and yet he has not provided a single statement, now, nor during any of his actions seeking redress, which contradicts the basis for the unit commander’s decision.

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 applicant’s 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