2. The applicant requests that her military records be corrected by deleting an officer evaluation report (OER) for the period 920616-920914 from her OMPF (Official Military Personnel File). She states that the OER was given in reprisal for a complaint which she made to her installation Inspector General (IG) and to her United States Senator. Following a Department of Defense IG(DoDIG) investigation, the applicant was referred to this Board under 10 USC 1034, Military Whistleblower Protection Act.
3. The applicant is an active duty captain in the Corps of Engineers. At the time of the contested OER, she was a first lieutenant serving as a Headquarters Service Company (HSC) executive officer (XO) in an Engineer battalion. In this position, she received a strong OER for her first 6 months preceding the contested report.
4. With the arrival of a new battalion commander in July 1992, several lieutenant duty assignments were changed in order to implement a new professional development system. The applicant was told on or about 22 July 1992 that she would be reassigned to a special project officer position as the full-time officer-in-charge (OIC) of Operation Santa Claus, a high visibility program whereby the installation works with the civilian community to provide Christmas presents to needy children. Although a Staff Judge Advocate (SJA) review of the proposed project found that certain administrative requirements needed to be accomplished in order to make the project comply with law and regulations, those requirements had not been met. The applicant pointed out to the battalion commander that the project was not in compliance with legal requirements and further pointed out that it was illegal to assign her to it as a full-time project officer [implied was the notion that she could continue to serve as the XO while doing Operation Santa Claus part-time].
5. The applicant was removed from her XO position and given exclusive duties as the OIC of Operation Santa Claus. Under protest, she performed these duties beginning on or about 1 August 1992. On 6 August 1992, she filed an IG Action Request (IGAR) complaining about her treatment and the special projects assignment. In mid September 1992, she was removed from her duties as Operation Santa Claus OIC and was given odd jobs in and around the battalion pending reassignment to the installation Directorate of Engineering and Housing. On or about 8 October 1992, she received the contested OER with a thru date of 14 September 1992. The report was adverse; the senior rater commented in Part VIIb that she could be . . . counted on to complete missions that she believes are worthwhile. This appears to be a veiled reference to her performance on Operation Santa Claus. The report was referred to her for comment.
6. The applicant appealed the contested OER to the Officer Special Review Board (OSRB). Following a review of her case, the OSRB denied the appeal.
7. As a result of her IGAR on 6 August 1992, a DoDIG investigation was conducted which determined that the applicant had been reprised against for making a protected disclosure to the IG and to her US Senator. The reprisal took the form of the contested OER.
8. The DoD Directive Number 7050.6, dated 3 September 1992, implements the Military Whistleblower Protection Act. Under this directive, 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 any 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 the same; and that no employee or member of the Armed Forces may take, or threaten to take, an unfavorable personnel action in reprisal against any member of the Armed Forces for so doing. Army Regulation 20-1 provides Department of the Army implementation of this policy.
CONCLUSIONS:
1. The evidence of record shows that the applicant made protective disclosures; that an unfavorable personnel action [the contested OER] was taken against her; and that the officials responsible for taking the unfavorable personnel action were aware of the protected disclosures. Further, in light of her previously strong OER as a company XO, it appears that the contested OER was a direct result of the applicants protected disclosures.
2. In view of the foregoing, it would be just to remove the contested OER from the applicants OMPF, as well as any and all references thereto (i.e., previous appeals), and to declare the period nonrated time.
3. In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicants records as indicated below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected:
a. by removing the contested OER for the period 920616-920914, and all other references thereto, from the OMPF of the individual concerned; and
b. by placing an appropriate, nonprejudicial statement in the records of the individual concerned explaining the absence of the aforementioned OER.
2. That in accordance with paragraph 21e, AR 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.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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