2.  The applicant requests correction of her military records by removing a noncommissioned officer evaluation report (NCOER) for the period covering June 1993 through May 1994.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program on 8 February 1979 for 6 years.  She served in the Regular Army from 23 February 1979 through 17 March 1982.  Subsequently, she has served in the USAR through extensions and reenlistments.  She last reenlisted in the USAR on 27 February 1995, in pay grade E-6, for 5 years. Her reenlistment document indicates that she had completed 14 years, 5 months, and 23 days active military service and 1 year, 6 months, and 27 days inactive military service.  She has performed duties as an administrative specialist, clerk typist, unit clerk, accounting specialist, program/budget NCO, chief accountant, administrative sergeant, and accounting NCO.

4.  At the time of the contested NCOER, the applicant was serving in an Active/Guard Reserve (AGR) status with a USAR unit in Mississippi as a chief accountant.

5.  The following is a record of the applicant’s available enlisted evaluation reports/NCOERs (i.e., DA Form(s) 2166-6 and DA Form(s) 2166-7):  Note that, for DA Form(s) 2166-6 only, the average score is shown with 125 being the maximum score achievable.  Also, note that, for DA Form(s) 2166-7 only, the rating system depicted below is limited to three entries:  the first entry is derived from Part Va (the rater’s rating of the NCO’s overall potential for promotion and/or service in positions of greater responsibility, expressed in Roman numerals, with “I” (Among the Best) the highest and “III” (Marginal) the lowest; and the last two entries are derived from Part Vc (the senior rater’s (SR) rating of the NCO’s overall performance) and Part Vd (the SR’s rating of the NCO’s overall potential for promotion and/or service in positions of greater responsibility) respectively, also expressed in Roman numerals, with “I through III” indicating a rating of “Successful/Superior,” “IV” indicating a rating of “Fair,” and “V” indicating a rating of “Poor.”
						 Status/		Score/
	Period	Type Report	 State	Rank	Rater/SR

Aug 81-Aug 82	Annual		 USAR/OH	SP5	119*
Aug 82-Jul 83	Annual		 USAR/OH	SP5	119*
Aug 83-Jul 84	Annual		 USAR/OH	SP5	122
Aug 84-Jul 85	Annual		 USAR/OH	SP5	 88.5**
Aug 85-Jul 86	Annual		 USAR/OH	SSG	125
Aug 86-Jul 87	Annual		 AGR/MA	SSG	125
Aug 87-May 88	Final		 AGR/MA	SSG	123.5***
Jun 88-May 89	Annual		 AGR/MA	SSG	I/I/I
Jun 89-May 90	Annual		 AGR/MA	SSG	I/I/I
Jun 90-May 91	Annual		 AGR/MA	SSG	I/I/I
Jun 91-May 92	Annual		 AGR/MS	SSG	I/II/II
Jun 92-May 93	Annual		 AGR/MS	SSG	I/II/II
Jun 93-May 94	Annual		 AGR/MS	SSG	III/III/IV****
Sep 94-Mar 95	Change of Rater AGR/MS	SSG	II/III/III
Apr 95-Mar 96	Annual		 AGR/NY	SSG	I/II/II
_________
*The rater indicated that the applicant’s attitude reflected discontent with peers when they were not performing to her level of expertise or expectation, and that the problem was kept to herself but had been uncovered in section counseling.
**The rater indicated that the applicant’s potential for increased job performance was inhibited, however, by her inability to deal with a stressful working situation effectively; that she was away from her duties often due to a variety of personal situations; that she needed to improve her self-discipline and be available for more field training if she was to advance in rank and serve as an NCO; and that she needed to demonstrate her potential on her existing position before advancing to the NCO level.  The indorser indicated that the applicant’s job performance was adversely affected by less than ideal working conditions, and that she had the potential to perform at the highest level under different working conditions.
***The rater indicated that the applicant’s profile did interfere with her duty performance.
****Contested NCOER.  In Part IV (Values/NCO Responsibilities (Rater)), the rater indicated that the applicant was not disciplined and obedient to the spirit and letter of a lawful order; that she had a problem with authority and questioned decisions by superiors; that she did not always complete given tasks and questioned reasons for having been assigned; that she was not willing to take on added tasks without supervisor direction; that she exhibited a high degree of sickness and was not mentally and physically tough; that she quit projects and went off duty at the slightest hint of illness; that her profile did not affect her ability to perform assigned duties; that she had not set a good example for junior enlisted soldiers; and that she was belligerent and outspoken in meetings and questioned authority and judgments of superiors.  The SR indicated that the applicant was the source of strife in the workplace; that she accomplished assigned tasks, but sought no additional tasks; and that she should seek additional responsibilities to increase overall duty performance.  The SR recommended that her records be submitted to the Qualitative Management Program board for review/
determination for future training/service.

5.  Documentation submitted by the applicant shows that she communicated with a Congressperson on 16 February 1994 alleging harassment, racial prejudice, and preferential treatment by members of her command; that she alleged on 6 March 1994 a series of reprisal actions began for that visit and subsequent correspondence with her Congressperson; that she submitted an Inspector General (IG) Action Request on 10 April 1994 to the IG of her command alleging that she was being harassed by members of her section and being reprised against for filing a congressional inquiry; that the IG of her command did not substantiate her allegations of harassment and reprisal; that she wrote to the Department of Defense (DOD) Hotline on 19 August 1994 alleging reprisal by members of her chain of command for talking to her Congressperson; and that, at the request of the DOD IG, an IG investigation was conducted.

6.  On 9 September 1996, the DOD IG advised the applicant that the Department of the Army (DA) IG conducted an investigation; that the investigation substantiated five of her allegations, which included the contested NCOER, and did not substantiate two of her allegations; that the DOD IG 
reviewed the report of investigation and found it adequately addressed the allegations; that it concurred with its conclusion that her chain of command could not demonstrate the adverse actions taken against her were warranted and would have occurred absent her protected disclosures; and that she could apply to this Board.

7.  A staff member of the Board was advised by the authorities at the Enlisted Special Review Board (ESRB) in the Office of the Deputy Chief of Staff for Personnel that the applicant’s appeal of the contested NCOER was denied in June 1995.  The ESRB provided the Board a copy of their Case Summary which indicated that the ESRB contacted the rater and SR for additional information; that it learned that the applicant is competent in her mission accomplishment, but has a problem with her superiors and their authority; that the report is retribution for her talking with her Congressman was unsubstantiated by any documentation; and that the applicant made no request for a Commander’s Inquiry or any other type of investigation to determine the validity or accuracy of the contested report.  The ESRB opined that the applicant’s appeal lacked merit for approval, and that she failed to meet the regulatory requirement; that she provided neither probative evidence nor a persuasive argument in support of her contentions and fell short of the standards required by Army Regulation 623-205; and that, based upon the information at hand and without evidence to the contrary, the NCOER under appeal is considered an accurate and objective appraisal of her performance and potential during the rating period.

8.  A staff member of the Board was advised by the authorities at the Full Time Support Management Directorate, U.S. Army Reserve Personnel Center (ARPERCEN), that the applicant does not have a bar to reenlistment or derogatory statements in her records maintained there.

9.  The DOD Directive Number 7050.6, dated 20 November 1989, covered the Military Whistleblower Protection provisions (title 10, U.S. Code, section 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.)

10.  Army Regulation 20-1 provides, in pertinent part, that anyone (military, DA civilian, family member, or private citizen) has the right to register complaints orally or in writing with an Army IG concerning matters of DA interest.  In exercising this right, the complainant will be free from restraint, coercion, discrimination, harassment, or reprimand.  Soldiers will be encouraged to discuss their problems or grievances first with their commanding officers, as provided in Army Regulation 600-20.  However, persons desiring to submit a complaint directly to an IG at any level, but who do not wish to discuss the matter with their commanding officer or other members of the chain of command, will be permitted to do so.  Any type of disciplinary or other adverse action taken against an individual for registering a complaint, except when fraudulently made, is prohibited.

CONCLUSIONS:

1.  The Board supports the DOD policy of unrestricted communication with Congress, the IG’s, and the various Government investigators, etc., as well as the protection from reprisal against those who make or prepare to make such communications.  When such reprisals occur, they constitute an injustice of the sort this Board was created to correct.

2.  The Board has reviewed the Case Summary from the ESRB.  It appears that the ESRB was unaware of the investigations being conducted by several IG offices when it made its decision.

3.  The evidence of record indicates that the applicant made protected communications; that an unfavorable personnel action (NCOER covering the period June 1993 through May 1994) was taken; and that the officials responsible for taking the unfavorable personnel action were aware that the applicant had made protected communications.  Further, it 
appears that the unfavorable personnel action may not have been taken if the protected communications had not been made.  Therefore, the contested NCOER should be removed from the applicant’s Official Military Personnel File.

4. The Board notes that the applicant’s records at ARPERCEN do not contain a bar to reenlistment or derogatory statements, and that she last reenlisted on 27 February 1995.  

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removing from the Official Military Personnel File of the individual concerned the NCOER covering the period June 1993 through May 1994 and all documents related thereto.

2.  That an appropriate nonprejudicial statement explaining the absence of the NCOER covering the period June 1993 through May 1994 be placed in her records.

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.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON