PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 25 February 1998
         DOCKET NUMBER: AC 97-09365

         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The following members, a quorum, were present:

Ms.	Joann H. Langston		Chairperson
Mr.	Calvin M. Fowler		Member
Ms.	Karen L. Wolff		Member

         Also present, without vote, were:

Mr.	Karl F. Schneider		Acting Director
Mr.	Jessie B. Strickland		Examiner

         The applicant and counsel if any, did not appear before the Board.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that he be granted an early retirement under the Voluntary Early Retirement Program (VERP) and that the adverse Noncommissioned Officer Evaluation Report (NCOER) covering the period from September 1995 through August 1996 be removed from his Official Military Personnel File (OMPF). As an alternative, he requests that the NCOER be removed from his OMPF, that he be given a permanent change of station award, that he be placed on the recommended list for promotion to the pay grade of E-8 and promoted with his peers, and that he receive a permanent change of station (PCS) to another location.

3. The applicant states, in effect, that while serving as the NCO in charge of a property management branch he discovered that his supervisor was mismanaging government property. When he confronted his supervisor/rater and informed him that he was not going to sign for missing property, his supervisor advised him to transfer the property to a phantom hand receipt that he (the supervisor) would be responsible for. He further states that he advised the first officer in his chain of command who just brushed him off. He continues by stating that he then voiced his concerns to the installation inspector general (IG) and to the legal assistance office. As a result, an internal management team was formed to conduct an analysis of the property management branch which determined that millions of dollars of government equipment were unaccounted for as a result of his supervisor’s mismanagement. He also states that the results of the management team’s findings were leaked to the local media and an investigation under Army Regulation 15-6 was initiated which later confirmed his allegations. Meanwhile, his rater threatened retaliation against him. He goes on to state that he was assured by the IG that nothing would happen to him; however, he was subsequently placed in an E-6 position while personnel junior to him were placed in higher position vacancies. He also states that he was again threatened by his new supervisor (a captain) and an investigation under Army Regulation 15-6 also substantiated his claims in that matter and resulted in his rater being relieved. He continues by stating that he requested to be transferred to another duty station and received orders to Fort Drum, New York. Just prior to his departure he was informed that his NCOER might not be favorable because he had involved several officers in the investigations conducted and that an officer who had not previously been in his rating chain would be his rater. He contends that the NCOER was unjustly prepared by persons not in his rating chain who conducted no form of counseling and that the report was contrary to the previous report he received in the same position and jeopardized his selection for promotion. In addition, he contends that he was unjustly denied a PCS award when he departed his duty station and that when he arrived at his new duty station there were personnel present who were aware of his whistleblowing activities. He continues by stating that his new chain of command is continuing to penalize him for his being a whistleblower; therefore, he submitted a request for early retirement under the VERP on 2 November 1996 based on the prior messages he had received indicating that no decisions would be made on requests for early retirement until 14 February 1997. However, his request was denied on the same day he submitted it with an explanation that the Department’s target had been met. Shortly thereafter the results of the E-8 promotion selection board were released and he was not selected. However, two junior NCO’s were selected for promotion in the secondary zone. He concludes by contending that he is a marked man who still fears for his life and the lives of his loved ones and believes that his career is essentially over.

4. The applicant’s military records show that after serving 11 years, 11 months, and 14 days of total prior active service, the applicant enlisted in the Regular Army in the pay grade of E-7 on 15 April 1994 for a period of 6 years.

5. During the period 3 through 28 May 1995, while the applicant was serving as the NCO in charge of the Property Management Branch of an Army Medical Center, a management review was directed to conduct an analysis of the property management branch and its maintenance of the installation property book. It determined, in effect, that deficiencies existed in all five areas reviewed that represented a potential for severe property and fiscal loss.

6. On 29 September 1995 the applicant received an NCOER covering the period from September 1994 through August 1995 evaluating him as the NCO in charge of the property management branch of an Army Medical Center. The report was in essence a maximum report and contained many favorable
comments regarding his performance and promotion potential.

7. During the period 16 October through 27 October 1995 an investigation was conducted under the provisions of Army Regulation 15-6 to further investigate the deficiencies noted by the management review team. On 14 November 1995 the investigating officer found, in effect, that the applicant’s rater lacked the leadership and necessary managerial abilities to effectively manage the property management branch. The investigating officer also found, on a positive note, that the applicant received high marks and numerous accolades for his genuine and active interest in resolving the inherent problems of the branch and that since his assignment as the NCO in charge he had made an immense difference. The investigating officer recommended that the rater be relieved of his duties as the chief of property management and that he be given a letter of admonishment for his negligence. He also recommended that a highly capable military officer or civilian be immediately assigned in the rater’s place.

8. On 23 January 1996, a military officer (a captain) was assigned to be the chief of the property management branch. In April or May 1996, a team of officers from Fort Sam Houston, Texas arrived to review logistics issues associated with property accountability and procedures. The applicant at that time communicated allegations of wrongdoing by the new assigned captain which were reported to the commanding general and resulted in an investigation being conducted under Army Regulation 15-6. The investigation partially confirmed some of the applicant’s allegations and recommended that the captain be relieved for cause, that he receive a general officer letter of reprimand, and that he be reassigned. It also recommended that the applicant receive a letter of admonishment from the garrison commander for making an official statement which appears to be a gross misrepresentation of fact, or at least a gross exaggeration of fact. It further recommended that he also be reassigned and that copies of the investigation be provided to rating officials for consideration of their performance evaluations of the applicant and his rater.

9. On 13 June 1996, the applicant filed an initial complaint with the Department of Defense (DOD) Hotline alleging that his chain of command was retaliating against him for his disclosure of wrongdoings by his supervisor.

10. On 9 October 1996 the applicant received an NCOER covering the period from September 1995 through August 1996 evaluating him as the NCO in charge of the property management division. In part IVa, under Values/NCO Responsibilities, the applicant’s rater (a major) gave the applicant “No” ratings under “Is committed to and shows a sense of pride in the unit-works as member of the team”, “Is honest and truthful in word and deed”, and “has the courage of convictions and the ability to overcome fear-stands up for and does what’s right.” His rater also gave him “excellence” and “success” ratings in all areas of part IVb and indicated that his overall potential for promotion or service in positions of greater responsibility was “Fully Capable”. The senior rater indicated that the applicant’s rater was relieved and that he (the applicant) was technically competent; however, he lacked the vital communication skills necessary for effective leadership. The NCOER indicates that the applicant was unavailable to sign the NCOER (Applicant had been transferred to Fort Drum, New York).

11. On 22 October 1996 the applicant wrote to the DOD IG requesting whistleblower protection. He alleged that he had received an adverse NCOER and was not recommended for a PCS award because of protected disclosures he made to his chain of command and an investigator during an investigation being conducted under Army Regulation 15-6. An investigation was conducted under the auspices of the Department of the Army IG which concluded that the applicant’s rater was not eligible to rate the applicant in accordance with applicable regulations and that the rater and SR improperly reprised against the applicant by rendering an adverse NCOER and failing to recommend him for a PCS award in violation of section 1034 of Title 10, Unites States Code and DOD Directive 7050.6. The IG concluded that the applicant’s allegations of reprisal for making a protected communication were substantiated. The Department of the Army IG forwarded its findings to the DOD IG and closed its case.

12. Meanwhile, on 12 November 1996, the applicant submitted a request for early retirement under the VERP in accordance with the Total Army Personnel Command (PERSCOM) message number 96-203, dated 6 September 1996. He requested his retirement be effective 1 July 1997. The PERSCOM had a target of three personnel in the applicant’s grade and specialty and received four applications. The applicant was the junior member of the four applications and his application was disapproved based on the quota having been met.

13. On 4 August 1997 the DOD IG concurred with the findings that his allegations of reprisal were substantiated and informed the applicant to apply to this Board in order to have his records corrected.

14. 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 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.)

15. 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 by 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 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 the Board was created to correct.

2. The evidence of record indicates that the applicant made protected communications; that unfavorable personnel actions (given an adverse/substandard NCOER and not recommended for a PCS award) were taken; and that officials responsible for taking the unfavorable personnel actions were aware that the applicant had made protected communications. Further, it appears that the unfavorable personnel actions may not have been taken if the protected communications had not been made. Therefore, the contested NCOER should be removed from the applicant’s OMPF.

3. Although there is no evidence to show that the applicant’s request for early retirement was denied based on his being a Whistleblower; given the circumstances in this case and due to the fact that the applicant still perceives further reprisal would be taken were he to remain on active duty, his request for early retirement under the VERP should be approved as an exception to policy.

4. In regards to the applicant’s early retirement, he should be allowed to retire under the VERP within 120 days of the decision of the Board, so as to allow him to use his accrued leave should he desire to do so.

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

RECOMMENDATION:

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

a. by removing the NCOER ending on 31 August 1996 from the OMPF of the individual concerned; and

b. by showing that the applicant was granted early retirement under the VERP within 120 days of the decision of this Board.

BOARD VOTE:

KW JHL CMF GRANT AS STATED IN RECOMMENDATION

GRANT FORMAL HEARING

DENY APPLICATION




                 
                  CHAIRPERSON