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ARMY | BCMR | CY1997 | 9711530
Original file (9711530.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, that he be reinstated with back pay and then released from active duty on his regularly scheduled expiration of service date of 30 December 1996. Also, that any adverse documentation, to include any reprimand of record, received subsequent to his filing complaints with the Office of the Inspector General (IG), be stricken from his records. He believes these actions were reprisals for filing his IG complaints and that such reprisal violates Army Regulation 600-20, paragraph. 6-8p(2) and other protections against military “Whistle-Blowers." These protections prohibit Department of the Army (DA) personnel from taking adverse action against a soldier for filing an IG complaint or seeking assistance. As such, he believes that allowing his involuntary retirement to stand would be an injustice.
APPLICANT STATES : Applicant defers to counsel.

 COUNSEL CONTENDS : In effect, that the applicant’s involuntary retirement under a National Guard Selective Early Retirement Board was forced upon him in retaliation for complaints he filed with the Office of the IG. He was not even eligible for retirement since he did not yet have 20 years of creditable active duty service. A verbal reprimand and formal counseling were given to him by the Chief of Staff for his filing of the complaints. His conduct at no time warranted either verbal reprimand nor a formal counseling. Evidence in support of the application is provided.

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

He initially enlisted in the Regular Army on 25 September 1967. He served 12 months in Vietnam. He was honorably separated on 24 September 1970. He then served with the U. S. Army Reserve and the Minnesota Army National Guard (MNARNG) and entered active duty with the MNARNG on 1 December 1977, as an Active Guard/Reserve (AGR) recruiter until his retirement. He was eligible for a 20-year active duty retirement on 29 September 1994.

On 14 May 1990, the applicant apparently made a complaint to the National Guard Bureau (NGB) IG Office about State National Guard Association sponsored life insurance programs. On 18 June 1990, he expressed a concern that his discussion with the NGB IG Office was not kept confidential.

On 7 May 1991, the applicant wrote the NGB IG Office to express his concern that they had apparently not yet completed an investigation into his subject of complaint. On 29 August 1991, the NGB IG Office responded to the applicant, stating their legal advisors reviewed the subject of the complaint and considered the case closed, unless specific illegalities were discovered.

On 15 April 1992, the applicant was notified that he had been recommended for continuation in the AGR program.

Apparently some time in 1992, the MNARNG established a policy to separate Title 32 AGRs, pay grade E-7 through E-9 at 20 years of active federal service (AFS). (Title 32 AGRs who are officers, warrant officers or enlisted personnel E-6 and below must be separated upon completion of 20 years of AFS; AGRs in grades E-7, E-8 and E-9 need not be separated until completion of 24, 27 and 30 years of AFS respectively). In a memo date-stamped 6 January 1993, the NGB Office of the Judge Advocate reviewed this policy and found it did not appear to be illegal.

In September 1993, the applicant wrote an information paper for the Chief of Staff expressing a list of concerns with the management of the MNARNG Recruiting and Retention Detachment. On 1 October 1993, he requested IG action on one of those concerns.

On 5 October 1993, the applicant was recommended for continued retention in a unit of the Army National Guard.

On 14 October 1993, the applicant was reassigned to a Recruiting Operations Sergeants Major position in the MNARNG.

On 25 October 1993, the MNARNG distributed a memorandum stating that all soldiers, regardless of rank, will be separated upon reaching 20 years AFS.

On 4 November 1993, a general counseling form noted that the applicant had been counseled by the chief of staff concerning indicators that the applicant did not support the senior leadership of the MNARNG, its command policy or command decisions. The summary of counseling noted the applicant’s projected retirement date was established at 30 September 1994, which date the applicant apparently Xd out. The applicant non-concurred in the counseling but did not indicate the reasons for noncurrence.

On 8 February 1994, the NGB informed all State Adjutant Generals that the Fiscal Year (FY) 94 Defense Authorization Act required a decrement of 506 (Minnesota’s share to be 58) to the ARNG AGR national end strength with a similar reduction anticipated in FY 1995. The drawdown plan would be a 5-step process. Step 1 - conduct job fairs; Step 2 - conduct a Special Tour Continuation Board (STCB) to consider AGR enlisted in excess grades/skills who are 20-year active duty retirement eligible; Step 3 - offer Temporary Early Retirement Authority, Voluntary Separation Incentive/Special Separation Benefit to excess grades/skills, based on availability of funds. Steps 4 and 5 at the time were pending Secretary of the Army approval.

On 17 February 1994, NGB clarified Step 2 to read “…AGR enlisted soldiers who are 20 year active duty retirement eligible.”

Step 1, a job fair, was held on 15 and 16 March 1994. Out of 58 excess personnel, 29 found a suitable transfer.

On 10 June 1994, the applicant was notified that an STCB considered him for retention in the AGR program and determined that he should be separated from the program on 30 September 1994. The notification stated that the board’s action was not based on performance and that he was, in all respects, an outstanding non-commissioned officer. Given the State’s current strength posture, it was in the best interests of the MNARNG to separate all soldiers who would be eligible for an active duty retirement by 30 September 1994.

(Two E-9s in the MNARNG were eligible for consideration by this STCB, the applicant and one other, and both were approved for separation with a separation date of 30 September 1994. Of the 12 States that were authorized to hold an STCB, 3 others also separated all of their 20-year retirement eligible soldiers.)

On 24 and 27 June 1994, the applicant submitted to The Adjutant General rebuttals to his selection for separation. He stated he believed the result of the STCB was the means to an end, a carefully orchestrated conspiracy, directed by his chief of staff, and carried out by him and other members of his staff. He believed it was a direct reprisal for his addressing soldier concerns. He believed he was not adequately represented during the conduct of the STCB because there was no AGR member present. He believed that he was not eligible for consideration by the STCB because he did not yet have 20 years AFS.

On 18 July 1994, he submitted a rebuttal to the Acting Chief, NGB. He mentioned the same concerns outlined above, plus he stated that the downsizing did not apply to his Career Management Field (CMF) of 00E, Recruiting/Retention.

On 11 August 1994, the NGB replied to the applicant. It stated the Army National Guard was required to reduce the AGR Program throughout FY 99. States were authorized to conduct STCBs for AGR soldiers who had achieved, or would have achieved, 20 years AFS in FY 94. That population was targeted based on their ability to receive a retirement annuity immediately after release. The Assistant Secretary of the Army for Manpower and Reserve Affairs fully supported that part of the drawdown plan. That part of the drawdown program did not require the state to target specific CMFs nor did it require an AGR member be part of the STCB.

On 11 August 1994, the applicant filed a complaint with the NGB IG Office outlining the above concerns, plus stating that the other E-9 who was considered by the STCB was given another, created-just-for-him, full-time position; that his position was not eliminated; and that an M-Day soldier who is close to his mandatory retirement age was being retained.
On 18 August 1994, the applicant wrote to the Defense Hotline outlining all of his concerns expressed over the past few years.

On 30 September 1994, the applicant was retired, in pay grade E-9, after completing 20 years and 7 days of creditable active federal service.

On 30 April 1996, the DoD IG responded to the applicant’s allegations that his chief of staff counseled him and he was involuntarily retired in reprisal for communicating with an Inspector General. They found the allegations were not substantiated.

In considering the allegation of reprisal, four issues must be addressed: Did the complainant make a disclosure protected by statute? Subsequently, was an unfavorable personnel action taken or was a favorable action withheld following the protected disclosure? Did the official(s) responsible for taking or withholding the personnel action know about the protected disclosure? Does the evidence establish that the personnel action would have been taken if the protected disclosure had not been made?

The DoD IG found that the applicant did make two protected disclosures to an IG; that an unfavorable personnel action was taken following the protected disclosure (the counseling statement and the involuntary retirement recommendation); that one of the three members of the STCB knew of the protected disclosure; but that the personnel actions would have been taken anyway if the protected disclosure had not been made.
The DoD IG found that the chief of staff’s counseling of the applicant was not issued in reprisal or intended to restrict him from contacting an IG. They concluded the counseling session could be perceived as an attempt to express displeasure with the applicant for not using the chain of command to address complaints and concerns.

The DoD IG found that the applicant and the other E-9 would have been selected for involuntary retirement in any case because the MNARNG had to meet the requirements of the NGB’s mandated reduction in the AGR force. One of the board members told the IG he could not justify continuing two soldiers who were eligible for 20-year retirements when other soldiers not eligible for retirements would have to be eliminated to meet the strength quota. The IG also found that the other E-9 was not placed in another, created-just-for him position. The other soldier gave sworn testimony that, through a lot of effort on his part, he found an advertised full-time Active Duty Special Work (ADSW) position with an Army Reserve program and that anyone could have competed for the position.

The NGB IG Office confirms that the MNARNG has its 20-year AFS-and-out policy still in effect in 1998.

 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:

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.

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




 Loren G. Harrell
                                                      Director

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