MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 August 2002
         DOCKET NUMBER: AR2001064682

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Paul A. Petty		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Lester Echols		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         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)

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APPLICANT REQUESTS: In effect, that he be restored to an Active/Guard Reserve (AGR) assignment and that he be provided pay and allowances and compensatory damages of $98,803 for the period of September 1999 through September 2001.

APPLICANT STATES: That the Department of Defense Inspector General (DoDIG) confirmed that he suffered several punitive actions as a result of his thorough and professional audit work regarding a state Adjutant General's use of Federal assets. He contends that the punitive actions taken were: 1) he was removed from his job and the active duty payroll; 2) he was given a referred Officer Evaluation Report (OER) that prevented his promotion to lieutenant colonel (LTC); 3) he was stripped of the opportunity for an active duty pension to which he would otherwise be entitled; 4) he was blacklisted from any other active duty position in the National Guard; 5) and was socially and professionally shunned.

He provides copies of his OERs for 1 January 1996 through 29 March 1998 (three top block center-of-mass reports; and one below center-of-mass retain, do not promote, referred report for the period 1 October 1997 through 29 March 1998); communication with the DoDIG; a DoDIG Report of Investigation; his retirement points statement, correspondence from medical personnel on the applicant's psychological status; and leave and earning statements, and schedule, for September 1999 through September 2001. He also provides a copy of a 31 December 2001 Army Times article entitled, "Trouble in the Guard? Investigation finds misconduct in highest levels." The article, in part, states that the Chief of the National Guard Bureau (who was the applicant's senior rater on the referred OER) "failed to discipline a senior aide who had sexually harassed a colleague and misled federal investigators about his role in the incident. The report said his testimony was 'not creditable' and 'failed to meet the standard for honesty.' The findings … resulted in a stern letter of rebuke by the Secretary of the Air Force."

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

That he was a major (MAJ) in the Connecticut Army National Guard (CTARNG) on 6 December 1995, when he was voluntarily ordered to active duty in an Active Guard/Reserve (AGR) status by National Guard Bureau (NGB) orders 340-005, for a period of three years (2 January 1996 through 1 January 1999), attached to the Internal Review (IR) and Audit Compliance Office, National Guard Bureau Alexandria, Virginia. He was assigned duties as an auditor. The orders state that the applicant was ordered to active duty with his consent and the consent of the Governor of the State of Connecticut. The orders further state that upon completion of the period of active duty, unless sooner released or extended


by proper authority, that the applicant would return to the place where he entered active duty and be released from such duty.

Prior to entering this AGR tour, his retirement point statement shows that he had 17 years qualifying for retired pay at age 60 with over 10 years and 9 months active duty, 5 years in the United States Army Reserve (USAR), and over 1 year in the Army National Guard.

On 1 October 1997, the applicant was assigned to audit the use of Federal funds by the Washington State National Guard, after a state audit concluded that The Adjutant General (TAG) for the Washington State National Guard improperly used a state employee as a personal driver and made personal telephone calls on state-owned equipment. In the process of the audit, one of the applicant's actions provoked an adverse reaction by his NGB supervisory chain, a letter to the State of Washington Executive Ethics Board, dated October 15, 1997 which asked if the Washington State TAG's use of state administrative leave to perform Federal duties and his receipt of compensation from outside employment violated state ethics regulations. Citing that letter as a complaint against the TAG, the State Ethics Board opened an investigation into the TAG's conduct. On
22 December 1997, the applicant was counseled by his rater for exceeding the scope of the audit by involving himself in state issues. On 30 March 1998, the applicant was transferred from the NGB Internal Review and Audit Compliance Office to the NGB Comptrollers Office.

On 18 June 1998, the applicant was notified by memorandum from the
U. S. Total Army Personnel Command, that he was selected for promotion to LTC, effective 30 August 1998. On 22 September 1998, the applicant elected to delay his promotion to LTC since he was on a AGR tour in a major's position and therefore could not be promoted until the tour ended.

On 4 November 1998, the applicant was given a referred OER (below center-of-mass – retain, do not promote) by his senior rater (SR), the major general Vice Chief of the NGB. The SR stated that the applicant, "displayed less than outstanding judgment and demonstrated a lack of auditing discipline during the rating period." The applicant did provide comments to the referral.

The applicant's AGR tour was not extended beyond his 3 year tour orders and he was released from active duty at the end of his AGR tour on or about 1 January 1999, and returned to the CTARNG.

The applicant stated that he filed an OER appeal but that it was returned stating that evidence in the form of an IG inquiry would be needed. On 6 July 1999, the


applicant submitted a complaint to the DoDIG contending that he had suffered reprisal and punitive action by the SR while assigned to the NGB by removing the applicant from his IR job and the active duty payroll, stripping him of his promotion to LTC by marking "do not promote" on his OER, stripping him of an active duty pension to which he would otherwise be entitled (he stated that as of 30 September 1999, he had 14 years and 11 months active duty), and blacklisting him from any other active duty position with the National Guard. On 1 December 2000, the DoDIG published a report of its investigation concluding that the allegation of reprisal was unsubstantiated and that neither the applicant's letter to the Washington State Ethics Board nor his other audit activities constituted protected communications within the meaning of the "Military Whistleblower Protection Act." The DoDIG perceived the actions taken against the applicant (removal from his IR job, referred OER, and AGR tour not renewed) to be seemingly a harsh response to the efforts the applicant undertook in good faith to carry out his audit assignment. The DoDIG determined that the SR was misinformed concerning certain aspects of the applicant's work and may have chosen to take strong measures because of his conclusion that the applicant's audit activities strayed into exclusively state matters or otherwise did not comply with acceptable audit practices. The DoDIG did not agree with the SR's conclusion. The DoDIG found that the actions taken by the SR against the applicant were severe relative to actions he had taken against other officers under his command at the NGB. The DoDIG recommended that the SR reevaluate the actions taken with respect to the applicant and determine whether some measure of redress was appropriate.

The SR responded on 31 January 2001, with a letter stating in part, "It is difficult to know what misinformation … allegedly was provided to me. The suggestion that the actions that the respondent (SR) took were more severe relative to actions taken against other officers is without basis as I have in my 42+ years of service, never observed nor been associated with an officer who apparently absolutely and repeatedly refuses to adhere to guidance and direction from his commander/supervisor. He was repeatedly apprised and directed to curtail his activities relative to his apparent constant and continual insistence upon contact, conversation and/or dialogue with the personnel in the Washington State Auditors Office. This formed the basis for the actions that were taken and the OER rendered. … My recommendation that he not be continued on the NGB tour was based upon his repeated unwillingness to adhere to his supervisor's guidance and direction."

The DoDIG acknowledged the SR response by memorandum, dated
14 February 2001, stating, "While we continue to believe that (the applicant's) situation warranted reconsideration, we recognize that your decision is a matter of command discretion. Accordingly, we intend no further action and consider the case closed."

The applicant's delayed promotion to LTC due to being assigned in an AGR major's position was vacated and he was promoted to LTC, USAR, effective
4 May 2001. He is currently assigned as a drilling Reserve member to an Army Reserve Troop Program Unit, the 352^nd Civil Affairs Command in Riverdale, Maryland.

The Temporary Early Retirement Act (TERA) was enacted by Congress on
23 October 1992, in the National Defense Authorization Act of Fiscal Year 1992, to assist in the military draw down of forces, to permit selected military members to retire early between 15 and 20 years of service and accrue additional military retirement points through service in military Reserve Components or employment in qualifying public or community service organizations. The Secretaries of the respective services designated the ranks and military specialties that were eligible to apply according to the needs of the service. Retirement under this program was not a right, it was granted on an individual basis according to the requirements of the service. The TERA program ended on 30 September 2001.

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. The applicant was ordered on a voluntary AGR tour for a finite period of
3 years. He served for those three years and was paid the commensurate military pay and allowances. There was no contract, promise, or right to further AGR or active duty service connected with the order. There is no error or injustice in the applicant's release from active duty at the end of the AGR tour according to the period designated by the orders. As such, there is no basis for granting the applicant's request to be restored to active duty or to provide back pay. Granting compensatory damages is not in the jurisdiction of this Board.

2. Although the DoDIG considered the applicant's situation warranted reconsideration, the IG recognized that moving the applicant to a different duty assignment, rendering a referred OER, and concluding the applicant's AGR tour as originally ordered were matters of command discretion. This Board finds no error or injustice in the duty reassignment or the ending of the AGR tour as originally ordered. The Board cannot render a decision on error or injustice in the referred OER since the applicant did not specifically address this as an issue to the Board and the applicant has not exhausted administrative remedies concerning the OER. In accordance with Army Regulation 15-185, which governs the Army Board for Correction of Military Records, the Board can not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice. The OER appeal process must


first be exhausted for the OER issue to be presented to the Board and the applicant must present evidence of error or injustice in the OER as well as copies of documents and information concerning his administrative efforts made to correct the error or injustice in question.

3. There is no error or injustice in the applicant being removed from the active duty payroll at the end of his 3 year AGR tour according to the original orders which ordered him to that duty. During his AGR tour, the applicant did not have the required minimum 15 years active duty to be eligible to apply for retirement under TERA. The end of his AGR tour as originally ordered and for which he volunteered did not deprive him of early retirement as an error or injustice. He was not entitled to an early retirement.

4. 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

__rw___ __mt____ __le____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001064682
SUFFIX
RECON
DATE BOARDED	20020808
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	106.001 – Restoration
2.	128 – Pay and Allowances
3.
4.
5.
6.