PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 30 April 2002
         DOCKET NUMBER: AR2002068827


         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.

Mr. Carl W. S. Chun		Director
Mrs. Judy Blanchard-Miller		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry, Jr		Member
Mr. Thomas E. O'Shaughnessy, Jr.		Member

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

         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, in effect, removal from his record the Noncommissioned Officer Evaluation Report (NCOER) dated February 1999 through November 1999. He is also requesting to be returned to his previous assignment in San Juan, Puerto Rico, where he was removed without justification.

3. The applicant states, that he suffered reprisal for his protected communication. The applicant produces as evidence a letter dated 29 January 2002 from the Department of Defense Inspector General. The communication was in regard to the final report of Reprisal for Whistle Blower investigation. It explained that four of the adverse personnel actions, including his unjust NCOER and the unjust removal from his previous assignment were substantiated and in reprisal for his protected communication. The applicant further states, that the USAREC IG, the Department of the Army IG and the Department of Defense IG offices agree with the conclusion of the inquiry.

4. The evidence of record shows that the applicant was born on 26 February 1956. He enlisted in the National Guard of the Army on 4 December 1984 with
3 years, 2 months and 12 days of prior active service. His military occupational specialty was 91C (Patient Care Specialist). His service was continuous through extensions and reenlistments. He was promoted to pay grade E-5 effective
5 August 1984, pay grade E-6 effective 21 July 1986 and pay grade E-7 effective 7 September 1991.

5. The applicant’s NCOER’s contained in his OMPF reflect that he received laudatory remarks on all of his NCOER’s from September 1991 through May 1995. The majority of his NCOER’s for overall performance was marked "1" by both the rater and senior rater with comments from the senior rater as "promote now; unlimited potential, outstanding soldier." During this time frame he also received many awards and decorations for his performance as a nurse as well as recruiter. All of the applicant’s NCOER’s during that period are favorable in nature and demonstrated above average performances.

6. In January 1995, the applicant was assigned to the Miami Recruiting Battalion, United States Army Recruiting Command (USAREC), as an active Guard Reserve (AGR) recruiter in San Juan, Puerto Rico.

7. Between April 1995 and January 1999, the applicant received five NCOERs. He received laudatory remarks on all of his NCOER’s. The majority of his NCOER’s for overall performance was marked "1" by both the rater and the senior rater with comments from the senior rater as "promote now to master sergeant," "unlimited potential," "outstanding performance."

8. On 26 August 1999, the applicant and other members of his unit had a chance during a sensing session to express their concerns and worries to the battalion commander. The applicant was the senior recruiter, so after receiving input from the majority of the company soldiers, he agreed and acted as the representative for the company. The applicant expressed his concerns about the discontent and low morale that his unit was experiencing in the company due to problems with the command leadership team. The applicant specifically spoke out about Captain J--- C---, the company commander, and first sergeant R--- C-----. The applicant also expressed to the battalion commander his fears as well as other soldiers’ fear of retaliation. The applicant stated that the battalion commander assured him that he was taking notes without any names and that the information would be used in a professional and positive manner.

9. On 15 September 1999, the station commander, informed the applicant that he had to report to the first sergeant the following day. On 16 September 1999, the applicant reported to the company commander and the first sergeant. A DA Form 4187 (Request for Personnel Action), dated 17 September 1999 was presented to the applicant. The DA Form 4187 stated that the applicant was requesting reassignment or reattachment within the USAREC to either Chicago or the Columbus Recruiting Battalion. After the applicant read the document that was presented to him, he refused to sign the DA Form 4187. (The applicant alleges that because he refused to sign the DA Form 4187, the first sergeant threatened to give him a negative evaluation). A memorandum was prepared which stated that the applicant was counseled by the first sergeant and the company commander on the command directed reassignment. The reassignment was subsequently changed to the New York City Recruiting Battalion. There were no reasons cited for the reassignment from the battalion; however, endorsements made by the brigade cited that the applicant had not moved in over 5 years and for that reason he should be moved. The action was approved by the Full Time Support Management Division.

10. On 23 September 1999, the applicant filed a complaint with the 65^th Regional Support Command (RSC) Inspector General (IG) alleging that responsible officials committed reprisal against him for communicating with the battalion commander by informing him of the low morale, discontent, and fear of retaliation from the company’s first sergeant and the company commander. He also stated that he was forced to sign a DA Form 4187, requesting reassignment to another recruiting battalion. The applicant stated, that he believes that this was in reprisal for making his communication to the battalion commander. On
24 September 1999, the applicant contacted the DOD IG and filed a complaint of a possible Whistleblower Reprisal. After they conducted a preliminary analysis, the DOD IG referred the applicant’s case to the Department of the Army Inspector General (DAIG).

11. On 28 September 1999, the applicant received a Letter of Concern; the letter identified him as a low producer and gave him 60 days to show improvement.

12. On 26 October 1999, the applicant received a performance counseling identifying him as a low producer and giving him 30 days to show improvement.

13. On 22 November 1999, the applicant received orders for reassignment with a report date of 3 April 2000.

14. On 24 November 1999, the applicant received a performance counseling which identified him as a low producer. He was also informed that he was being removed from recruiting duties and would be temporarily reassigned to the 65^th RSC. There are no supporting documents to show that the applicant was pending any unfavorable action.

15. A production report for the applicant covering Fiscal Year (FY) 97,98, and 99, indicated that the applicant’s performance was average in regard to quality contracts but excellent using volume standards. He enlisted 21 applicants for FY 99 and five of them were quality contracts.

16. A copy of the Unit Manning Roster (Miami Recruiting Battalion) for USAR recruiters assigned to the Miami Recruiting Battalion showed that five soldiers were beyond 5 years time on station. One AGR recruiter had been serving in the battalion for 13 years.

17. On 5 January 2000, the applicant submitted a DA Form 4187, requesting to be reassigned from recruiting duties and to be reclassified into military occupational specialty 79S (Retention NCO) or his secondary MOS 91C (Practical Nurse). The request for reclassification and reassignment was disapproved. An attached memorandum by the first sergeant stated in justification of the denial that the applicant was "identified as a low producer," that the applicant "has carried a negative attitude toward his job, his fellow recruiters, the company leadership team," and that the applicant’s primary concern was to "remain in Puerto Rico until his retirement." The request was disapproved at HQ, USAREC, and the stated reason for the denial was the applicant was already on orders to the New York City Recruiting Battalion.

18. On 3 February 2000, upon his move from the Miami Recruiting Battalion, the applicant received an unfavorable NCOER, which covered the period of (February-November 1999). In Part IVa2 (Is committed to and show a sense of pride in the unit-works as a member of the team.), the applicant was evaluated as a "NO". The rater (the first sergeant) made the comment, "detrimental to the recruiting station’s success; transferred to local reserve unit pending reassignment. The applicant was evaluated as Needs (Some) Improvement in Part IVb (Competence) of the NCOER. The rater made the comment, "the most senior reserve recruiter in the company yet one of the least productive." The applicant was also evaluated as Needs (Some) Improvement in Part IVd (Leadership). The rater commented that the applicant was a "continuous distraction to the station commander and command leadership team." The applicant received an overall rating by the rater as "fully capable." The senior rater, rated the applicant as an overall "3" in performance and a "3" in potential. The senior rater bullet comments included: "promote with contemporaries," "may succeed in a different environment," and has the potential to excel as a Sergeant First Class if he applies himself properly." The reviewer concurred with the evaluation. (The evaluation was in stark contrast to the applicant’s previous three evaluations rendered). A different battalion commander, company commander and first sergeant rendered earlier and subsequent evaluation reports.

19. On 3 May 2000, the DAIG concluded that the investigation would be conducted at the Training and Doctrine Command (TRADOC) and the case was referred to the TRADOC IG. On 16 November 2000, the case was reassigned to the USAREC. After additional analysis and information gathering, the Commanding General, USAREC directed the USAREC IG to conduct an investigation. The USAREC IG, after conducting its investigation, concluded that the applicant’s allegations were substantiated and that members of his chain of command took reprisal action against him for making a protected communication to the battalion commander. It was determined that the applicant suffered reprisal in the form of being improperly reassigned to the New York City Recruiting Battalion, improperly detailed from recruiting duties and temporarily attached to the 65^th US Army Regional Support Command, improperly rendered an adverse NCOER for the period of February 1999 through November 1999 and improperly denied reclassification and reassignment outside of USAREC.

20. On 26 February 2001, the applicant appealed to the Department of the Army Enlisted Special Review Board (ESRB) for removal of his NCOER for the period of 9902-9911.

21. On 29 January 2002, the DOD IG concurred with the findings of the USAREC IG, in that the applicant’s allegations of reprisal were substantiated. The DODIG then informed the applicant of his right to apply to this Board in order to have his records corrected.

22. On 23 April 2002, the Board received a copy of the ESRB investigation. After reviewing the file and the facts of the case, the ESRB determined that the NCOER for the period of 9902-9911 would be deleted. The NCOER was deleted on 9 April 2002.

23. Army Regulation 601-1 (Assignment of Enlisted Personnel to the U.S. Army Recruiting Command), 2 March 1992. Paragraph 3-6f (Senior NCO Reassignment Program), states, "Career recruiters in the grades of sergeant first class and below must move at the completion of 4 years in HQ USAREC. Additionally, at the completion of a total of 6 years in a battalion, soldiers must take one of two options: request reassignment to another battalion within the same brigade or request reassignment to a different brigade. Paragraph 6-10.1 AGR Senior NCO Reassignment Program (4/6 Year Program) states, "the 4/6 year program applies to all USAREC assets. This rule will be applied for AGR recruiters as it is with all active army recruiters. Paragraph 3-6 states that soldiers will be identified for movement only upon submission of a personnel action request that affects his or her current Tour Termination Date (TTD). Upon submission of either a request for reenlistment or a voluntary/involuntary request for a cost/no cost move, the soldier’s records will be screened for applicability of the 4/6-year rule.

24. Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System). Paragraph 3-3a (Performance counseling) states, that face-to-face performance counseling between the rater and the rated NCO is accomplished in order to improve performance and professionally develop the NCO. Paragraph 3-3c, of the same regulation states, that face-to-face performance counseling is mandatory for all noncommissioned officers. Initial counseling will be accomplished within 30 days of the rating period and additional counseling will be conducted at least quarterly, every 3 months thereafter. Paragraph 3-6 of the same regulation (Rater responsibilities) states, that a DA Form 2166-7-1
is mandatory for use by the rater when counseling all NCOs. Paragraph 3-8, of the same regulation (Senior Rater Responsibilities) states, that the role of the senior rater is primarily of evaluation, focusing on potential, responsible for overseeing the performance evaluation, and mentoring using all reasonable means to become familiar with the rated NCO’s performance throughout the rating period; such as periodic review of the counseling being accomplished. Paragraph 3-10 (Reviewer Responsibilities) states, that the reviewer is responsible for rating safeguard overwatch.

25. The DOD Directive Number 7050.6, dated 20 November 1989, implemented 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. (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).

26. 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, 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 that the Board has the authority to correct.

2. The evidence of record shows that the applicant’s unfavorable NCOER, dated 9902-9911 was improper and not in accordance with regulations. The derogatory comments and the dates of counseling focused extensively on the last 3 months of the rating period after the applicant had spoken out at the company sensing session. It is not reasonable to believe that the applicant’s performance changed as drastically as indicated by the unfavorable NCOER. This Board believes, that his unfavorable NCOER was a direct result of his protected communication. This Board also believes that the applicant’s reassignment to the New York City Recruiting Battalion, his detail from recruiting duties and the denial of applicant’s request for reassignment out of the recruiting field was improper and was a direct result of his protected communication.

3. The evidence of record clearly shows that the applicant made protected communications; that unfavorable personnel actions were taken; and that officials responsible for taking the unfavorable personnel action 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. This Board finds that the action by the applicant’s chain of command to be retaliatory in nature and arbitrary and capricious.

4. This Board concurs with the decision of the ESRB. The applicant's NCOER dated 9902-9911 was deleted on 9 April 2002. However, this Board believes, that more should be done to correct the injustice that was bestowed upon the applicant. Therefore, in the interest of justice the applicant's record should be submitted to the next scheduled Standby Advisory Board for promotion consideration to Master Sergeant under the earliest primary zone criteria for which he was eligible and he should be reinstated to the position of AGR Recruiter or Retention NCO (79V) in Puerto Rico or to another position that is commensurate with his rank and experience.

5. Therefore, in view of the circumstances in this case and the supporting documentation that includes the DOD IG, the USAREC IG investigation and the ESRB’s determination, it would be appropriate to correct the records as recommended below.

RECOMMENDATION:

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

a. submitting his corrected record to the next scheduled Standby Advisory Board for promotion consideration to Master Sergeant under the earliest primary zone criteria for which he was eligible if any and, if selected, his time in grade be adjusted accordingly; and

b. by reinstating the applicant to the AGR Recruiter or Retention NCO (79V) in Puerto Rico or to another position that is commensurate with his rank and experience.

2. That this case be closed as a Substantiated Whistleblower, as listed and that the applicant be notified of the findings.

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3. 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:

__aao___ __hof___ __teo___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Arthur A. Omartian
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002068827
SUFFIX
RECON
DATE BOARDED	20020430
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.	11.9300
2.
3.
4.
5.
6.