PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 28 March 2002
         DOCKET NUMBER: AR2002069434


         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
Mr. Joseph A. Adraince		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Lester Echols		Member
Mr. Thomas Lanyi		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.

---

2. The applicant requests, in effect, that an Officer Evaluation Report (OER) be removed from his records.

3. The applicant states, in effect, that personnel actions were taken against him in reprisal for his protected communication, as substantiated by an Inspector General (IG) investigation conducted by the Defense Intelligence Agency (DIA) and agreed to by the Director, Special Inquiries, Department of Defense IG (DODIG).

4. The applicant’s military records show that he is currently a major/0-4 serving on active duty. On 31 May 2000, while serving as a foreign service officer in Venezuela, he wrote a Member of Congress (MOC), complaining that he had been the subject of an unofficial investigation conducted by his rater, an Army lieutenant colonel, related to the alleged forgery of two documents. He complained that as a result of this unofficial investigation, the rater had recommended that he receive a letter of reprimand and be returned from his foreign officer training assignment in Venezuela to his basic branch. His complaint was forwarded to the DODIG Hotline, and it was referred to the DIA IG for investigation.

5. In August 2000, the contested permanent change of station OER, for the period 18 December 1999 through 29 June 2000, was completed by the applicant’s rater and senior rater. In this report, the applicant was evaluated as a foreign service officer, assigned to the Defense Attache Office, Caracas, Venezuela. In Part V (Performance and Potential Evaluation) the rater placed the applicant in the second block (satisfactory performance, promote) and in Part VII (Senior Rater) the applicant was placed in the second block (fully qualified). The accompanying senior rater comments indicated that the applicant’s performance had been adequate.

6. On 14 November 2000, the applicant sent another letter to his MOC, complaining that his rater, along with the Defense Attache, an Air Force colonel, had written him an unfavorable OER, in retaliation for his earlier complaints to the MOC and the DODIG. This complaint was forwarded to the Department of the Army (DA) IG, who in turn tasked the DIA IG to conduct an investigation into the alleged reprisal. The DA IG case was subsequently transferred to the DODIG, which also tasked the DIA IG to conduct an investigation.

---

7. The DIA IG conducted an investigation into the events and circumstances surrounding the applicant’s allegation of reprisal and completed their Report of Investigation (ROI) on 18 July 2001. Their ROI substantiated the allegations that an unauthorized investigation of the applicant had been conducted and that the applicant had been reprised against for his complaints to a MOC and the DODIG.

8. On 30 October 2001, the DODIG informed the applicant that the DIA IG had completed its investigation into his reprisal allegations, under the provisions of the “Military Whistleblower Protection Act.” The applicant was further advised that the investigation had substantiated his allegation that he had been given an unfavorable OER in reprisal for his whistleblower activities. He was further informed that the DIA IG had substantiated that the adverse personnel action in question had been taken against him in reprisal for his protected communication. The DODIG further stated that they reviewed the DIA IG ROI and agreed with its findings and conclusions which substantiated the allegations of reprisal.

9. DOD Directive Number 7050.6, dated 20 November 1989, as amended in reissued versions, dated 3 September 1992, 12 August 1995, and on 23 June 2000, covers the Military Whistleblower Protection Act provisions contained in Title 10 of the United States Code, section 1034 (10 USC 1034).

10. DOD Directive 7050.6 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.

---

11. The directive also provides that a member or former member of the Armed Forces who has filed an application for the correction of military records alleging reprisal for making or preparing a protected disclosure may request review by the Secretary of Defense of the final decision on such application. The request for review must be in writing and include the member’s name, address, telephone number, copies of the application to the Board and the final decision of such application, and a statement of the specific reasons that a member is not satisfied with the decision. The request for review of the final decision must be filed within 90 days of receipt of the decision by a member or former member of the Armed Forces. The decision of the Secretary of Defense is final. Requests based on factual allegations or evidence not previously presented to this Board shall not be considered. New allegations or evidence must be submitted directly to the Board for reconsideration under procedures established by the Board.

CONCLUSIONS:

1. The Board supports the DOD policy of unrestricted communication with Members of Congress, 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 shows that the applicant made a protected communication with a MOC and that an investigation was conducted that substantiated that an unfavorable personnel action was taken in the form of an adverse OER being rendered in reprisal for this protected communication. It is also clear that the officials responsible for taking these actions were aware of the protected communication made by the applicant prior to the unfavorable report being rendered.

3. The Board concurs with the findings of the DODIG that substantiated the allegations that the applicant was issued the OER in reprisal for a protected communication with a MOC. Therefore, the Board concludes that the contested OER should be expunged from the applicant’s record at this time.

4. In view of the foregoing, the applicant’s records should be corrected as recommended below.

---

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by removing the OER, with the ending date of 29 June 2000, from the record of the individual concerned; by declaring the period of service covered on the OER as a nonrated period of service; and by placing a non-prejudicial explanation in his records explaining the gap created in OER rating periods as a result of this action.

2. That 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:

__FNE__ ___LE___ ___TL___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Fred N. Eichorn___
                  CHAIRPERSON

---

INDEX

CASE ID	AR2002069434
SUFFIX
RECON
DATE BOARDED	2002/03/28
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 267	123.0700
2.
3.
4.
5.
6.