RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           18 March 2004
      DOCKET NUMBER:   AR2004104433

      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. Luis Almodova                 |     |Analyst              |

  The following members, a quorum, were present:

|     |Mr. Roger W. Able                 |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Robert J. Osborn              |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect:

      a. removal of an adverse Noncommissioned Officer Evaluation Report
(NCOER), for the period May 2000 through November 2000, from his Official
Military Personnel File (OMPF);

      b. upon removal of the report from his OMPF, that his records be
referred to an enlisted Standby Advisory Board (STAB) (currently known as
Special Selection Board (SSB)) for promotion to Sergeant First Class; and

      c. that he be given a PCS (permanent change of station) award (Army
Commendation Medal, or higher) from Keller Army Community Hospital (KACH),
which he would have been recommended for had he not made communication with
the Inspector General (IG).

2.  The applicant states, in effect, that he filed a complaint with the
Department of Defense (DoD) IG Hotline in reference to the "Military
Whistleblower Protection Act, Title 10, United States Code, Section 1034."
The Department of the Army Inspector General (DAIG) substantiated, on 6
February 2004, that his previous rating chain improperly reprised against
him by rendering an adverse NCOER in April 2001, for the period May 2000
through November 2000, for making protected communication, in violation of
DoD Directive 7050.6.  The applicant adds that this NCOER has negatively
impacted his opportunities for being recommended for promotion to sergeant
first class by two separate centralized promotion boards.

3.  The applicant provides a copy of the letter he received from the
Assistance Division, Office of the Inspector General, Washington, DC, dated
6 February 2004; a copy of the DD Form 149, Application for Correction of
Military Record, dated 18 April 2003, he submitted to the Board before the
IG closed his case on 6 February 2004.  The DD Form 149 the applicant
submitted included the following documents that were then and are now
relevant to this Record of Proceedings:  Directorate of Operations, Plans,
and Security Memorandum, Subject:  Off Post Military Burial Honors (Change
1), with enclosure, dated 31 January 2000; DA Form 1059, Service School
Academic Evaluation Report, dated 29 June 2000; DA Form 2166-7-1,
Counseling, dated 18 August 2000; Follow Up to Counseling dated 11 July
2000, dated 22 September 2000; back side of undated, hand-written, DA Form
2166-7; Memorandum from Chief, Medical Maintenance, 405th Combat Support
Hospital, Subject: Recommendation for the United States Army Medical
Material Agency
(USAMMA) Course, dated 4 October 2000; Memorandum from Commander, US Army
Medical Department Activity, Subject: Recommendation for the United States
Army Medical Material Agency (USAMMA) Course, dated 30 October 2000; copy
of e-Mail, Subject: Getting Orders Cut to Attend USAMMA Medical Logistics
Internship Program, dated 29 January 2001; copy of e-mail, Subject: Fraud,
Waste and Abuse Complaint, dated 15 December 2000; copy of pertinent parts
of DA Form 1594, Daily Staff Journal or Duty Officer's Log, for the Provost
Marshal's Office, Military Police Desk, dated 17 November 2000; copy of
letter addressed to the applicant from the Office of the Inspector General,
dated 16 January 2001; copy of letter addressed to the applicant from the
Office of the Inspector General, dated 31 January 2001; copy of e-Mail,
Subject: Six Part Folder, dated 13 March 2001; copy of e-Mail, Subject:
Follow Up, dated 13 March 2001; copy of DA Form 3918-R, Facsimile
Transmittal Header Sheet, dated 28 February 2001; copy of DA Form 4187 and
4187-1, Personnel Action, dated 15 and 16 February 2001, respectively; copy
of four pages of six from MILPER Message Number 01-069, Subject
Reenlistment/Reclassification In/Out Calls, dated 27 February 2001; DA Form
2166-7, NCOER, for the period May 2000 through November 2000, with US Army
Medical Department Activity, Memorandum, Subject: Letter of Lateness for
Noncommissioned Officer Evaluation Report (NCOER), dated 11 April 2001, and
Memorandum for Record, Subject: NCOER for [the applicant], dated 4 April
2001; a copy of a Message Confirmation dated 4 April 2001; a copy of a
Facsimile Transmittal Sheet, with the transmitted message, residential
phone listing of calls made from the applicant's home phone number for the
period 3 through 4 February 2000, and a hand-written description of the
contents and relevance of the other documents; a copy of pages 35 and 61 of
the West Point Phone Book; a copy of DA Form 2166-7, NCOER, for the period
May 2000 through November 2000; a copy of a US Military Academy statement
about the applicant's background, dated 23 March 2001; four Memorandums for
Record prepared by acquaintances and fellow noncommissioned officers about
the applicant's character and performance of duty, dated 7, 9, and two
dated 10 May 2001; and a certified copy of the applicant's Enlisted Record
Brief, with a brief date, 10 September 2001.

CONSIDERATION OF EVIDENCE:

1.  The applicant's service personnel records show that the applicant
enlisted in the US Army Reserve, for 8 years, on 18 June 1992.  He enlisted
in the Regular Army for 3 years on 1 July 1992 and he has remained on
active duty through a series of reenlistments.  The applicant is currently
on active duty and was promoted to the rank of staff sergeant, on 1
February 2000.
2.  The applicant alleges in an e-Mail to the MEDDAC Commander to have had
conversations with her, under the Commander's Open Door Policy, on 27 and
30 October, and on 15 November 2000, during which he made reports to her of
the theft of government property, misuse of government property, safety
violations, and misappropriation of funds in the MEDDAC at KACH.

3.  The applicant was reassigned from the Medical Maintenance Section on
about 5 November 2000.  He was initially assigned to work at the medical
company, and on 20 November 2000, he was assigned to the Plans, Training,
Mobilization and Security (PTM&S) Section to perform the duties of Training
NCO.

4.  The applicant alleges to have met with the MEDDAC Commander on
15 November 2000.  The applicant allegedly brought evidence to this meeting
to show how calibrations on critical care equipment was done fraudulently.
The commander allegedly responded that he should save the information and
give it to the officer, from outside the chain of command, assigned to the
investigation.

5.  On 17 November 2000, the applicant made a telephonic report to the
Provost Marshal's Office, Military Police Desk, about fraud.  The applicant
reported that labels were being placed on medical equipment to show they
were calibrated but were not.

6.  The pertinent parts of a DA Form 1594, Daily Staff Journal or Duty
Officer's Log, for the Provost Marshal's Office, Military Police Desk,
dated 17 November 2000, that the applicant submitted, shows that an
investigation was conducted and a determination was made that the matter
was a chain of command issue.  The unit continued the investigation, the
log states.

7.  On 15 December 2000, the applicant submitted a Fraud, Waste and Abuse
Complaint to the DoD IG Hotline.  In this message, he advised that he had
expressed mailed a packet to that office containing a timeline and all
supporting documents explaining the information he had submitted to them.
In the section, "Actions you have taken regarding this complaint:" he
responded, "I have been moved out of my position (NCOIC) Medical
Maintenance, 91A30 without any orders.  I am supposed to have a mental
evaluation done 19 December 2000 (0830 hours) from a major at Walter Reed
Army Medical Center.  I was moved out of Medical Maintenance 6 November
2000 and told to work at the Medical Warehouse.  I was then moved out of
the Medical Warehouse 21 November 2000.  I am now working at (since 21
November) at the Medical Company until the command decides what to do with
me.  In my packet you will see the documentation or lack of documentation
(i.e., no transfer orders)."
8.  On 16 January 2001, the DoD IG responded to the applicant's
correspondence dated, 11 and 15 December 2000.  He was notified that his
case had been referred for preliminary review to the Special Inquiries
Directorate, and his case was issued a Defense Hotline case number.

9.  On 31 January 2001, the Assistance Division, DAIG, advised the
applicant that his letter to his Member of Congress (MOC), concerning his
allegations of a reprisal had been received.  He was told he should be
aware that since a MOC had intervened in his behalf, that the result of the
inquiry would be provide to the MOC, rather than to him [the applicant], as
required by regulation.

10.  On 14 February 2001, the applicant submitted a DA Form 4187, Personnel
Action, requesting reclassification to the military occupational specialty
(MOS) 33W30 (Electronics Warfare Intercept Systems Repairer) from the MOS
91A30 (Medical Equipment Repairer).  The applicant's supervisor and his
unit commander recommended approval on 15 February 2001.  The hospital
commander recommended disapproval of the applicant's request on 16 February
2001.

11.  On 12 March 2001, the applicant requested that his six-part folder be
sent to his new (current) rater since he had been out of the Medical
Maintenance Section since 5 November 2000 and had started working at the
medical company on 20 November 2000 and was assigned to work in the Plans,
Training, and Mobilization and Security (PTM&S) Section on 20 November
2000.  The applicant's former rater replied that it was not a problem that
the six-part folder would be forwarded to his current supervisor.

12.  On 13 March 2001, the applicant sent a confidential e-Mail to the
Hospital Commander, with courtesy copies addressed to the Commander, North
Atlantic Regional Medical Command (the commander's rater) and to the
Medical Command (MEDCOM) IG at Fort Sam Houston, Texas.  In this e-Mail
message, the applicant requested a follow up to their alleged conversation
under the Commander's Open Door Policy.  He indicated that they had
allegedly spoken on the 27 and 30 October and on 15 November 2000.  On
these occasions they had allegedly talked about the theft of government
property, misuse of government property, safety violations, and
misappropriation of funds in the MEDDAC at KACH.  On each occasion she had
allegedly expressed concern and said that an investigation into the
allegations would be forthcoming after the JCAHO (Joint Committee on
Accreditation of Healthcare Organizations) inspection was completed.

13.  In the e-Mail message, the applicant included, presumably as a
reminder to the hospital commander, that on 15 November 2000, he had
requested that her
driver talk to her [the hospital commander] and determine if a meeting was
possible.  She had allegedly agreed and a meeting was held on the same
date.  The applicant allegedly reported that most of the stolen property
was being returned (or had been returned).  The commander allegedly had
commented on how that was, "a good thing."

14.  On 15 November 2000, the applicant had allegedly brought evidence to
the meeting that allegedly occurred to show how calibrations on critical
care equipment was done fraudulently.  The commander allegedly responded
that he should save the information and give it to the officer assigned to
the investigation (the investigating officer would be from outside the
chain of command).

15.  The applicant continued by stating that, "Presently, I have not been
contacted by any officer(s) assigned to investigate the allegations and I
have not been asked to provide anyone with the cooperating evidence, dates
and/or details surrounding the allegations brought to you during our past
discussions.  Due to the scope and nature of the allegations, I request the
opportunity to communicate with the investigator(s) you have assigned, to
ensure the accuracy of dates, and events.  Please allow me the opportunity
to know if or when I can expect to be contacted by an investigator(s) per
our past conversations under the Commander's Open Door Policy."

16.  On 11 April 2001, the applicant was given a change of rater NCOER for
the period May 2000 through November 2000 for performance of duty as the
Noncommissioned Officer in Charge of the Medical Equipment Repair Section
of the Medical Maintenance Branch, Medical Department Activity (MEDDAC),
West Point, New York.

17.  The applicant refused to sign the NCOER and the report was so
annotated.  The rater, the senior rater, and the reviewer signed the NCOER
on 11 April 2001.  The reviewer concurred with the ratings given the
applicant by the rater and senior rater.  At the time this report was given
him, the applicant, a staff sergeant, whose primary military occupational
specialty was 91A30, was performing duties as the Training NCO for the
MEDDAC.

18.  The following entries have been extracted from the NCOER for the
period May 2000 through November 2000:

      a.  In part IV (Values/NCO Responsibilities), Item a.3. (Is committed
to and shows a sense of pride in the unit – works as a member of the team),
of the NCOER, the applicant was given a rating of, "No."  Explanatory
"Bullet
Comments" were entered to support this rating as follows:

           o Teamwork lacking; concerned with self interests

           o Repeatedly counseled for not following the chain of command

      b.  In part IV (Values/NCO Responsibilities) b. Competence, the
applicant was rated as, "Needs some improvement."  Explanatory "Bullet
Comments" were entered to support this rating as follows:

            o Failed to perform complete services on critical patient care
              equipment

            o Did not set appropriate priorities and complete work in a
timely
              manner

      c.  In part IV (Values/NCO Responsibilities) d. Leadership, the
applicant was rated as, "Needs some improvement."  Explanatory "Bullet
Comments" were entered to support this rating as follows:

           o Counseled twice on the importance of setting the example for
              subordinates and peers

            o Creates frustration and resentment among his peers and
              subordinates

      d.  In part IV (Values/NCO Responsibilities) f. Responsibility and
Accountability, the applicant was rated as, "Needs some improvement."
Explanatory "Bullet Comments" were entered to support this rating as
follows:

           o Credit card ordering responsibilities were taken away due to
              improper purchases and not following approval process

           o Requires frequent supervision

      e.  In part V (Overall Performance and Potential) the rater rated the
applicant as "Marginal."  Explanatory "Bullet Comments" were entered to
support this rating as follows:

            o Do not promote until he displays consistent job performance
            o Frequently blames his faults on others

            o Capable of greater performance

      f.  The senior rater rated both, the applicant's overall performance,
and his overall potential for promotion and/or service in positions of
greater responsibility as "Fair" (Numerical ratings of "4").

19.  The DA Form 2166-7-1, Counseling, pertinent to this NCOER rating
period, indicates that his initial counseling was administered on 18 August
2000.  The Follow Up to the initial counseling, dated 22 September 2000,
indicates however that the counseling was administered on 11 July 2000.
There is a discrepancy in the dates entered on these records to show when
the initial counseling was actually administered.

20.  The back side of the undated, hand-written, DA Form 2166-7, is
presumably a part of the counseling that was administered on 11 July 2000
advising the applicant about the rating he would receive if he were rated
that day and what he must do in order to achieve excellence in the items
that he is to be evaluated on at his next rating.

21.  On 27 April 2001, the applicant sent a copy of the record of phone
calls made from his residence during the period 2 through 3 February 2000
by facsimile (FAX) to the MEDCOM IG reference the "Whistleblower's
Protection Act."  The applicant also sent a copy of pages 35 and 61 from
the West Point telephone book as verification that CID (Criminal
Investigations Department) personnel were called from his residence on the
above dates.

22.  The next NCOER in the applicant's OMPF, after the contested NCOER,
shows that he was evaluated for performing the duties of Training NCO for
the MEDDAC.  The applicant was given a change of rater NCOER for the period
December 2000 through May 2001.

23.  The following data has been extracted from this NCOER:

      a.  In part IV (Values/NCO Responsibilities) a., the applicant was
given a "Yes" rating on each of the questions presented.  In items a
through f, the applicant was given rating of "Excellence" or "Success."  In
Part V, (Overall Performance and Potential) the rater rated the applicant
as "Among the Best."
      b.  In Part V, (Overall Performance and Potential), the rater rated
      the applicant's overall potential for promotion and/or service in
      positions of greater responsibility as "Among the Best."

      c.  In Part V, (Overall Performance and Potential), the senior rater
rated the applicant's overall performance as "Successful" (with a Numerical
Score of "1") and his overall potential for promotion and/or service in
positions of greater responsibility as "Superior" (with a Numerical Score
of "1").

      d.  The rater, the senior rater and the reviewer signed the NCOER on
1 June 2001.  The Reviewer concurred with the ratings given the applicant
by the rater and senior rater.  The same person served as Reviewer in both
the NCOER having an end date of November 2000 and May 2001.  The applicant
signed the NCOER in the appropriate space.

24.  The previous NCOER in the applicant's OMPF, before the contested
NCOER, an annual NCOER, shows that he was assigned the duties as the
Medical Equipment Repairer, NCOIC, for the MEDDAC.  The NCOER covered the
period May 1999 through April 2000.

25.  The following data has been extracted from this NCOER to draw
comparisons in the evaluations given the applicant in the same duty
position by the same rater and senior rater:

      a.  In part IV (Values/NCO Responsibilities) a., the applicant was
given a "Yes" rating by the rater on each of the questions presented.  In
items a through f, the applicant was given ratings of "Excellence" or
"Success" and in Part V.a, he was given a rating of "Fully Capable."

      b.  In Part V, the senior rater rated both, the applicant's overall
performance as "Successful" (Numerical rating "2") and his overall
potential for promotion and/or service in positions of greater
responsibility as, "Superior" (Numerical rating "2").

      c.  The rater, the senior rater and the reviewer signed the NCOER on
3 May 2000.  The Reviewer concurred with the ratings given the applicant by
the rater and senior rater.  The same persons served as rater and senior
rater in this NCOER as in the contested NCOER, which the applicant asks to
have expunged from his records.  The applicant signed the NCOER in the
appropriate space.
26.  The applicant submitted an application to the Board on 18 April 2003
requesting removal of the NCOER for the period June 2000 through November
2000 from his OMPF.

27.  The application for correction of records the applicant submitted on
18 April 2003 was administratively closed since the applicant had not yet
exhausted all administrative remedies available to him and the DAIG had not
yet completed its review of the allegations that had been made by him.

28.  On 6 February 2001, the Assistance Division, DAIG, notified the
applicant that it had completed its investigation into his reprisal
allegations under Title 10, US Code, section 1034, "Military Whistleblower
Protection Act" and his allegations of improper referral for a mental
health evaluation (MHE) conducted under Department of Defense Directive
(DODD) 6490.1, "Mental Health Evaluation of Members of the Armed Forces.
The Assistance Division further notified him that the DoD IG conducted a
thorough review of the investigation and agreed with its conclusion, and
accordingly, they had closed the case from further consideration under
Title 10, US Code 1034.  They advised him that if he felt that he was the
victim of an injustice or an error, he could apply to this Board for
consideration of an application for correction of his records.

29.  In the above referenced letter from the office of the IG, the
applicant was notified that his claim, that the Chief, Medical Maintenance,
had improperly reprised against him by rendering an adverse NCOER in April
2001, for the period May 2000 through November 2000, for making protected
communication, in violation of DODD 7050.6, had been substantiated.

30.  In the same letter, the applicant was notified that his claim, that
the Chief of Logistics had improperly reprised against him, by rendering an
adverse NCOER in April 2001, for the period May 2000 through November 2000,
for making protected communication, in violation of DODD 7050.6, had been
substantiated.

31.  The applicant was further notified in the same letter, that his claim,
that the Deputy Commander for Administration had improperly reprised
against him, by rendering an adverse NCOER in April 2001, for the period
May 2000 through November 2000 for making protected communication, in
violation of DODD 7050.6, had been substantiated.

32.  The above referenced letter from the Assistance Division notified the
applicant that his claims:  that his supervisor improperly reprised against
him by canceling his attendance at the 91A Functional Course at Sheppard
Air Force Base; that his supervisors improperly reprised against him by
reassigning him to
duties in the logistics warehouse for making protected communication; that
his chain of command improperly reprised against him by influencing the
company commander to refer him for a command-directed MHE for making
protected communication; that his company commander improperly referred him
for a command-directed MHE for making protected communication; that his
supervisors improperly reprised against him by reassigning him to duties
from the logistics warehouse to Headquarters Company, MEDDAC, on 20
November 2000, for making protected communication; that his supervisors
improperly reprised against him by refusing to endorse his attendance at
the USAMMA Logistics Intern Program for making protected communication; and
that the hospital commander improperly reprised against him by recommending
disapproval on his request for reclassification and reenlistment for making
protected communication were not substantiated.

33.  The applicant departed from West Point on a PCS in May 2001 to attend
the Electronics Warfare Intercept Systems Repairer Course at Fort Huachuca.
 The Academic Evaluation Report that he received for this course shows that
he reported there on about 19 May 2001 and the school course lasted until 4
April 2002.

34.  On his departure from West Point, the applicant received no award at
the end of his assignment.  The applicant contends that he should be given
a PCS award (Army Commendation Medal, or higher) from Keller Army Community
Hospital, which he alleges he would have been recommended for had he not
made a protected communication.

35.  The applicant's service personnel record shows that while he was
assigned to the MEDDAC at West Point, he was awarded the Army Achievement
Medal for exceptionally meritorious service by having received zero
deficiencies during the Command Logistics Review Team Inspection for the
period 12 July 1999 to 16 July 1999.  [This award should more appropriately
have been classified as an award for meritorious achievement rather than
meritorious service.]

36.  The applicant was awarded a Department of the Army Certificate of
Achievement for meritorious achievement for his selection as the MEDDAC NCO
of the Month for November 1999.

37.  The applicant was awarded the Army Achievement Medal for meritorious
achievement for being selected as the MEDDAC NCO of the Quarter for the
quarter, 1 October 1999 through 30 December 1999.

38.  The applicant was awarded a Garrison Commander Certificate of
Achievement, on 18 February 2000, for participating and qualifying as the
NCO
of the Quarter (1st Quarter, Fiscal Year 2000) Runner-up, at West Point,
New York.

39.  The applicant attended and successfully completed the AMEDD NCOES
Basic Course during the period 9 May 2000 through 29 June 2000 at Fort Sam
Houston, Texas.  He achieved course standards and demonstrated the academic
potential for selection to higher-level schooling/training.

40.  The applicant was awarded a United States Military Academy (USMA),
Certificate of Appreciation, on 18 October 2000, in recognition of
outstanding service during the USMA Army Family Action Plan Symposium.  The
USMA Superintendent, a Lieutenant General, signed the Certificate of
Appreciation.

41.  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 initially reissued on 3 September 1992 and
reissued on 12 August 1995.  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.  The directive, when reissued on 12 August
1995, included specific other complaints as protected communications and
expand the scope of persons and activities to which a protected
communication could be made.

42.  Further, the directive provides at paragraph E3d(4) that the Board, if
it determines that a personnel action was taken in reprisal for a member or
former member of the Armed Forces making or preparing a lawful
communication, makes a determination on the appropriateness of
administrative or disciplinary action against the individual or individuals
who committed the action and, if deemed appropriate by the Board, forwards
its recommendation to the Secretary concerned.

43.  AR 623-205 establishes the policies and procedures for the NCOER
system.  In pertinent part, it states that an NCOER accepted for inclusion
in an NCO’s
OMPF is presumed to be administratively correct, to have been prepared by
the properly designated rating officials, and to represent the considered
opinion and objective judgment of the rating officials at the time of its
preparation.  It also states that the burden of proof in an NCOER appeal
rests with the applicant.  Accordingly, to justify deletion or amendment of
an NCOER under the regulation, the applicant must produce evidence that
clearly and convincingly overcomes the presumptions referred to above and
that action to correct an apparent material error or inaccuracy is
warranted.

44.  AR 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
Department of the Army 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 AR 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.

45.  AR 600-8-22 provides that the Army Commendation Medal may be awarded
to any member of the Armed Forces of the United States who, while serving
in any capacity with the Army after 6 December 1941, distinguished himself
or herself by heroism, meritorious achievement or meritorious service.
Paragraph 3-1.d. in the regulation states that, "no individual is
automatically entitled to an award upon departure from an assignment.
Awards presented in conjunction with a permanent change of station will be
limited to exceptional cases."  The decisions to award an individual a
decoration and the decision as to which award is appropriate are both
subjective decisions made by the commander having award approval authority.
 The award should reflect the individual's level of responsibility and his
or her manner of performance.  The degree to which an individual's
achievement or service enhanced the readiness or effectiveness of his or
her organization will be the predominant factor.

DISCUSSION AND CONCLUSIONS:

1.  Unrestricted communication with Congress, the IG’s, and various other
Government investigators, as well as the protection from reprisal against
those who make or prepare to make such communications is supported by DoD
policy.  When such reprisals occur, they constitute an injustice, and left
unchecked, they can easily create a less than favorable environment, which
can adversely affect soldier morale, performance, and productivity.

2.  Soldiers and anyone (military, DA civilian, family member, or private
citizen) have the right to register complaints, orally or in writing, with
an Army IG concerning matters of Department of the Army interest.  Soldiers
have the responsibility to utilize their chain of command and to report
incidents of waste, fraud, and abuse when they recognize it.  The applicant
did what was expected of him.

3.  The applicant attempted to bring incidents of fraud, waste and abuse to
the attention of the chain of command and to military police officials.
When these attempts produced little result or failed, he made protected
communications and was reprised against.

4. The Assistance Division, DAIG, after investigating the applicant's
claims of reprisal, under Title 10, US Code, section 1034, "Military
Whistleblower Protection Act" substantiated that the applicant had been
reprised against by his rating chain when he was given an adverse change of
rater NCOER in April 2001, for the period May 2000 through November 2000.

5.  The Assistance Division, DAIG, also determined that the applicant's
claims:  that his supervisor improperly reprised against him by canceling
his attendance at the 91A functional course at Sheppard Air Force Base;
that his supervisors improperly reprised against him by reassigning him to
duties in the logistics warehouse for making protected communication; that
his chain of command improperly reprised against him by influencing the
company commander to refer him for a command-directed MHE for making
protected communication; that his company commander improperly reprised
against him by referring him for a command-directed MHE for making
protected communication; that his company commander improperly referred him
for a command-directed MHE for making protected communication; that his
supervisors improperly reprised against him by reassigning him to duties
from the logistics warehouse to Headquarters Company, MEDDAC, on 20
November 2000, for making protected communication; that his supervisors
improperly reprised against him by refusing to endorse his attendance at
the USAMMA Logistics Intern Program for making protected communication; and
that the hospital commander improperly reprised against him by recommending
disapproval on his request for reclassification and reenlistment for making
protected communication were not substantiated.

6.  Although paragraph E3s(4) of DoD Directive 7050.6, allows for the
imposition of administrative or disciplinary actions against those who
commit reprisals, no recommendation for an administrative or disciplinary
action is deemed essential since it is a logical belief that both the DoD
IG and the MEDCOM IG have taken
appropriate corrective actions regarding these matters and further
intervention is unwarranted.

7.  To recommend an administrative or disciplinary action against any third
party could be viewed as less than compassionate and positive and adds
little to the correction of errors and to the removal of injustice.

8.  There is no evidence, and the applicant has provided none to support
his contention that he would have been recommended for a PCS award at the
completion of his assignment at West Point.  His performance of duty and
achievements garnered him two Army Achievement Medals, two certificates of
achievement and a certificate of appreciation, along with three titles (NCO
of the month for the MEDDAC, NCO of the Quarter for the MEDDAC, and Runner
Up to the NCO of the Quarter for the US Military Academy at West Point)
while he was at West Point.  The decision to award an individual a
decoration and the decision as to which award is appropriate are both
subjective decisions made by the commander having award approval authority.
 It would be inappropriate to usurp this authority from the commander
having award approval authority without benefit of knowledge of her or his
logic and convictions concerning the Army's awards process and what
constitutes an "exceptional case."

BOARD VOTE:

_LDS___  _RJO____  __RA___  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by:

      a.  removing the Change of Rater NCOER for the period May 2000 through
November 2000 from the applicant's OMPF;

      b.  declaring the period covered by the contested reports as non-rated
time by placing a non-prejudicial statement in the records of the
individual concerned to explain the non-rated period of service; and
c.  submitting his records, as thus corrected, to a duly constituted SSB
for promotion reconsideration under the criteria established by those
boards that did not select him for promotion to the rank of sergeant first
class.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
award of the Army Commendation Medal, or a higher award, to the applicant
on his PCS from West Point.





            Roger W. Able
                                                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104433                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/03/18                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT IN PART                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  195  |111.0100.0001                           |
|2.  196                 |111.0100.0002                           |
|3.  197                 |111.0100.0003                           |
|4.  46                  |107.0000                                |
|5.  66                  |107.0020                                |
|6.                      |                                        |