RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 November 2007
      DOCKET NUMBER:  AR20070015233


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Gerald J. Purcell             |     |Member               |
|     |Mr. John G. Heck                  |     |Member               |

      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, that the Board reopen his request
for reconsideration and immediately hear his appeal on the merits based on
the evidence submitted in his reconsideration request identified as ABCMR
Docket Number AR20060009084, in which he requested reconsideration of his
earlier petition requesting his date of rank (DOR) to lieutenant colonel
(LTC) be backdated to 26 May 2002; placement of a Memorandum of Explanation
regarding the following matters in his Official Military Personnel File
(OMPF):  a) unfair and unjust of his denial of promotion on 26 May 2002; b)
lost opportunity to compete for attendance at the Army War College and
battalion command; c) denied opportunity to receive two Officer Evaluation
Reports (OERs) as a LTC for a 2 1/2 year period as a direct result of
unlawful reprisal in violation of the Military Whistleblower Protection
Act; d) directing selection boards not to hold the absence of evaluation
reports or the opportunity to compete for battalion command and Army War
College and to take into account his former commander's unlawful reprisal
when he competes for promotion to colonel (COL).

2.  The applicant now submits an amended relief request that includes an
adjustment to his LTC DOR to 26 May 2002; promotion to COL with a DOR of
26 May 2005, or in the alternative referral of his file to the November
2007 COL Reserve Component Selection Board (RCSB) for promotion
consideration with a subsequent adjustment of his COL DOR to 26 May 2005;
or in the alternative convening a Special Selection Board (SSB) to promote
him to COL and subsequently adjusting his DOR to 26 May 2005; Issue of a
Certificate of Eligibility for Promotion to Brigadier General/0-7 (BG/0-7),
effective 26 May 2006; insertion of a letter of into his OMPF that informs
all future selection boards that he was the victim of an unlawful
Whistleblower Act reprisal in 2002, which delayed his promotion to LTC and
COL, and denied him the opportunity to complete for command opportunities
and War College attendance; and that he be paid all appropriate back pay.


3.  The applicant states, in effect, in the nearly 18 months since he
submitted his May 2006 reconsideration request to the ABCMR, which was
based on material error and injustice; multiple mistakes of law; numerous
manifest errors of fact,  additional new facts and evidence have developed
to further support for his claims.  Accordingly, he is now supplementing
the evidentiary record in this case with 11 new exhibits.

4.  The applicant now provides a 9 page self-authored letter with the 11
exhibits identified that supplements his 2006 reconsideration request,
which included a 47 page self-authored statement and the 40 exhibits
identified as new evidence.
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20040001900, on 4 August 2005.

2.  During its original review of the case, the Board found that although
the documents and argument provided by the applicant presented his case in
a manner so as to appear there was some sort of reprisal by his former
commander in the form of not recommending him for promotion, the evidence
submitted was incomplete and the official documents failed to conclusively
establish his commander reprised against him.  In short, the case was one-
sided and served only to present the applicant's unsubstantiated version of
events he claimed occurred.

3.  The Board also concluded that given the applicant was a field grade
officer and a civilian attorney it was reasonable to presume he was aware
of the procedures to file a grievance or to request a commander's inquiry
at the time of the alleged reprisal, when the evidence was still available
and the events were still fresh.  However, the applicant waited for more
than two years after the fact to make his claim known.  In addition, the
applicant requested his former commander not be contacted, which restricted
the Army's ability to fully understand the evidence.

4.  The Board finally found that there was no evidence to suggest that
there were any violations of law or regulations that served to deny the
applicant promotion and as a result, it concluded that absent convincing
evidence that the applicant was a victim of reprisal for making a protected
communication, there appeared to be no basis for relief.

5.  The applicant provides a 9 page self-authored statement and 11 exhibits
to supplement to the 47 page self-authored statement and 40 exhibits he
provided in his 2006 reconsideration request as his new argument and
evidence.  In his
9-page statement, he alleges the record contains plenty of highly
persuasive evidence (both direct and circumstantial) to support a Board
conclusion that denial of his promotion to LTC in May 2002 was more likely
than not caused by a reprisal from his protected communication.  He further
asserts that under the ABCMR's preponderance of evidence standard, which is
all that the governing law requires him to prove, the provisions of Title
10 of the United States Code, Section 1034 (10 USC 1034) is not applicable
and an Inspector General (IG) investigation is not required.
6.  In the 47 page self-authored statement he provided with his original
reconsideration request, the applicant contends that the original Board
decision in his case contained material error and injustice; multiple clear
mistakes of law; and numerous manifest errors of fact.  The applicant
asserts that the original Board decision may be reversed for any single one
of the at least 20 reasons he cites in his reconsideration request.  He
claims the original ruling was an embarrassing miscarriage of justice that
ought to be promptly rectified with an amended decision that complies with
the law.  He asserts that the Board should now reverse its decision, adjust
his dates of rank, and award him appropriate back pay and other relief.

7.  The applicant further claims that there are now seven sworn affidavits
submitted by reliable, credible commissioned officers, as well as
irrefutable documentary evidence that his former commander's clear
violation of the law substantially prejudiced his military career and
indeed as the Board previously recognized the evidence in this case is one-
sided, which really means there is literally no evidence in the record to
rebut his allegations and no adverse party impacted by his claims.

8.  The applicant also argues that the protections of the Military
Whistleblower Protection Act are meaningless if the Board does nothing to
enforce them in the face of overpowering direct evidence that an unlawful
reprisal has occurred.  If the Board does not correct his record to remedy
the obvious injustice in this case, the protections put in place by
Congress in the statute would be gutted and the Board would be neglecting
its affirmative duty to redress past violations of the Act, to deter future
violators and to protect victims of illegal retaliation for their protected
communications with senior officials and/or Members of Congress.  He claims
the facts in this case speak for themselves and there is overwhelming
evidence that he was going to be promoted to LTC on 26 May 2002 by his
former commander; however, something happened that caused his former
commander to do a "180" at the very last minute after more than three years
of repeatedly promising to promote him to LTC in May 2002.

9.  The applicant claims there are two versions of events that need to be
compared side-by-side to determine the truth regarding what happened in his
case:  (1) his claim of unlawful reprisal, as set forth in his amended
application, the seven affidavits in the record and the documents attached
to his reconsideration request as exhibits; and (2) his former commander's
self-serving, post hoc 27 March 2002 Memorandum, which he voluntarily
submitted to the Board with his initial application.

10.  The applicant also contends that on one hand he claims the former
commander retaliated against him for going behind his back and
communicating outside of his chain of command with a 3 star general and
Members of Congress. He states the former commander got angry because the
early demobilization of the unit meant he was facing imminent unemployment,
he might not qualify for a 20-year active duty retirement pension, and his
changes for promotion to BG/0-7 would likely be diminished without himself
and his unit on active duty full-time, in front of the senior leadership of
the National Guard Bureau (NGB) on a daily basis.

11.  The applicant contends the anger of his former commander manifested
itself as an unlawful reprisal in several ways over a very short period of
time in the weeks and months following the unit's demobilization from
active duty on
15 February 2002.  He contends the former commander's actions constituted
illegal reprisal in direct violation of the Whistleblower Act, but the
members of the Board have to tap into the human condition and apply their
common sense life experience to determine for themselves whether the
motivation for his former commander's behavior appeared to be revenge,
retaliation, reprisal, or something else.

12.  The applicant states on the other hand, in his former commander's
words, the vast sea change that caused him to take the actions identified
was explained in the following five flimsy, clearly pre-textual reasons,
fabricated after the fact to prove cover for his unlawful reprisal:  (1)
the applicant's brainstorming ways to demobilize the unit early; (2) the
applicant's working at his civilian job; (3) the applicant's me first
attitude; (4) performing civilian work during duty periods; and (5) not
planning for financial limitations of being an active duty MAJ.

13.  The applicant presents the conclusions that the former commander's
unlawful reprisal against him is readily apparent, as evidenced by
paragraph 4 of the NGB advisory opinion provided during the initial review,
which alluded to the fact the OERs received by the applicant as a MAJ were
outstanding and recommended his promotion to LTC as soon as eligible and to
the fact there were no adverse actions in his record that would have
precluded his promotion.  He also asserts that The Adjutant General (TAG)
of the State promoted all other MAJs junior to him based on unit vacancy
promotion, which caused him to transfer to the United States Army Reserve
(USAR) to seek the promotion to LTC that was denied by the Army National
Guard (ARNG).

14.  The applicant finally states that the Board should issue an amended
final decision that grants him all of the relief he has requested, which
includes the following:  promotion to LTC/0-5, effective 26 May 2002;
promotion to COL/0-6, effective 26 May 2005; a Certificate of Eligibility
for Promotion to BG/0-7; all appropriate back pay and allowances; and a
letter of explanation to all future personnel selection boards.

15.  The applicant provides four additional affidavits from officers who
served with him in the ARNG as new evidence.  These individuals all support
the argument made by the applicant that he was reprised against for
protected communications he had with senior NGB officers and Members of
Congress regarding the demobilization of their unit.  They further support
the applicant's claim that his former commander reprised against him for
these protected communications by withdrawing the applicant's unit vacancy
promotion recommendation.

16.  National Guard Regulation 600-100 provides the policies and procedures
governing promotion of ARNG officers other than general officers.  It
states, in pertinent part, that the promotion of ARNG officers is a
function of the State.  It further indicates that unit vacancy promotions
of qualified officers are based on the recommendations of the member's
immediate commander, properly endorsed by all commanders concerned and the
Adjutant General.

17.  Department of Defense Directive (DODD) Number (#) 7050.6, dated
20 November 1989, covered the Military Whistleblower Protection provisions
of 10 USC 1034.  This directive was reissued on 3 September 1992.  It
states, in pertinent part, 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.  (Note:  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.)

18.  The foregoing 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.

19.  10 USC 1034 also provides guidance for correction of records by a
board of correction of military records acting under Section 1552 of Title
10 in resolving an application made by a member or former member of the
Armed Forces who has alleged a personnel action prohibited as a result of a
protected communication.  It states, in pertinent part, that in resolving
such an application, a correction board shall review the report of the IG.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records)
prescribes the policies and procedures for correction of military records
by the Secretary of the Army, acting through the Army Board for Correction
of Military Records (ABCMR).  The ABCMR considers individual applications
that are properly brought before it.  Paragraph 2-2 provides guidance on
ABCMR functions.  It states, in pertinent part, that the ABCMR will decide
cases on the evidence of record.  It is not an investigative body.
Paragraph 2-5 provides guidance on administrative remedies and stipulates
that the ABCMR will not consider an application until the applicant has
exhausted all administrative remedies to correct the alleged error or
injustice.  Paragraph 2-9 contains guidance on the burden of proof and
states, in pertinent part, that the ABCMR begins its consideration of each
case with the presumption of administrative regularity and the burden of
proving an error or injustice rests with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration and the new evidence and
argument he has submitted has been carefully considered.  However,
notwithstanding the voluminous amount of independent evidence provided by
the applicant with his original application and the reconsideration
request, which all support his contentions, there is no evidence of record
corroborating his claims.
2.  The applicant's assertion that his case was not properly adjudicated by
the ABCMR in accordance with the governing law was also considered.
However, by law and regulation, the ABCMR reviews applications properly
brought before it and begins it's consideration of every case with a
presumption of regularity, which is a presumption that what the Army did
was correct.  The burden of proving otherwise rests with the applicant.
Further, the governing law and regulation stipulates that the Board is not
an investigative body and that it will not consider a case until all
administrative remedies have been exhausted.

3.  By law and regulation, the promotion of ARNG officers is a function of
the State and the promotion authority is the State Adjutant General.  In
addition, the provisions of 10 USC 1034 stipulate that in resolving a
protected communication application, a correction board shall review the
report of the IG, which confirms that contrary to the applicant's
assertions to the contrary, the Board's role in a reprisal case does not
begin until the investigative process defined in the law is completed.

4.  The evidence of record fails to show that the applicant ever attempted
to address the issue of his unit vacancy promotion through his ARNG chain
of command or the Adjutant General.  Further, after repeatedly being
advised of the proper avenue of redress under the Whistleblower Protection
Act, the applicant has continually refused to pursue his reprisal
allegations through the proper
IG investigative channels identified in the governing law.

5.  Notwithstanding the independent evidence provided by the applicant,
absent a proper investigation of all the facts through the proper
investigative channels defined by law, there is an insufficient evidentiary
basis to determine that an injustice has occurred or to render a
substantiated reprisal determination.  Further, absent any evidence showing
that the applicant properly addressed the issue of his unit vacancy
promotion through proper ARNG redress avenues, there is insufficient
evidence to conclude that his commander was not operating within his
command discretionary authority when he elected not to recommend the
applicant for a position vacancy promotion in 2002.

6.  Given the applicant's failure to pursue redress of his issues through
proper channels, the absence of an investigative substantiated finding of
reprisal and/or evidence of record that corroborates the independent
evidence submitted by the applicant, it is concluded that the applicant has
again failed to prove his case by a preponderance of the evidence.  As a
result, there is an insufficient evidentiary basis to support amendment of
the original Board decision in this case or to grant the additional relief
requested by the applicant.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WDP    __GJP __  __JGH __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number Docket Number AR20040001900, dated 4
August 2005, or to grant his amended relief request.




                                  _____William D. Powers____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009084                           |
|SUFFIX                  |                                        |
|RECON                   |AR20040001900-2005/08/04                |
|DATE BOARDED            |2007/11/27                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  1021 |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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