IN THE CASE OF:	

		BOARD DATE:	  23 April 2009

		DOCKET NUMBER:  AR20080018885 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Bronze Star Medal and the Combat Action Badge.

2.  The applicant states his commanders did not recommend him for an award for his service in Iraq in reprisal of his having made protected communications to  members of Congress in violation of Title 10 United States Code (USC), Section 1034 (Military Whistleblower Protection Act) and Department of Defense (DOD) Directive 7050.6 (Military Whistleblower Protection).  He also states the Department of the Army Office of The Inspector General (DAIG) concluded that his allegation of reprisal by his chain of command was substantiated.

3.  The applicant provides, in support of his application, copies of a letter from the DAIG to his Congressional representative; two DA Forms 638 (Recommendation for Award); page one of a State of Ohio, Adjutant Generals' Department, Columbus, OH, memorandum; a memorandum from the National Guard Bureau; an unsigned letter to the Department of Veterans Affairs (VA); a letter from the Governor's Office of Veterans Affairs, State of Ohio; and his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 23 February 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP).  He enlisted in the Regular Army on 8 December 1982 and served until he was released from active duty on 3 September 1992 and transferred to the USAR Control Group (Reinforcement).  On 8 September 1993, he enlisted in the Ohio Army National Guard and he was promoted to sergeant first class/pay grade E-7 on 1 June 2001.

2.  On 24 February 2003, the applicant was ordered to active duty with the 135th Military Police Company in support of Operation Enduring Freedom/Iraqi Freedom.  He served in Southwest Asia during the period from 15 May 2003 to 22 January 2004.

3.  On 13 October 2003, the applicant was told he would not be recommended for a service award for his time in theater.  The applicant reported to the 5th Corps IG on 9 October 2003 that he believed the refusal to submit a recommendation for an award was based on a protected communication on 
15 July 2003.  

4.  On 14 October 2003, the applicant was notified that having completed the required years of service he would be eligible for retired pay upon application at age 60.

5.  On 23 February 2004, the applicant was released from active duty.  He had completed 1 year of active service that was characterized as honorable.

6.  On 16 May 2004, the applicant was discharged from the Ohio Army National Guard and transferred to the Retired Reserve.

7.  On 22 August 2006, the National Guard Bureau (NGB) submitted a memorandum for the DAIG, Subject: NGB Review of Report of Initial Investigation (ROII) and the purpose was to provide an analysis of eight allegations of reprisal committed against the applicant.

8.  The ROII indicates there was no question that there was a protected communication and that the responsible management official (RMO) knew of the protected communication prior to all alleged adverse actions.  The ROII found the applicant's allegation that he was told he would not be recommended for a service award for his time in theater after making a protected communication, and the denial of the award on that basis was in violation of Title 10 USC, Section 1034 and DOD Directive 7050.6 was substantiated.

9.  The investigating official determined the decision not to recommend the applicant for an award was an unreasonable one and one that appeared to be based in the heat of the moment.  

10.  The investigating official determined the applicant served in the theater for the entire deployment and made contributions commensurate with the position to which he was assigned as well as those assigned to a junior commissioned officer.  He performed the duties of a platoon sergeant and a platoon leader in a combat zone and his duties included the Commander of the Al Daura and Al Jauyfir Police Stations, supervisor of riverboat patrol operations and force protection operations at Warrior Compound.  The investigating official determined the applicant clearly merited consideration for a Bronze Star Medal in accordance with the unit's policy that all Soldiers will receive a service award unless they have accepted punishment under the Uniform Code of Military Justice (UCMJ) or are in the process of UCMJ action and noted that only seven Soldiers, of which the applicant was one, did not receive an end of tour award.

11.  Based on the preponderance of the evidence gathered, the investigating official determined the applicant's commander failed to make a recommendation for a service award on behalf of the applicant, and that failure was contrary to the unit policy established and precedence set through other recommendations made on behalf of members of the unit.

12.  In a letter, dated 3 October 2006, from the DOD Inspector General (DODIG) to the DAIG, the DODIG agreed the applicant's commander had reprised against him by not recommending him for an award for his service in Iraq.

13.  A DA Form 638, submitted by the applicant, dated 21 November 2003, signed by a battalion staff officer recommended the applicant for the award of the Bronze Star Medal for exemplary performance of duty in support of Operation Iraqi Freedom during the period from 20 February to 20 December 2003.

14.  A second DA Form 638, undated, was submitted by the applicant signed by the same battalion staff officer recommending the applicant for the award of the Bronze Star Medal for meritorious service for exemplary performance of duty in support of Operation Iraqi Freedom during the period from 20 February 2003 to 
21 January 2004.

15.  Neither of the DA Forms 638 indicate that the applicant was personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement.

16.  Army Regulation 600-8-22 (Military Awards) serves as the authority for military decorations and awards.  It states, in pertinent part, that military decorations are awarded in recognition of heroism, meritorious achievement, or meritorious service.  No individual is automatically entitled to an award upon departure from an assignment.  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.  

17.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  

18.  Army Regulation 600-8-22 also provides that the requirements for award of the Combat Action Badge are branch and MOS immaterial.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations, or performing offensive combat operations is not required to qualify for the Combat Action Badge.  However, it is not intended to award the Combat Action Badge to all Soldiers who serve in a combat zone or imminent danger area.  The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  The Soldier must be personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement.  The Soldier must [not] be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or the Combat Medical Badge.

19.  DOD Directive Number 7050.6, dated 20 November 1989, covers 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.  (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).

20.  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.

21.  Army Regulation 20-1 (Inspector General Activities and Procedures ) provides, in pertinent part, that anyone (military, Department of the Army (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.

DISCUSSION AND CONCLUSIONS:

1.  The Board supports the DOD policy of unrestricted communication with Congress, the IGs, and various Government investigators, etc., 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 indicates the applicant made protected communications; that an investigation was conducted which determined that a favorable personnel action was withheld in the form of not recommending the applicant for a service award for his service in Iraq, and that the officials responsible for failing to take favorable personnel action were aware that the applicant had made protected communications.  Further, it appears that the favorable personnel action would have been taken if the protected communications had not been made.

3.  The applicant’s request to be awarded the Bronze Star Medal appears to have merit.  While there is no entitlement to an end of tour award, the investigating officer noted in his investigation that it was command policy that all personnel receive an end of tour award unless there had been action taken against a Soldier under the UCMJ and that only seven Soldiers, of which the applicant was one, did not receive an end of tour award.

4.  Inasmuch as the investigating officer, who was on-site at the time, opined that the applicant clearly merited consideration for award of the Bronze Star Medal, it would be in the interest of justice to award the applicant the Bronze Star Medal for meritorious service in support of Operation Enduring Freedom and Iraqi Freedom

5.  The DA Forms 638 the applicant provided contain two different periods for award of the Bronze Star Medal.  The DA Form 638, dated 21 November 2003, for the period from 20 February to 20 December 2003 is determined to be the correct period for the award; this form appears to have been prepared at the time the applicant was in Iraq.  

6.  The fact that the applicant served in a combat zone or imminent danger area does not in of itself establish eligibility for the Combat Action Badge.  The DA Forms 638 submitted by the applicant do not provide evidence that  the applicant was personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement.  Therefore, there is insufficient evidence to award the Combat Action Badge in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ____X___  GRANT PARTIAL 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 awarding him the Bronze Star Medal for exemplary performance of duty while assigned to the 135th Military Police Company in support of Operations Enduring Freedom and Iraqi Freedom during the period 20 February to 20 December 2003.

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 the Combat Action Badge.  




      _______ _ X  _______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080018885



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ABCMR Record of Proceedings (cont)                                         AR20080018885



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