BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090010073


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 a number of corrective actions predicated on a determination that his complaint of reprisals under the Military Whistleblower Protection Act, Title 10, U.S. Code, section 1034, as amended, is substantiated.  Specifically, he requests the Army Board for Correction of Military Records (ABCMR):

* "overturn" the DOD Inspector General's (IG's) refusal to investigate his whistleblower's complaint for failure to timely file

* reconsider two previous ABCMR denials to expunge a "faint praise" officer evaluation report (OER) for the period 20030605-20040515

* place his records before a special selection board (SSB) for promotion reconsideration to colonel

* approve continuous Aviation Career Incentive Pay (ACIP) from August 2005 to present

* reimburse some $35,000.00 for security upgrades which he made to his home in Bogota, Colombia, and which the U.S. Military Group (USMILGRP)-Bogota authorized, then refused to pay in retaliation for his protected (whistleblower) communication to the Government Accountability Office (GAO) concerning poor USMILGRP property accountability

* authorize a permanent change of station (PCS) retirement move from his place of duty to his home in Verde Sol, Melgar, Colombia

* review Defense Finance and Accounting Service (DFAS) policy regarding basic allowance for housing (BAH) as it relates to 21 and 22-year old dependents who are full-time students

2.  The applicant states, in effect:

* while serving as a Team Chief, Security Assistance Training Management Organization (SATMO), Fort Bragg, NC, for duty with USMILGRP-Bogota, he made protected communications to the GAO and U.S. Army Criminal Investigation Command (USACIDC) for which he was reprised against

* USMILGRP-Bogota agreed to fund security improvements to a home he purchased in Melgar, Colombia, then reneged, referring him to the Department of State and the U.S. Embassy which refused to pay

* receipt of a "faint praise" OER after the SATMO country team manager told USACIDC investigators he was a "marginal performer" who ran "rough-shod over [his] team" and a former USMILGRP commander alleged he "had trouble communicating in Spanish.  Never seemed to be around.  Busy working on security upgrades to his house"

* in an act of retaliation, USMILGRP-Bogota removed him from his SATMO Team Chief assignment which was coded for total operational flying duty credit (TOFDC), which later helped the U.S. Army Human Resources Command's (AHRC) Incentive Pay Branch in Alexandria, VA, justify termination of his ACIP

* ABCMR Record of Proceedings Docket Number AR20080011488 denied his request for continuous ACIP

* when viewed in light of a favorable whistleblower's protection status, the loss of his TOFDC assignment in Colombia can be seen as reprisal affecting his ACIP

* as a result of a conspiracy between the USMILGRP-Bogota and the U.S. Embassy in failing to approve repayment for security upgrades to his 


Melgar, Colombia, home, the U.S. Embassy has refused to list his home on the approved lease housing list

* ABCMR should authorize a retirement move from his final duty station to Melgar, Colombia

3.  The applicant provides:

* a self-authored 12-page supplement, dated 30 April 2009

* a self-authored memorandum, dated 30 April 2009, subject:  Whistle Blower Protection Request, and additional pages

* a self-authored memorandum, dated 30 April 2009, subject:  Section 2 Atmospherics Executive Summary, and 10 additional pages

* a self-authored memorandum, dated 30 April 2009, subject:  Section 3 ACIP-in-Work Executive Summary

* a self-authored memorandum, dated 30 April 2009, subject:  Section 4 Physical Security Reimbursement Executive Summary, and eight additional pages

* a self-authored memorandum, dated 30 April 2009, subject:  Section 5 Overseas Housing Allowance Reference Executive Summary

* a self-authored memorandum, dated 30 April 2009, subject:  Section 6 BAH Executive Summary

* a self-authored memorandum, dated 30 April 2009, subject:  Section 7 Independent Correction Request Executive Summary, and seven additional pages

* a self-authored memorandum, dated 30 April 2009, subject:  Section 8 No Board Executive Summary (BCMR #20050009253)

* a self-authored memorandum, dated 30 April 2009, subject:  Section 9 Attorney Officer Special Review Board (OSRB) Executive Summary

* a self-authored memorandum, dated 30 April 2009, subject:  Section 10 Attorney OER Executive Summary (ABCMR #20070013560)

* a self-authored memorandum, dated 30 April 2009, subject:  Section 11 Attorney No Board Executive Summary (ABCMR #20060015005)

* a digital versatile/video disc-recordable (DVD-R) with 4.71 gigabytes of storage capacity, containing 11 separate sections of files with 229 megabytes of data referenced in the sections listed above

4.  The ABCMR includes in its analysis of this case and incorporates by reference its decisions in AR20050009253 (promotion), AR20060015005 (promotion), AR20070013560 (OER for the period 20030605-20040515), and AR20080011488 (ACIP).

CONSIDERATION OF EVIDENCE:

1.  Army Regulation 15-185 (Army Board for Correction of Military Records), the regulation under which the ABCMR operates, sets forth procedures for processing requests for correction of military records.  Paragraph 2-15a governs requests for reconsideration.  This provision of regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR if the request is received within one year of the original decision and it has not previously been reconsidered.  Such requests must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration.

2.  In accordance with Army Regulation 15-185, the following is noted concerning the applicant's current reconsideration request dated 30 April 2009.  The issue of his dispute with DFAS over BAH payments while he was stationed in Korea was resolved, but not to the applicant's satisfaction.  However, in his memorandum, dated 30 April 2009, subject:  Section 6 BAH Executive Summary, he states, "[Applicant] is not requesting ABCMR assistance with further BAH payment, only a look at DFAS policy and consideration for time spent combating this injustice."  This request is outside the statutory authority of the ABCMR.  The ABCMR does not establish DFAS policy and has no authority to change DOD rules to ease an individual's challenge to pay policy.  As this issue has no bearing on any alleged reprisal, it is irrelevant and will not be further considered.

3.  The applicant is a Regular Army lieutenant colonel with a date of rank of 1 September 1999.  He is currently assigned to the Division G-3, 1st Cavalry Division, Fort Hood, TX.  His recent assignment history includes:

* serving as a U.S. Army Reserve (USAR) Individual Mobilization Augmentee and USAR Command and General Staff College instructor

* entering active duty on 8 January 2002 as a post 11 September 2001 volunteer

* serving as an aviation brigade executive officer in Korea from around January 2002 to around June 2003

* serving as a SATMO Team Chief, Fort Bragg, NC, for duty with USMILGRP-Bogota from around 20 June 2003 to around June 2004

* serving as a 91st Division, USAR, technical assistance field team chief and chief of staff from around June 2004 to around January 2007

* serving as a test officer with the U.S. Army Operational Test Command, Fort Hood, TX, from around March 2007 to around July 2008

* serving with the 1st Cavalry Division in Iraq from around June 2008 to around January 2010

4.  The applicant arrived in Colombia for assignment with the USMILGRP as a SATMO tactical assistance fielding team chief in Melgar, Colombia.  Tour of duty lengths vary depending on status – temporary duty (TDY)/temporary change of station (TCS)/permanent change of station (PCS).  PCS personnel generally serve a 2-year tour in Colombia (with an option for an extension of 1 year).  TCS personnel serve for 1 year and TDY personnel serve for 6 months.  The applicant, by his own admission, was on a 1-year assignment; therefore, he fell into the TCS category.

5.  Shortly after arriving in Colombia, the applicant purchased a home in the Verde Sol community of Melgar.  He had a housing security survey completed on what appears to be an Embassy Regional Security Office (RSO) form.  Following the survey, he contracted with local National craftsmen for sundry security upgrades which he valued at approximately U.S. $35,000.  Concerning the security improvements, he alleges:

* the USMILGRP directed them and accepted responsibility for reimbursement

* once he contacted the GAO about property accountability in the USMILGRP, the USMILGRP refused reimbursement in retaliation

* he was ultimately "put in an inter-agency finger pointing do-loop" with no success

6.  The U.S. Embassy, Bogota, addressed the issue of the applicant's reimbursement for residential security upgrades in a 23 July 2004 memorandum to the USMILGRP.  The U.S. Embassy establishes policies and procedures and outlines the roles and responsibilities for staff housing for U.S. personnel in Colombia:

* U.S. Government personnel are provided with leased housing or a housing allowance

* the U.S. Embassy General Services Office (GSO) selects housing and negotiates and signs leases for incoming personnel

* the Inter-Agency Housing Board (IAHB) assigns housing for U.S. Embassy and USMILGRP staff

* the RSO inspects housing for adequacy of security

* USMILGRP staff sign leases for the housing they find and are responsible for paying landlords from their housing allowance – the cost of security upgrades is negotiated and included in the terms of the lease

The Embassy provided that neither GSO nor the IAHB were involved in the applicant's selection and purchase of his home; therefore, GSO did not request an official security survey from the RSO.  The GSO refused to reimburse for the cost of the security upgrades citing Department of State Standardized Regulations.

7.  Upon assumption of team chief duties in Melgar, the applicant was charged with supervising the activities of eight warrant officers in training Colombian military aviators.  He states he was at odds with many of the warrant officers by insisting on maintaining "Regular Army policies and practices."  Some of the contentious areas involving the warrant officers included:

* stopping them from reporting outside proper channels

* stopping them from flying relatives on Colombian Air Force aircraft

* stopping a non-aviation warrant officer from flying Colombian aircraft

* investigating a possible theft of night vision goggles

* auditing TDY claims of warrant officers

* directing warrant officers not to stay in first-class hotels while TDY as a money-saving measure, even though per diem rates were sufficiently high enough to cover the costs

8.  The applicant states he also engendered the animus of his superiors by repeatedly requesting property records for his team in order to conduct inventories.  After requesting property records for the sixth time, he contacted GAO FraudNet, a GAO fraud, waste, and abuse hotline via telephone, facsimile, and internet.

9.  On 30 March 2004, the applicant sent a lengthy electronic mail (email) message to the Special Warfare Command (SWC) IG at Fort Bragg.  In his email, he made allegations against his USMILGRP chain of command, U.S. Embassy staff, and the warrant officers whom he supervised.  He mentioned that he filed an on-line request for assistance with the GAO FraudNet and his command may have received the questions from GAO.  He believed that was the reason for a denial of a tour extension and expeditious reassignment prior to his eligibility date to return from overseas.

10.  The SWC IG recommended the applicant, with the many allegations, needed to identify critical issues and use the chain of command and appropriate agencies to resolve the ones for which they are responsible.  The SWC IG informed the applicant that his investigation of the complaint would require assistance from the U.S. Southern Command IG and DOD IG.  The SWC IG cautioned him to be careful with accusations, formulate his request, and submit it on the proper form (DA Form 1559 – IG Action Request) to the proper IG at U.S. Southern Command.  There is no indication applicant followed through on that advice at that time.

11.  The contested OER is an 11-month permanent change of station OER covering the period 5 June 2003 through 15 May 2004 for duties as the Chief, Technical Assistance Field Team, SATMO at Fort Bragg, North Carolina with duty in Colombia.  This OER was authenticated by the rater, the SR, and the applicant in Part II (Authentication) on 7 July 2004.     

12.  In Part VIIa (Evaluate the rated officer’s promotion potential to the next higher grade) of the OER, the senior rater (SR), a colonel, rated the applicant as “Best Qualified.”  In Part VIIb (Potential compared with officers senior rated in same grade), the SR rated the applicant as “Center of Mass.”  In Part VIIc (Comment on Performance/Potential) the SR made the following comments: “Noteworthy performance by a talented, skillful officer.  LTC [the applicant’s name] possesses superb aviation skills.  He is technically competent and sincerely committed to the mission.  The efforts of Ken’s team contributed directly to the creation, for the first time in Colombia, of a joint Colombian Military and National Police helicopter training school.  In addition, LTC [the applicant’s name] managerial skills reduced to zero the days lost due to maintenance and brought the UH-60 operational rate up to U.S. standards.  Potential to perform increasingly demanding missions, continue to challenge.”  The OER was not referred by the SR.

13.  On 8 June 2008, the applicant submitted an allegation of whistleblower reprisal to the III Corps IG located at Fort Hood, TX.  He alleged his chain of command in Bogota, Colombia, took unfavorable personnel actions against him in reprisal for his protected communication to the GAO, specifically:

* by refusing to honor a pledge to reimburse security upgrades to his personal residence

* by issuing him a "faint praise" OER for the period 20030605-20040515

* by expeditiously reassigning him out of Colombia

The applicant also alleged a possible Special Operations Command leadership conspiracy between Bogota and Fort Hood which resulted in his early reassignment from the U.S. Army Operational Test Command to the 1st Cavalry Division in 2008.  The III Corps IG forwarded the applicant's complaint to the DOD IG for review and appropriate action.

14.  The DOD IG responded to the applicant by mail on 5 November 2008.  The response stated:

We consider your allegations of reprisal to be untimely.  Title 10, U.S. Code, section 1034, specifies that investigations of reprisal are not required if the period between the time the military member becomes aware of the unfavorable action and the filing of his/her reprisal allegations with the IG exceeds 60 days.  You became aware of the last action you believe was taken in reprisal in February 2005.  However, you did not file your reprisal complaint with an IG until June 8, 2008….

The ability to investigate allegations of reprisal depends heavily on the accuracy of testimonial evidence.  Witnesses' ability to accurately recall details of events is significantly degraded by the passage of time.  This presents a significant obstacle to our ability to conduct an accurate and balanced investigation.  Therefore, because nearly 4 years have elapsed between the time you became aware of the adverse actions taken against you and the time you filed your reprisal allegations, we decline to initiate an investigation into your allegations.

The DOD IG declination to investigate effectively disallowed whistleblower's protection status to the applicant.

15.  The applicant next filed a request with the Deputy Under Secretary of Defense for Program Integration under the provisions of DOD Directive 5505.06 (Investigations of Allegations Against Senior Officials of the Department of Defense) seeking review of the actions of an active duty brigadier general and a retired colonel as relates to reprisals taken against him as a whistleblower.  The applicant was apprised of DOD Directive 7050.06, paragraph 5.2.2, and told to apply to the Air Force Board for Correction of Military Records [sic] for review.

16.  The Bureau of Diplomatic Security (DS) comprises the law enforcement component of the Department of State.  DS Special Agents are sworn law enforcement officers with statutory authority to investigate passport and visa fraud; conduct counterintelligence investigations; and protect the Secretary of State, foreign dignitaries, and other designated officials.

* the DS Anti-Terrorism Assistance Program provides training to selected foreign law enforcement and security officials, empowering U.S. allies to stop terrorists and other organized criminal groups on their soil

* over 440 DS agents serve at embassies and consulates worldwide.  The senior agent at an overseas post is referred to as the Regional Security Officer, or RSO.  The RSO reports directly to the Ambassador through the Deputy Chief of Mission and is responsible for the protection of all U.S. personnel, facilities, and classified information under the purview of the Chief of Mission

17.  The Department of State Standardized Regulations provides the following under sections 136 and 137 (Personally Owned Quarters and Allowance for Necessary and Reasonable Initial Repairs, Alterations, and Improvements Under Unusual Circumstances):

	a.  When quarters occupied by an employee are owned by the employee or the spouse, or both, an amount up to 10 percent of the original purchase price (converted to U.S. dollars at the original exchange rate) of such quarters shall be considered the annual rate of his/her estimated expenses for rent.  Only the expenses for heat, light, fuel (including gas and electricity), water, garbage and trash disposal, and in rare cases land rent, may be added to determine the amount of the employee's quarters allowance in accordance with section 134.  The amount of the rental portion of the allowance (up to 10 percent of the purchase price) is limited to a period not to exceed 10 years, at which time the employee will be entitled only to the above utility expenses and garbage and trash disposal, plus land rent.

	b.  The purpose of this allowance is to cover, under unusual circumstances, the cost of initial repairs, alterations, and improvements which are incurred within 3 months of a rental agreement and which are basic to making the employee's first permanent residence at a post habitable.  Before granting the initial repair allowance, the head of the agency shall determine that:  (1) the lessor will not assume the cost of the repairs; (2) the quarters are below reasonable standards of health, safety, or comfort; and (3) no adequate rental quarters are known to be available locally at a rate which, when combined with estimated utility and tax costs, is within the maximum authorized allowance for the employee concerned.

	c.  The initial repair allowance, which must be approved administratively in advance, might include reimbursement for such housing related expenses as:  (1) repairs required to eliminate leakage or drafts, to fortify or replace structural components, or to replace defective plumbing, wiring, heating, lighting or other essential facilities or equipment; (2) alterations to provide improved access or ventilation and light, such as new or additional windows and doors; and (3) improvements such as plumbing, heating, or lighting fixtures and equipment, screening, pest control, insulation where required by extreme climate, painting where required for hygienic reasons or in connection with authorized repairs or alterations, and other changes to make the quarters reasonably habitable.  The allowance is not designed to cover redecoration, repair, renovation, or replacement of furnishings, erection of additions to any structure or of garages, or the removal of garages or other outbuildings or improvement of the grounds.

18.  The Department of State Foreign Affairs Manual provides the following information concerning security upgrades in volume 12, paragraph 333.3 (Residential Security Upgrades):

	a.  RSO's and/or designees are required to evaluate all prospective residences for compliance with relevant residential security standards.  In evaluating residences, they must adhere to the following priority list in approving purchase or lease of a residence.

* residence meets all applicable residential security requirements for the post's threat ratings and no additional residential security upgrades are required.  No further action required

* although residence does not meet all applicable residential security standards, upgrades will be installed or paid for by owner and/or landlord.  No further action required

* although residence does not meet all applicable residential security standards, upgrades can be provided by post out of existing residential security program resources.  Director of Security/Overseas Protective Operations/Facility Protection Division (DS/OPO/FPD) approval must be obtained for allocation of resources

* residence does not meet all applicable residential security standards and upgrades cannot be provided by post out of existing residential security program resources.  DS/OPO/FPD approval and funding must be obtained prior to purchase or lease.  DS/OPO/FPD will consider funding cost-effective residential security improvements which are required by security standards for the threat level.  In these situations, as a general rule, posts should strive to obtain properties that will be retained in the housing pool over multiple employee tour cycles.  However, DS/OPO/FPD may grant exceptions in a limited number of cases if it determines it is necessary to fund security upgrades even though a residence is unlikely to house U.S. Government personnel for a minimum of 5 years

* residence does not meet and cannot be made to meet the required security standards.  If no other acceptable alternative is available, post may initiate an exception request by following applicable procedures.  No action should be taken to purchase or lease the property until the post is notified that the exception has been officially approved

	b.  If a disagreement arises at post concerning the security approval or residential security upgrade of a residence, DS/OPO/FPD should be informed of the dispute and it should be discussed by the post IAHB.  DS/OPO/FPD should be informed of any proposed resolution.  Under no circumstances should the post lease, purchase or occupy the property for any agency prior to receipt of DS/OPO/FPD's comments on the proposed resolution.

19.  Army Regulation 20-1 (Inspector General Activities and Procedures) prescribes policy and mandated procedures concerning the mission and duties of The Inspector General (TIG) of the Army.  It provides Title 10, U.S. Code, section 1034, revised by the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 and effective 16 October 1998, extends authority to IG's within the Military Departments to grant whistleblower protection for reprisal allegations presented directly to them by service members.  This law, implemented by DOD Directive 7050.6, requires service IG's to investigate allegations of individuals taking, or threatening to take, unfavorable personnel actions or withholding, or threatening to withhold, favorable personnel action as reprisal against a member of the Armed Forces for making or preparing a protected communication.  A protected communication is:

* any lawful communication to a Member of Congress (MC) or an IG

* a communication in which a member of the Armed Forces communicates information that the member reasonably believes provides evidence of a violation of law or regulation, such as sexual harassment or unlawful discrimination, gross mismanagement, a gross waste of funds or other resources, an abuse of authority, or a substantial and specific danger to public health or safety when such a communication is made to any of the following:

* an MC, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization

* any person or organization in the chain of command

* any other person or organization designated in accordance with regulations or other established procedures to receive such communications (TIG has limited this authority to one level above that of the IG servicing the complainant, such as Army commands, corps, armies, and so on)

20.  Army Regulation 20-1 requires the following questions be answered in order to determine whistleblower protection status:

* was there a protected communication?

* was there an adverse personnel action taken against the service member?

* did the manager in charge of the adverse personnel action know about the service member's protected communication?

* was there an independent basis for the adverse personnel action?

21.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  It implements that portion of section 1034 of Title 10 of the U.S. Code and that portion of DOD Directive 7050.6 (Military Whistleblower Protection) that pertain to actions by the ABCMR.

22.  Title 10, U.S. Code, section 1034, provides that when an applicant suffers a prohibited action (i.e., reprisal), the military correction board may review the matter.  The board:

* shall review the report of the IG

* may request the IG gather additional evidence

* may receive oral argument, examine and cross-examine witnesses, take depositions, and, if appropriate, conduct an evidentiary hearing (in other words, it may also consider a Military Whistleblower Protection Act claim even without the existence of a formal IG determination or, when one exists, conduct further investigation.)

23.  When an applicant has suffered reprisal under Title 10, U.S. Code, section 1034, and DOD Directive 7050.6, the ABCMR may recommend to the Secretary of the Army that disciplinary or administrative action be taken against any Army official who committed an act of reprisal against the applicant.  The facts must involve reprisals under the Military Whistleblower Protection Act, confirmed by the DOD IG under Title 10, U.S. Code, section 1034, and DOD Directive 7050.6.

24.  The Joint Federal Travel Regulation provides in chapter 5, paragraph U5130, that a retiring member may select a home anywhere within the United States, or the place outside the United States from which the member was initially called to active duty, or any other place (however, allowances paid must not exceed those payable had the member selected a continental United States location).

25.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing Army evaluation reports for officers and noncommissioned officers.  It states, in pertinent part, that Part VII of the OER provides for the SR’s evaluation of the rated officer’s performance and potential and is intended to capitalize on the SR’s additional experience, broad organizational perspective, and tendency to focus on the organizational requirements and actual performance results. 

26.  Army Regulation 623-3 states an evaluation report accepted by Headquarters, Department of the Army and included in the official record of a rated Soldier is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparations.  The burden of proof when submitting an appeal rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's active issues are:

* the SR gave the applicant "faint praise" for the OER for the period 20030605-20040515 as reprisal for his communication to GAO

* his failure to be promoted to O-6 stemmed in part because of this OER

* early termination of his tenure as SATMO Team Chief in Colombia and refusal to grant him an extension past 1 year was done in reprisal

* his early termination in Colombia had the added purpose and effect of depriving him the TOFAD necessary to make his 18-year gate for ACIP

* authorization for a PCS retirement move from his place of duty to his home in Verde Sol, Melgar, Colombia

* the ABCMR "overturn" the DOD IG's refusal to investigate his whistleblower protection complaint for failure to timely file

* reimbursement of some $35,000.00 for security upgrades which he made to his home in Bogota, Colombia, and which the USMILGRP-Bogota authorized, then refused to pay in retaliation for his protected (whistleblower) communication to the GAO concerning poor USMILGRP property accountability

2.  The applicant is not retired and has not yet made application for retirement.  The fifth issue is not relevant.  However, the Joint Federal Travel Regulation is explicit concerning home of selection for retirement.  Assuming the cost of moving the applicant from his final duty assignment to Melgar, Colombia, would exceed the cost of a continental United States move, he cannot be paid the higher amount.  The applicant should deal with this issue at the time of retirement.

3.  The applicant made an untimely request for whistleblower's protection status and the DOD IG refused to investigate his allegations of reprisal.  In accordance with DOD Directive 7050.06, an authorized IG receiving a complaint of reprisal submitted more than 60 days after the member became aware of the personnel action at issue may, nevertheless, consider the complaint based on compelling reasons for the delay in submission or the strength of the evidence submitted.  The 60-day statute of limitations is, therefore, only applied when the DOD IG has conducted a preliminary review and determined that no compelling reason for delay was presented and/or the strength of the evidence submitted did not warrant further investigation.  This appears to be the case in this instance.

4.  Insofar as protected communications, Army Regulation 20-1 states a protected communication is defined as a lawful one between a Soldier and:

* an MC, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization

* any person or organization in the chain of command

* any other person or organization designated in accordance with regulations or other established procedures to receive such communications (TIG has limited this authority to one level above that of the IG servicing the complainant, such as Army commands, corps, armies, and so on)

The applicant's communication with the GAO does fall under a communication with Congress since the GAO is an extension of that body.  Also, the statement he provided to USACIDC is protected because Title 10, U.S. Code, section 1034, and DOD Directive 7050.6 do not limit protected status to those who initiate a complaint.  It is enough that a witness provides information to Congress, an IG, or DOD law enforcement entity of a violation of law or fraud, as the applicant alleged.

5.  The ABCMR may revisit the determinations by an IG concerning a Whistleblower Protection Act complaint and may, on its own accord, investigate and adjudicate a Whistleblower Protection Act claim.  In this case, the Board finds insufficient evidence that the applicant's command in Colombia reprised against him for his GAO complaint; hence, since all his claims of relief are premised on reprisal, the Board denies his request on this basis.

6.  The applicant contends he complained to the GAO and the USACIDC about property accountability within the USMILGRP.  As a result, adverse personnel actions were taken against him, to include a "faint praise" OER, a refusal to reimburse residential security upgrades, and his early departure from Colombia.

7.  The applicant has not shown the OER was issued as a reprisal:

* the request for reconsideration, even styled as a Whistleblower Protection Act claim, is untimely; he failed to file for reconsideration within 1 year of the ABCMR's prior decision concerning his OER

* the applicant has offered nothing substantially new to overturn the decision by the OSRB and ABCMR; the OSRB interviewed the senior rater who related the applicant's performance was not up to the level to warrant a promotion recommendation, citing morale problems, an attempted "sting" operation to uncover night vision goggles stolen by local Nationals (the applicant wasn't in law enforcement or intelligence), and the applicant's preoccupation with his home over his assigned duties.  Testimony obtained by the OSRB from others assigned to the unit and the RSO bore out these observations

* the applicant has provided insufficient evidence to show he performed better than reflected in his OER and his latest application fails to provide additional evidence sufficient to show that the rating he received was not fairly tied to his performance

* the rating received fairly recognizes his performance and is on par with many of his OER's before and after this rating period

* since the ABCMR finds no reprisal issue with the OER, there is no basis to reconsider the ABCMR's prior denials of his request (AR20050009253 and AR20060015005) for an SSB or direct promotion to colonel and the rationale in those prior cases stands

8.  The applicant has not shown his nonselection for promotion to O-6 stemmed from a reprisal action and he is not entitled to an SSB:

* the applicant failed to seek reconsideration of the ABCMR's two prior denials of these actions, so this request is untimely and is rejected for that reason

* notwithstanding the untimeliness, the applicant failed to show his OER for his time in Colombia was unfair, unjust, or the product of reprisal (see above)

9.  The applicant has not shown the refusal to pay for his security upgrades on his Colombian home was an act of reprisal:

* it is clear from the evidence presented that the applicant did not follow proper procedures when he purchased a home and upgraded security.  He provided a 25 August 2003 memorandum from the USMILGRP to the U.S. Embassy wherein the USMILGRP approved his home purchase request and forwarded it to the ambassador for final approval.  The document shows no action at the U.S. Embassy level

* furthermore, the U.S. Embassy GSO, in a 23 July 2004 memorandum, explained housing policy and provided that the U.S. Embassy was never involved in the purchase decision and provided that State Department regulations did not permit reimbursement.  The applicant was the victim of his own failure to determine the proper procedures for home buying by U.S. Government staff in Colombia

* the applicant has shown no nexus between any action by the State Department in denying his repayment for housing expenses and the alleged pattern of reprisal by his senior rater and other Army officials.  The evidence shows the State Department applied its rules and denied the applicant on that basis

* the applicant's request for consideration of this Whistleblower Protection Act claim is beyond the jurisdiction of the ABCMR in that the alleged reprisal involved denial by the State Department of his security upgrade reimbursement; the proper avenue for the applicant on this issue is with the State Department IG, as the ABCMR may not correct a State Department record to show the applicant was entitled to payment

10.  The applicant failed to show his early return from and denial of an extension in Colombia resulted from an act of reprisal:

* the applicant was transferred from Korea to SATMO, Fort Bragg, with duty in Colombia.  The date of assignment was 20 June 2003 and he was on a 1-year TCS tour

* email between AHRC, Alexandria, VA, and the applicant reveals AHRC was instructed to give the applicant a May/June departure from Colombia.  AHRC decided on a 15 June 2004 reporting date for his new assignment, giving him a May departure from Colombia.  This appears to be within the normal range for his 1-year TCS assignment

* the applicant failed to show that extensions were automatic; in fact, they never are.  The applicant's performance while in theater, as evidenced by the OSRB inquiry, did not live up to expectations in that more than one source indicated his tenure as SATMO Team Chief was plagued by morale problems, an inability to work well with local Nationals, and involvement in activities (the "sting" operation) beyond his duty description and authority

11.  The denial of the applicant's request for flight pay was not an act of reprisal:

* his claim that he would have logged 14 more months of flight time had he remained in Colombia has nothing to do with a reprisal action as the decision to deny an extension of the Colombian tour and the applicant's early return were acceptable and authorized actions

* the applicant failed to draw any nexus from the alleged claim of reprisal for his communication with GAO and USACIDC and the denial of his ACIP request.  The record lacks any proof officials at AHRC Incentive Pay Branch, AHRC IG, and others denied the applicant ACIP at the behest of SATMO officials or because of his communications with GAO and USACIDC

* the applicant has a pending reconsideration request concerning ACIP (AR20100013087).  In as much as his claim for ACIP rests on reprisal, it should be denied; any other new issues and evidence on the merits of his ACIP claim will be addressed in that case

12.  The ABCMR has no authority to "overturn" a decision by the DOD IG to dismiss the applicant's claim for being untimely.  The ABCMR, however, may consider independently Whistleblower Protection Act claims and, having done so in this case, has determined the applicant's many and varied claims of error do not support a claim for reprisal.

13.  It's worth noting:

* this case took an extraordinarily long time to process because the issues, as presented, are disjointed, confusing, and supported by a plethora of documents.  In essence, the applicant weaved together several perceived wrongs to support a claim of whistleblower reprisal when, in fact, no connection exists

* the ABCMR does not establish Army or DOD policy; claims based on what an applicant thinks the rules or regulations should be are generally denied for that reason

* the applicant asserts in several areas that he should be forgiven for an untimely DOD IG filing because he spent so much energy and time combating other injustices; that does not excuse an untimely filing for any review by an IG or the ABCMR which necessarily rely upon fresh information from which the merits can be readily determined.  An applicant who waits does so at his own peril

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ____x____  ____x_  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 for correction of the records of the individual concerned.



      _________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)                                         AR20090010073



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ABCMR Record of Proceedings (cont)                                         AR20090010073



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