IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007566 


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 the following corrections be made to his records:

	a.  that he is authorized full active service pay with all allowances from 
1 October 1994 (the date he was retired) to 30 September 2000 (the date he would have completed 30 years of active service). 

	b.  an increase in the amount of his retired pay by 15% (his current rate is 60% and he wants to be paid at the rate of 75%).  He also wants the payments made retroactive to 1 October 2000 with all cost of living allowance increases. 

	c.  payment of $1,000,000.00 for pain, suffering, and damages that he and his wife wrongfully suffered on behalf of the Army.

2.  The applicant now states the Board violated Department of Defense (DOD) Directives and Army Regulations when it ordered that he be promoted and immediately retired without giving him the opportunity to perform the duties associated with the rank of SGM/E-9 or the opportunity to serve the maximum number of years allowed for his grade (30 years).  As such, he missed out on receiving 75% of retired pay.  He was a highly qualified, decorated, and educated noncommissioned officer (NCO) who was reprised against by a corrupt chain of command at Fort Lewis, WA.  He lost his military career, home, assets, and wife. If the Board does not give him what he requests, he is willing to go to the local and national media as well as Members of Congress with his story.  He breaks down the original Record of Proceedings by indicating his agreement or disagreement to each of the 45-paragraph findings, 15-paragraph conclusions, and recommendations.  His point of view appears to be that the ABCMR is the guiltiest party that has been involved with his case and is responsible for killing his career, yet remains untouchable by Federal laws and directives. 

3.  The applicant provides the following documents:

* A self-authored rebuttal of the Board's 1994 Record of Proceedings dated 8 January 2010
* A self-authored statement titled:  Operation Redemption, Phase II dated 
1 March 2010
* A copy of his original application, titled "Executive Summary" 
* A copy of the 1994 Record of Proceedings with a copy of selected pages of a 267-page Transcript of the Hearing 
* Copies of his civilian diplomas, college transcripts, test results, and a listing of his education
* A copy of his previous application with allied documents, award recommendations, awards, and Enlisted Evaluation Reports (EER's)
* A copy of a letter from his attorney dated 6 December 1993
* A CD of newspaper articles
* A DVD of select television coverage of his story

CONSIDERATION OF EVIDENCE:

1.  The applicant previously requested correction of his records to show promotion to master sergeant (MSG)/E-8 and sergeant major (SGM)/E-9; restoration of parachute jump pay; retention on active duty until his appeal process or all remedies were exhausted if entire relief was not favorably approved; the exclusion of two individuals from reviewing, advising, or having any access to his records; and the return of all documents intact after completion of the Board's review.  

2.  The applicant previously appeared in person with counsel before this Board in Arlington, VA on 31 August 1994.  His 700-page appeal packet describes a 
6-year chronology of what went wrong.  The Board members examined the facts and circumstances that covered an extended period of time and volumes of substantial evidence provided by the applicant and by various Government investigative agencies including the Department of Defense Inspector General (DODIG), Department of the Army Inspector General (DAIG), U.S. Army Criminal Investigation Command (USACIDC, also known as CID) also known as the Criminal Investigation Division (CID), and the Naval Supply Systems Command which made available its teleconferencing facilities to interview witnesses located at Fort Lewis.

3.  The applicant now requests payment of $1,000,000.00 for pain, suffering, and damages to him and his family.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  The ABCMR considers individual applications that are properly brought before it and in appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR decides cases on the evidence of record; it is not an investigative body.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The Army, by law, may pay claims for amounts due to applicants as a result of correction of military records.  The Army may not pay attorney’s fees or other expenses incurred by or on behalf of an applicant in connection with an application for correction of military records under Title 10, U.S. Code (USC), section 1552.  The Board is not authorized to compensate for pain, suffering, or consequential damages.  Therefore, these issues will not be discussed further in this Record of Proceedings.  

4.  Having had prior service in the U.S. Marine Corps, the applicant's records show he enlisted in the Regular Army in the rank/grade of specialist four/E-4 on 18 August 1978 and he held military occupational specialty 43E (Parachute Rigger).  He served through multiple extensions or reenlistments and attained the rank/grade of sergeant first class (SFC)/E-7 on 18 November 1984.  His last reenlistment was on 14 August 1990 for a period of 4 years and his established expiration term of service (ETS) date was 13 August 1994. 

5.  His records also show he took part in on and off duty educational activities throughout his military service and he earned a bachelor's and a master's degree.  In July 1988, he was assigned as the Noncommissioned Officer in Charge (NCOIC), Air Delivery Section (ADS), Fort Lewis, the rigger unit responsible for packing and maintaining parachutes.  

6.  His case covers over 5 years of various events involving several local, regional, and senior officials throughout the DOD, DA, DOD IG, DAIG, Members of Congress, local, regional, and national media and television:

	a.  In 1989, he began raising concerns about the way the jump pay system was being administered in the unit (Soldiers were receiving jump pay without parachuting every 3 months as required) and later he raised the issue of contract fraud involving one of his former superiors (his former supervisor's wife obtained a $17,000 contract).  The parachute pay complaint resulted in an estimated annual savings of $100,000 at Fort Lewis, while the contract complaints resulted in his superior being reprimanded, fined, and transferred.  

	b.  The applicant was reprimanded at some point for taking action to stop jump pay for those who were not entitled to it and he was also relieved from the ADS in 1990 and assigned to a job with lesser responsibility.  An investigation, later initiated by the Director of Logistics (DOL), found no improprieties in the jump pay system.  However, the Fort Lewis IG determined the DOL investigation was mishandled and launched their own investigation that validated the applicant's allegations.  The applicant was subsequently reinstated to the ADS in July 1991.  However, he was again relieved from the ADS because he asked for help outside the chain of command. 

	c.  DOD investigators ultimately determined the applicant's relief was a continuation of reprisals against him and recommended that he be reinstated.  In July 1993, the Acting Assistant Secretary of the Army (ASA) (Manpower and Reserve Affairs (M&RA)) directed that the applicant be extended until he had completed 24 years of active service and that he be reinstated to the position of NCOIC, ADS.  However, shortly thereafter, the Commanding General, Fort Lewis, informed the Deputy Chief of Staff, G-1, that he could not in clear conscience place the applicant in the NCOIC position because he questioned his judgment and integrity, and the very next month, the Acting ASA (M&RA) withdrew the requirement to reinstate him but authorized his extension through 30 September 1994.

	d.  Some of his allegations were determined to be unfounded while others, including some unfavorable personnel actions, were determined to be reprisals.  Although some corrective action was taken, his personnel record was considered non-competitive for promotion due to some substandard EER's which he appealed and they were ultimately directed to be removed from his records.  

7.  On 8 July 1994, he submitted a request for voluntary retirement effective 31 May 1995; however, as an E7, the maximum number of years he could have served (retention control point) was 24 years and his requested date of retirement was beyond the 24 year mark.  As such, he was extended in the Army through 30 September 1994, which was his 24 year mark.

8.  On 31 August 1994, he appeared before this Board with counsel.  He requested to be extended until 31 May 1995, reinstatement of his jump pay, and promotion to MSG/E-8 and SGM/E-9.  He also requested several other issues to include that two specific individuals be excluded from accessing any matters related to his case; that his application be returned to him after completion of his case; and an open hearing at Fort Lewis.

9.  The Board granted him relief in the form of promotion to MSG/E-8 by the July 1990 promotion board (the earliest date he was eligible for promotion in the primary zone), effective 1991; promotion to SGM/E-9, as an exception to policy, effective 30 September 1994 (the date he was scheduled to be released from active duty); a waiver of the 2-year service remaining requirement; placement on the retired list in the rank/grade of SGM/E9, effective 1 October 1994; and restoration of his jump pay (as an exception to policy), effective 1 February 1992.

10.  The Board justified its actions by stating the applicant's record clearly showed he would have been promoted to MSG had reprisal not occurred.  But due to reprisal, he was left with an empty record and he was placed in an unfair, uncompetitive position with a disadvantage that was the direct result of the reprisal he suffered.   

11.  The Board also declined to recommend disciplinary action against those found to have reprised against the applicant.  It justified its action by stating the Board is viewed as a compassionate body created to correct errors or remove injustices.  Recommending adverse action was inconsistent with the Board's purpose and image.  

12.  The applicant was honorably retired on 30 September 1994 and placed on the retired list in the retired rank/grade of SGM/E-9 effective 1 October 1994.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 24 years, 1 month, and 12 days of creditable active service. 

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

14.  The directive also provides that a member or former member of the Armed Forces who has filed an application for the correction of military records alleging reprisal for making or preparing a protected disclosure may request review by the Secretary of Defense of the final decision on such application.  The request for review must be in writing and include the member’s name, address, telephone number, copies of the application to the Board and the final decision of such application, and a statement of the specific reasons that a member is not satisfied with the decision.  A member or former member of the Armed Forces must file the request for review of the final decision within 90 days of receipt of the decision.  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.

15.  Army Regulation 37-104-4 (Military Pay and Allowances Policy) provides Department of the Army (DA) policies for entitlements and collections of pay and allowances for active duty Soldiers.  It is used in conjunction with Department of Defense Financial Management Regulation (DODFMR), Volume 7, Part A.  This regulation stipulates that the law prescribes the pay of Soldiers and states, in pertinent part, that Soldiers are entitled to receive pay according to their pay grades and years of service.  Total active military services is used to establish the percentage of basic pay that will be used for retired pay, 2 and 1/2 percent is earned for each year of active military service.  Total military service is used to establish basic pay scale (longevity) pay rate upon which retired pay will be based.

16.  Army Regulation 601-10 (Management and Recall to Active Duty of Retired Soldiers of the Army in Support of Mobilization and Peacetime Operations) covers the management and mobilization of retired Soldiers of the Army during war, national emergency, or when otherwise authorized by law.  It provides for peacetime management of retired military personnel in preparation for their use to meet national defense requirements.  It sets policies and procedures for the voluntary and involuntary assignment to retired Soldiers; discusses the Secretary of the Army’s authorization to order Regular and Reserve Army retired Soldiers to active duty; contains the medical examination policy for retired Soldiers subject to recall; and updates screening of retired Soldiers who occupy key positions.  This regulation also gives guidance for determining the need for recalled retired Soldier training; clarifies the statutory authority for Soldiers mobilized under Title 10, USC.

17.  The doctrine of latches is defined by Black's Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that, as a SGM, he should have been allowed to serve 30 years instead of 24 years and receive the maximum retired pay at the rate of 75% instead of the current 60%.

2.  The evidence of record shows the applicant was reprised against for making protected communications.  He had been passed over for promotion many times since blowing the whistle on his superiors and he had been transferred from a supervisory position to a custodial position.  He appealed to this Board and it was acknowledged that he lost rank and pay because of reprisal for whistle-blowing.

3.  The error was recognized and the applicant was encouraged to apply to this Board which ultimately righted the wrong.  The Board resolved the reprisal issue in favor of the applicant and provided closure in his case when it vindicated him for his proper conduct of reporting incidents of mismanagement at Fort Lewis.  The Board also granted him relief at the time (with the exception of punishing others).  Therefore, reprisal is no longer an issue.

4.  The applicant and counsel were notified of the Board's decision when it was approved in 1994.  He knew he was promoted to SGM/E-9 and he knew he was retiring as a SGM/E-9.  In his original application, and even subsequent to the Board's decision, neither he nor his counsel raised the issue of serving through 30 years or requesting the maximum retired pay allowed at the time.  

5.  The equitable defense of laches appropriately bars the applicant's latest claim.  Laches properly applies when a party through neglect or delay fails to diligently pursue a claim.  To rely on this defense, the Government must show the applicant delayed filing a claim of error for an unreasonable and inexcusable length of time from the time the applicant knew or reasonably should have known of this claim against the Army and the delay by the applicant operated to the prejudice or injury of the Army.  The following facts apply:

   a.  The applicant waited 16 years to challenge the Army's decision to retire him at 24 years instead of allowing him to return to duty and complete 30 years of service as a SGM/E-9.

   b.  Had the applicant asked for reconsideration or further relief, the Army may have returned him to duty and he could have served an additional 6 years and received the benefits of a SGM/E-9.

6.  Generally speaking, a Soldier is entitled to pay only when specified duties are performed.  Even when a separation is wrongful, in the absence of a Soldier actually having performed duties in which the Government is obligated to pay, there is no debt for which the Government is liable.  Although the Secretary of the Army may pay a claim from applicable current appropriations for the loss of pay, allowances, compensations, or other benefits, if, as a result of the record correction under Title 10, USC, section 1552, the amount is found to be due to a claimant, there is no statute or regulation that mandates pay for service never actually performed.  In the absence of such a statute or regulation, the applicant cannot demonstrate a substantive right for a period of service that he never performed.  In the absence of such a pay-mandating statute on which to base his claim, the applicant is neither entitled to the extra service credit he seeks nor the higher percentage of retired pay associated with it. 

7.  Nevertheless, the Army has a mechanism in place that allows retired Soldiers to be mobilized.  Retirees from any component may be mobilized and recalled to active duty.  Mobilized retirees are not eligible for promotion but may be eligible for an increase in retirement pay based on the time spent on mobilization and the recall increases their years of service.  The applicant is advised that he may review Army Regulation 601-10 for the eligibility to reenter the Army under this program. 

8.  With respect to his claim that the ABCMR improperly processed his case, his argument is misleading and he draws improper conclusions.  He failed to provide any particular proof that the ABCMR failed to give his case a fair and complete adjudication.  If anything, the record suggests the exact opposite given the ABCMR's earlier decision to grant full relief (minus punishing others).  The applicant fails to appreciate that while the ABCMR exists to help Soldiers, it is not a vehicle for dispensing unearned or unjustified benefits or record corrections.  Board members operate with this understanding when deciding whether, as a matter of law or equity, the record of the individual Soldier before them warrants relief on its own merits. 

9.  With respect to his threat to go to the media and utilize legal channels to get what he believes he deserves, as a retired Soldier and a civilian, the applicant is free to tell his story through the media.  He is also free to file a claim for relief in Federal Court.  His reprisal issue was resolved 16 years ago and he already received full relief.  He failed to challenge or refute the decision for relief within a reasonable period of time or provide evidence that the decision was faulty, unfair, inequitable, or improper.

10.  In view of the foregoing, the applicant is not entitled to any relief


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)                                         AR20100007566



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ABCMR Record of Proceedings (cont)                                         AR20100007566



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