IN THE CASE OF:	  

		BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110014125 


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 to be afforded an evaluation by a medical evaluation board (MEB).

2.  The applicant states, in effect, she was unjustly discharged from the Army due to parenthood when she was being processed for evaluation by an MEB.  She goes on to state that her chain of command administratively discharged her for parenthood in reprisal for a protected communication she made to the Inspector General (IG).  She states she was wrongfully harassed and reprised against by her chain of command because of a complaint she made to the IG and was denied medical processing under the Physical Disability Evaluation System (PDES).  She also states an investigation was conducted by the Department of the Army IG (DAIG) and her allegations were substantiated.

3.  The applicant provides a redacted copy of the DAIG Report of Investigation (ROI).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 11 January 2000 for a period of 4 years and training as a topographic analyst.  She completed basic training at Fort Jackson, South Carolina, and advanced individual training at Fort Belvoir, Virginia, before being transferred to Germany.  She reenlisted on 12 September 2003 for a period of 5 years and training as an imagery analyst.

3.  She deployed to Iraq on 10 August 2004.  On 19 December 2004, she was promoted to pay grade E-5.  She departed Iraq on 2 January 2005 and was returned to her unit in Germany.

4.  She attended the Imagery Analyst Course at Fort Huachuca, Arizona, from 16 June 2005 to 2 March 2006.  She was transferred to Fort McPherson, Georgia, upon successful completion of the course.

5.  On 17 May 2006, the applicant filed a protected communication with the IG which involved the applicant being placed in quarters for 72 hours and her supervisor refusing to honor the medical directive to allow her to go home and go to bed.  Additionally, her civilian supervisor went to the IG office and requested assistance for regarding her going home and complying with the medical directive.

6.  On 24 October 2006, the applicant filed a complaint with the Third Army IG and completed a DA Form 1559 (Inspector General Action Request) in which she contended that her chain of command reprised against her for making a protected communication to the IG.  She alleged that she had been the recipient of numerous reprisals that included being administratively discharged from the Army while she was pending a medical review board.

7.  On 27 October 2006, the applicant was honorably discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separation), paragraph 5-8, for parenthood.  She completed 6 years, 9 months, and 17 days of active service.

8.  The IG investigation was completed on 1 May 2007 and concluded that the applicant's allegations were substantiated.  The investigation determined that the applicant's supervisor had reprised against her for making protected communications and had made the recommendation to the commander that she be "chaptered out" of the Army with full knowledge that she was pending an MEB in reprisal for making a protected communication.

9.  The applicant's medical records were not available for review by the Board and there is no evidence to indicate why the applicant was pending an MEB.

10.  Department of Defense (DOD) Directive 7050.6, dated 20 November 1989, covered the Military Whistleblower Protection provisions (Title 10, U.S. Code, section 1034).  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 a protected communication; 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 to make a protected communication.

11.  Army Regulation 20-1 (Inspector General Activities and Procedures) provides that anyone (military, DA civilian, family member, or private citizen) has the right to register complaints orally or in writing with an Army IG concerning matters of DA interest.  In exercising this right, the complainant will be free from restraint, coercion, discrimination, harassment, or reprimand.  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.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility (MTF) commander will provide a thorough and prompt evaluation when a Soldier's medical condition becomes questionable in respect to physical ability to perform duty; will appoint a physical evaluation board (PEB) liaison officer to counsel Soldiers undergoing physical disability processing; and will ensure MEB proceedings referred to a PEB are complete, accurate, and fully documented.

13.  Army Regulation 40-501 (Standards of Medical Fitness) provides that Soldiers with medical conditions that do not meet the required standards will be evaluated by an MEB and PEB.

14.  Army Regulation 635-200, paragraph 1-33, states that except in separation actions under chapter 10 (Discharge in Lieu of Trial by Court-Martial) and as provided in paragraph 1-33b, disposition through medical channels takes precedence over administrative separation processing.

DISCUSSION AND CONCLUSIONS:

1.  The Board supports the DOD policy of unrestricted communication with Congress, the IG's, 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 unfavorable personnel actions were taken in the form of various actions that were deemed unfavorable, and that the officials responsible for taking those unfavorable personnel actions were aware that the applicant had made protected communications.  Further, it appears the unfavorable personnel actions may not have been taken if the protected communications had not been made.  The actions resulted in the applicant's discharge from the Army.

3.  Although the available records do not contain evidence to show the applicant was being referred to an MEB, the DAIG investigation corroborates the applicant's contentions in its findings.  Accordingly, she should be afforded the opportunity to be evaluated under the PDES MEB to determine her fitness at the time of her separation.

4.  Accordingly, the DA Office of the Surgeon General should take appropriate action to issue the applicant invitational travel orders for the purpose of undergoing the appropriate medical processing and evaluations at an appropriate medical facility that has the capability to properly evaluate the applicant's medical condition.

5.  Once a determination has been made as to the appropriate disposition of the applicant's medical condition under the PDES, the applicant will be separated in accordance with the applicable laws and regulations with entitlement to all back severance/retired pay due her, if any.

6.  In the event that a determination is made that the applicant should have been discharged under the PDES, these proceedings will serve as the authority to void her original discharge and to issue the appropriate separation retroactive to her original separation date.


BOARD VOTE:

__X_____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  directing the Office of the Surgeon General to contact her and arrange a physical evaluation via appropriate medical facilities and

	b.  if appropriate, referring the applicant to an MEB and an informal PEB.

2.  The Office of the Surgeon General is directed to use appropriate invitational travel orders to accomplish the MEB and, if necessary, the PEB.

3.  In the event a formal PEB becomes necessary, the applicant will be issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the informal/formal PEB.

4.  The Board wants the applicant and all others to know the sacrifices she made in service to the United States during the Global War on Terrorism are deeply appreciated.  The applicant and all Americans should be justifiably proud of her service in arms.



      ___________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)                                         AR20110014125



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110014125



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1