IN THE CASE OF:	  

		BOARD DATE:	    10 May 2012

		DOCKET NUMBER:  AR20120005093 

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 correction of his noncommissioned officer evaluation report (NCOER) covering the period 1 March 2010 through 1 October 2010 or its entire removal from his official military personnel file (OMPF) and issuance of a nonrated period memorandum.

2.  The applicant states he received the unfavorable NCOER in reprisal for making a protected communication which was substantiated by an official investigation.

3.  The applicant provides a two-page enclosure explaining the specific corrections he requests and a copy of the results of an Inspector General (IG) investigation.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 November 1992 for a period of 4 years, training as a multiple launch rocket system crewman, and a cash enlistment bonus.  He was honorably released from active duty in pay grade E-5 on 16 March 1997 due to completion of required service.

2.  He again enlisted in the Regular Army on 24 September 1997 for a period of 3 years and assignment to Fort Bragg, North Carolina.  He reenlisted on 20 January 2000 for a period of 6 years and on 4 May 2004 he reenlisted in pay grade E-6 for an indefinite period.  He completed the Special Forces Engineer Sergeants Course in March 2005.  He was promoted to pay grade E-7 on 1 October 2005.

3.  On 29 August 2011, he received a derogatory NCOER covering the period 1 March 2010 through 1 October 2010.

4.  The applicant filed an allegation of reprisal under the Military Whistleblower Protection Act.  On 7 March 2012, the Department of the Army Inspector General (DAIG) notified the applicant that the Report of Investigative Inquiry had been completed and determined the applicant's complaint that his rating chain had improperly rendered an unfavorable NCOER on him in reprisal for making a protected communication to the chain of command had been substantiated.  Additionally, the Department of Defense Inspector General (DODIG) concurred with the findings.

5.  DOD Directive 7050.6, dated 20 November 1989, covers the Military Whistleblower Protection provisions (Title 10, U.S. Code, section 1034).  This directive was reissued on 23 July 2007.  The directive states 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 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.)

6.  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 a DAIG 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 (Army Command Policy).  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 IG's, various government investigators, and other authorized recipients, 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 an NCOER that was deemed unfavorable, and the officials responsible for taking those unfavorable personnel actions were aware that the applicant had made protected communications.  Further, it appears that the unfavorable personnel actions may not have been taken if the protected communications had not been made.

3.  Inasmuch as the Board does not possess sufficient evidence to support correction of the NCOER and since the applicant has requested total removal of the NCOER from his OMPF if corrections are not warranted, and given the findings of the DAIG and DODIG, it is in the interest of justice to remove the NCOER covering the period 1 March 2010 through 1 October 2010 in its entirety as requested by the applicant.

4.  In view of the foregoing, the applicant's records should be corrected as recommended below.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 removing the NCOER covering the period 1 March 2010 through 1 October 2010 in its entirety from his OMPF, by declaring the period of the contested report as nonrated time, by placing a non-prejudicial statement in his records explaining the nonrated period of service, and by placing his corrected records before all promotion selection boards that reviewed the contested report, if any.



      _______ _   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)                                         AR20120005093



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ABCMR Record of Proceedings (cont)                                         AR20120005093



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