IN THE CASE OF:	   

		BOARD DATE:	  22 October 2013

		DOCKET NUMBER:  AR20130011464 


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 her military records by reversing the findings of the Department of the Army Inspector General (DAIG) and the Department of Defense Inspector General (DODIG) wherein she was found to have violated the Military Whistleblower Protection Act (MWPA).  She further requests that all references to these findings be removed from her Army Military Human Resource Record (AMHRR) and from the DAIG data base.

2.  The applicant states the DAIG improperly interpreted the term "Protected Communication" with regard to an email communication, dated 6 June 2012, that was sent by an IG critiquing the performance of a junior officer.  The communication in question did not rise to the level of a protected communication as defined under the definition in DOD Directive 7050.06, paragraph E2.9.2;
Title 10, U.S. Code, section 1034(c)(2); and relevant case law pertaining to Federal whistleblower cases.  In a 15-page document, the applicant makes her arguments and statements of fact as summarized below:

	a.  The applicant contends that failure to grant the requested relief will allow a serious injustice to remain extant.  The finding by the DAIG has tarnished her reputation and caused her to be relieved of her duties as the Command Inspector General (CIG) of the U.S. Army Reserve Command (USARC).  Further she states this could impact her security clearance, result in punishment under the Uniform Code of Military Justice (UCMJ), impact her future employment, and significantly reduce her retirement pension.


	b.  The applicant argues she made a personnel decision based in part on a subordinate's email.  She contends her decision was entirely lawful, justified, and in no way violated the MWPA's whistleblower protections.  She denies she took this action to punish the email's author.  Accordingly, she contends the DAIG finding that the email in question constituted a "protected communication" under the MWPA is flawed as a matter of law and policy and should be stricken from her records.

	c.  The applicant contends that on 19 February 2013 she was removed from her position as the CIG, USARC as a result of the DAIG finding indicating she had committed an act of reprisal in violation of the MWPA.

	d.  The applicant explains that as the CIG, USARC, one of her many responsibilities was to review and make decisions on extensions for personnel assigned throughout USARC.  After only 3 months into her 3-year tenure as CIG, USARC, she decided to not recommend the author of the subject email for a 5th year as an lG.  He had apparently sought this extension so he could deploy to Qatar as an IG.  Such requests are essentially denied when the CIG, USARC does not support them.  Such action is discretionary.  The governing regulations are silent as to the criteria to be applied when reviewing such requests, but she believes it is reasonable to apply a best-interests-of-the-Army test.

	e.  The applicant had initially decided to recommend approval of the extension request discussed above.  However, on 16 July 2012, she had become aware of issues reflecting poorly on the individual's abilities to serve as an IG.  She learned of complaints about this officer and perceptions of his employing "bullying" tactics.  The applicant had formed this belief largely on the basis of testimony from her senior enlisted leader and a copy of an email she provided that was authored by the officer.  The applicant concluded from the email that the officer lacked the objectivity expected of its IGs.  The primary reason the applicant withdrew her support for the officer's requested extension was her loss of confidence in his ability to be perceived as fair and impartial.

	f.  The applicant makes the following comments concerning the email discussed above:

* The email was authored by an officer who was a military policeman detailed as an IG
* It was sent to the Chief Legal Officer (Staff Judge Advocate) to document the author's complaints about another officer who was perceived to have been mishandling legal matters
* The email contained five vague allegations against the officer, who was a captain, Judge Advocate General’s (JAG) Corps, and a credentialed attorney
* The email stated the JAG officer did not appreciate the type of evidence necessary, or the level of proof required, to justify imposing nonjudicial punishment against a sergeant accused of adultery
* The email stated the JAG officer's legal review of an IG investigative report was sloppy and in error
* The email stated the JAG officer did not pay enough attention to detail in reviewing a report about an equal opportunity case
* The email stated the JAG officer was late in reviewing and redacting documents sought pursuant to the Freedom of Information Act
* The email stated the JAG officer's demeanor was unprofessional based on one email, and because he withdrew from a conference call without his higher headquarters' permission

	g.  A subsequent professional-responsibility inquiry cleared the JAG officer of any professional responsibility violations.  The superiority tone of the author's email and self-assuredness regarding his knowledge of military law caused the applicant to reconsider the wisdom of her earlier decision to allow him to serve as an IG for another year, especially in a deployed environment.

	h.  The applicant had sought out the opinion of her technical advisor, the Forces Command (FORSCOM) CIG, who, after seeing the subject email, concurred with the applicant's assessment of the author.

	i.  In response to the applicant's decision, the email's author filed an MWPA reprisal action against her, that the DAIG substantiated.  She contends that the DAIG grossly oversimplified and mischaracterized her reasoning.  She argues she took action to restore harmony in the command.  Her motive was not, as stated by the DAIG, based on a loyalty to her branch as a JAG Corps officer.  She did not disapprove the officer's request for extension because he had questioned an attorney.

	j.  The applicant states that the MWPA makes it illegal to take adverse action against a service member who makes a "protected communication."  Protected communications fall into two categories.  The first comprises those lawful communications between a member of the armed forces and a member of Congress or an IG.  This category does not require the communication to contain evidence of illegal conduct.  The second category, and the one at issue in this case, requires the allegations to pertain to illegal conduct communicated to certain statutorily-recognized recipients.


	k.  According to the DAIG report, four questions were prompted by the reprisal allegation.  First, whether there was a protected communication made or prepared that was protected by the MWPA.  Second, whether there was an unfavorable personnel action taken after the protected communication was made.  Third, whether the responsible management official knew about the protected communication.  A "yes" answer to all three questions would establish a prima facie case of reprisal.  The fourth question is whether the evidence established that the unfavorable personnel actions would have been taken if the protected communication had not been made.

	l.  The applicant does not dispute that the denial of the officer's request for a 5th year as an IG may be deemed, as a matter of law, to be an unfavorable personnel action.  She does not dispute that she knew of the communication.  Further, she does not dispute that the matters contained in the email influenced her decision.  Her core issue is that she disputes the DAIG and DODIG unfounded conclusions that the email was a protected communication under the MWPA.

	m.  The applicant contends the email was a report made by an IG through normal channels as part of his assigned duties.  As such, she argues it is not a protected communication.  Therefore, she requests this Board recognize the Federal courts' guidance providing that whistleblower protections do not extend to communications made as part of an employee's normal duties.  She refers to previous court rulings based on the civilian WPA.

	n.  The applicant argues that to eliminate the statutory requirement to apply the MWPA only to communications to the chain of command would stand the law on its head.  If communications were to become protected merely by addressing them to anyone in their organization, the number of reprisals would grow unmanageably large.  If the DAIG and DODIG view of the law is allowed to stand, any disgruntled employee who complains over a beer about his supervisor to a peer or subordinate may have just made a protected communication.

	o.  The applicant argues the officer's email did not allege matters that warranted the protections of the MWPA.  To be protected, a communication must allege one of the following:

* A violation of law or regulation
* Gross mismanagement
* Gross waste of funds
* An abuse of authority


* A substantial and specific danger to public health or safety
* A threat by another member of the armed forces or employee of the Federal government that indicates a determination or intent to kill or cause serious bodily injury to members of the armed forces or civilians or damage to military, Federal, or civilian property

	p.  The applicant argues there is no support for the DAIG concluding that the email raised a gross mismanagement claim.  The unsupported opinion in the email does not meet the preponderance of evidence standard needed for an IG substantiation.  The email expresses an opinion concerning the performance of another individual and nothing to support an allegation of gross mismanagement.

	q.  The applicant argues the cursory denial of her appeal by the DODIG indicates it may have believed the author of the email complained of a violation of law or regulation rather than of gross mismanagement.  However, this theory is not discussed in the DAIG report and would be a dramatic shift in the theory of the case, and the requirements of the law.

3.  The applicant provides copies of:

* Exhibit 1:  IG Nomination Packet, dated between 31 January and 2 March 2012 (approximately 34 pages)
* Exhibit 2:  Email communication dated 6 June 2012; Memorandum for Record (MFR), dated 21 June 2012; MFR, dated 24 July 2012; MFR, dated 25 July 2012; MFR, dated 13 October 2012; and MFR, dated
30 April 2013
* Exhibit 3:  MFR, Letter of Support, dated 29 April 2013
* Exhibit 4:  MFR, Trip Report IG Office, dated 27 July 2012
* Exhibit 5:  MFR, Letter of support, dated 10 May 2013
* Exhibit 6:  Email communication, dated 6 June 2012 (Duplicate of document in Exhibit 2 above)
* Exhibit 7:  DAIG Report of Investigative Inquiry (Redacted copy), 22 pages
* Exhibit 8:  DAIG Letter to applicant, dated 13 February 2013
* Exhibit 9:  MFR from Staff Judge Advocate (SJA), 79th USAR Sustainment Support Command (SSC), dated
13 October 2012
* Exhibit 10:  Letter from the DODIG to the applicant, dated 26 March 2013

4.  The applicant also provided copies of the following references:

* Title 10, U.S. Code, section 1034 (14 pages)


* DOD Directive Number 7050.06 (Military Whistleblower Protection), dated 23 July 2007
* National Defense Authorization Act for Fiscal Year 1989, Report of the Committee on Armed Services House of Representatives (HR) on
HR 4264, including Section 810 - safeguarding of Military Whistleblowers
* HR conference, page 49 and 50, safeguarding Military Whistleblowers (section 846)
* Westlaw Case cites (5 examples)

5.  In a subsequent submission, the applicant provided copies of:

* MFR, Acting Staff Judge Advocate, Headquarters, USAR, Fort Bragg, NC, dated 1 July 2013
* DA Form 67-9 (Officer Evaluation Report) pertaining to the applicant for the period 2 April 2012 to 1 April 2013

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not make any additional requests or statements and did not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant requested removal of records or data from the files and/or data bases of the DODIG.  The applicant's request pertaining to this issue is beyond the scope and authority of this Board.  Therefore, this portion of the applicant's request will not be discussed further in these proceedings.

2.  At the time of her application, the applicant was serving on active duty as an Active Guard Reserve officer in the rank/grade of colonel (COL)/O-6.

3.  Orders R-04-284789, issued by the U.S. Army Human Resources Command (HRC), dated 17 April 2012, assigned the applicant to duty as an IG with USARC, Fort Bragg, NC, effective 30 April 2012.

4.  The applicant is the subject of a Report of Investigative Inquiry (ROII) pertaining to a DAIG investigation concerning the following two allegations of whistleblower reprisal for making a protected communication in violation of DOD Directive 7050.06, Military Whistleblower Protection:

	a.  First allegation:  that the applicant improperly denied a subordinate IG his request for an IG duty extension and deployment and


	b.  Second allegation: that the applicant denied a subordinate IG an opportunity to compete for a position at The Inspector General School (TIGS).

5.  The ROII provides the following dates and background information when the complainant alleged reprisal:

	a.  On 8 February 2012, the complainant had submitted a request for extension for another 12 months as a detailed IG, as a prerequisite for deployment as an IG within a Military Police brigade.

	b.  On 6 June 2012, the complainant sent an email to the SJA, 79th SSC, expressing his concerns about the professional conduct within a subordinate SJA office.

	c.  On 12 June 2012, the applicant signed a memorandum recommending approval of the extension, commenting that his performance of duty was remarkable and a 5th-year extension would allow retention of a highly skilled IG who would greatly contribute to mission success by providing quality IG support and leadership in a deployed environment.

	d.  On 15 June 2012, the extension packet was emailed to the DAIG Operations and Support Division for TIG approval/disapproval.

	e.  On 21 June 2012, an officer was appointed to conduct a credibility determination/preliminary screening inquiry pertaining to a JAG Corps officer.

	f.  The applicant testified she first became aware of the subject email on 
16 July 2012.

	g.  On 25 July 2012, the JAG Corps officer filed an IG complaint [not this case] with USARC CIG (the applicant in this case).

	h.  On 25 July 2012, the applicant sent an email to DAIG Operations and Support requesting that the extension request for the complainant be pulled.  On 30 July 2012, the applicant sent another email reversing her request and to keep her original recommendation.  The applicant testified she did not recall sending the second email requesting to continue the extension processing with a favorable recommendation.

	i.  On 30 July 2012, the complainant provided a copy of the subject email to the Deputy Legal Advisor, DAIG, requesting guidance.


	j.  On 1 August 2012, the applicant signed a memorandum disapproving the complainant's extension request.  She wrote, "Although [the complainant's name] performance as a detailed IG for the [unit name] has been solid, I believe it is time for this officer to return back to his branch for another branch assignment."

	k.  On 2 August 2012, the applicant sent an emailing requesting to know whether the requested extension packet would stop at her desk if she recommended disapproval.  She received confirmation that same day advising her that if she recommended disapproval, the packet would not be forwarded to TIG, effectively delegating the disapproval authority to her level.

	l.  On 2 August 2012, the complainant requested a legal opinion from the Deputy Legal Advisor, DAIG.

	m.  On 2 August 2012, the applicant testified she called the complainant to inform him that she was disapproving his extension and deployment.  She also stated, "I've had it (the email) on my desk have been looking at it every day and I've been trying to figure out how to deal with you."  "You were out of line - what were you thinking? Initiating an inquiry into a JAG officer is a serious thing.  Do you realize what you did?"  The complainant testified he did not initiate the credibility determination inquiry and had provided his office's complaints and concerns about a subordinate JAG to his command.

	n.  On 3 August 2012, the complainant received a legal opinion from the Deputy Legal Advisor advising him that his expressing his concerns about the legal support to the command did not violate any policy or Army Regulation 20-1 (IG Activities and Procedures).

	o.  On 3 August 2012, the applicant sent an email to HRC, informing the complainant's account manager that his 5th-year extension was denied.

	p.  On 5 August 2012, the complainant sent an inquiry to the DAIG Whistleblower Investigations Oversight Branch seeking guidance and provided input on the situation.

	q.  On 9 August 2012, the complainant was approved to participate in a credibility inquiry concerning legal support provided to the command.

	r.  On 14 August 2012, the Chief of Operations, USARC, sent an email to the field requesting nominations for an instructor position at TIGS.  On 20 August 2012, the complainant responded and indicated his interest in the position.


	s.  The suspense for the TIGS instructor candidates was 24 August 2012.  The DAIG Personnel Chief informed the applicant there was no requirement for USARC to fill this requirement.  No names were forwarded to the DAIG because USARC was not required to provide nominations.

	t.  On 27 August 2012, the 79th SSC CIG emailed the applicant inquiring about the status of the complainant's extension.  The applicant informed him that her email response served as the final notification of the extension and deployment being disapproved.

	u.  On 30 August 2012, the MP Career Manager spoke with personnel in the Operations office, USARC inquiring about the complainant's extension.  Based on being told of the disapproval, the MP Career Manager pulled the complainant's name from the tasking and began working on his next assignment.

	v.  On 30 August 2012, the complainant filed an MWPA reprisal complaint with the 79th SSC IG Office, alleging he was denied an extension of IG duty and an opportunity to be considered for an instructor position at TIGS.

	w.  On 4 September 2012, the MWPA reprisal complaint was received at DAIG.  A preliminary inquiry review sheet was completed and the case was referred on 11 October 2012 to the FORSCOM IG office, noting that the complainant's allegations were against the CIG, USARC.

	x.  On 13 October 2012, the credibility determination inquiry findings for the JAG officer were adopted.  The JAG officer was found to not have committed any professional misconduct.

6.  The RII provides an analysis of the evidence, including the following:

	a.  The complainant had filed an MWPA complaint on 30 August 2012.  He had previously sent an email on 6 June 2012 as requested by the SJA, 79th SSC, documenting his concerns about a subordinate JAG office.

	b.  The complainant had arrived at the 79th SSC on a 1-year extension from his previous tour as an IG in May 2011.  In February 2012, he requested a
12-month extension in order to deploy as a detailed IG with the 800th MP Brigade to Afghanistan, or as an Worldwide Individual Augmentation System (WAIS) IG augmentee to Central Command Forward in Qatar.  He had been notified on 4 June 2012 that the MP Branch supported his request.  He was 


awaiting approval from USARC in order to finalize orders.  The applicant had originally approved the extension request but then later reversed her decision.

	c.  The applicant submitted an additional statement with three enclosures relating to the MWPA complaint against her.  She stated the allegation that she had improperly denied a request for extension could not be substantiated because, in her opinion, the complainant's email was not a protected communication.  The analysis of this statement showed that she had incorrectly argued that the email was not a protected communication because it was sent using an official signature block with official email addresses, and done in an official capacity, and not in a personal capacity.  DOD Directive 7050.06 and
Title 10, U.S. Code, section 1034 define protected communication as a communication in which a member of the armed forces communicates information that a member reasonably believes evidences a violation of law or regulation.  The method or source of the communication does not determine whether it is or is not a protected communication.

	d.  The applicant alleged the complainant had colluded with the 79th SSC SJA to undermine and harm a junior officer.  She concluded that the professional conduct inquiry was a scheme hatched by the complainant and the 79th SSC SJA and that there was no justification for such action because the nature of the complaints were against an attorney's legal opinion.  The analysis showed that the complainant had brought these matters to the attention of the 79th SSC SJA because his previous raising of these issues directly with the JAG officer and his supervisor did not resolve anything and the issues continued.  Before the 79th SJA directed the credibility determination inquiry, he had consulted with OTJAG, Office of Professional Responsibility, and the SJA Office, USARC.  Those offices opined that there was enough evidence from the email sent by the complainant to proceed with a credibility determination on the JAG officer.

	e.  The applicant had stated she did not deny any personnel action related to the complainant, but had only recommended he not be extended to deploy.

	f.  The applicant's statement indicated the reasons she withdrew her favorable recommendation were conduct, policy, and law.  She believed the complainant's conduct jeopardized the 79th SSC IG office's ability to be viewed as fair and impartial and she was disturbed by his tone of sarcasm and assuredness that he was correct regarding legal matters.  The analysis showed that while she had cited regulatory guidance indicating IGs normally would not serve consecutive or repetitive tours, she had supported the complainant's request prior to seeing the protected communication.  Finally, the applicant had asserted that the complainant had practiced law without a license by voicing concerns about the JAG officer's legal opinions.
7.  The ROII included the following testimony:

	a.  The CIG, 79th SSC testified that the email sent by the complainant detailed systemic issues between USARC and the JAG officer.  The issues had been addressed directly with the JAG officer and his supervisor, but a number of issues were still continuing.

	b.  The applicant testified she had received a hard copy of the email on 
16 July 2012 from the USARC IG Sergeant Major (SGM).  She had received the email directly from the JAG officer who was the subject of the email.  The applicant further testified she had asked the 79th SSC SJA if there was a rogue IG, referring to the complainant.  She further testified that in response to her questions to the 79th SSC she was told that the complainant was a great guy and that she had it all wrong.

	c.  The complainant testified the applicant had told him she had the email on her desk for 2 to 3 weeks and had been looking at it every day trying to figure out how to deal with him.  She also told him he was out of line and as a result she was pulling his extension request.

	d.  The applicant also testified the reason she disapproved the complainant's extension request was because he had crafted the email questioning the legal opinion of an attorney.  She was visibly upset by the complainant's actions and reiterated several times during her testimony that his actions were not justified.  She could no longer support the extension because he had questioned the legal findings of an attorney.

	e.  When asked directly by the investigating officer what led her to recommend disapproval, she stated it was the memorandum referring to the email sent by the complainant.  On more than one occasion, the applicant testified that the complainant was working out of his scope in crafting the email about an attorney.  She testified that the tone of the email was not appropriate.  She saw the email as a direct request to have an attorney's credentials reviewed even though it was the 79th SSC SJA who had directed the credibility determination inquiry.  She testified she did not know and did not inquire to determine the reason why the 79th SSC IG office provided the email of mismanagement concerns to the 79th SSC SJA.


	f.  The applicant felt justified in her decision to reverse her approval to disapproval decision because she received a concurrence from the CIG, FORSCOM.  However, the CIG FORSCOM had advised her as he did because he believed Soldiers should be returned to the field after about 2 years so they can refresh and stay relevant.

	g.  The CIG, 79th SSC testified that the applicant had told him she was concerned that the 79th SSC IG office was nosing in on the SJA business of the subordinate unit and that their method of legal review was not the 79th SSC's concern.  The CIG, 79th SSC testified he believed the complainant was denied his extension as reprisal.  He based his belief on the sudden reversal of the decision from approval to disapproval which had to have been triggered by something, like the email which was the topic the applicant had discussed with the complainant.

	h.  The SJA, 79th SSC testified that the applicant had told him the email caused the applicant to change her mind and the complainant's extension request.

8.  The ROII analysis of the complaint:

	a.  Question 1:  Was there a protected communication made or prepared that was protected by Title 10, U.S. Code, section 1034?  Yes, the 6 June 2012 email the complainant sent to the SJA, 79th SSC.

	b.  Question 2:  Was there an unfavorable personnel action taken after the protected communication was made?  Yes, regarding the 5th-year extension that was a precursor to deployment.

	c.  Question 3:  Did the responsible management official know about the protected communication?  Yes, the applicant was given a copy of the complainant's email on 16 July 2012.

	d.  Question 4:  Does the evidence establish that the unfavorable personnel actions would have been taken if the protected communication had not been made?  No, for the first personnel action concerning the complainant's request for extension.  This action was originally approved by the applicant.  When the applicant became aware of the email, she then disapproved the extension request.  With regard to the second personnel action concerning the TIGS instructor position, yes.  The applicant's office was relieved of the requirement to provide nominations for the position.


9.  The ROII conclusions of the complaint:

	a.  The allegation that the applicant improperly denied the complainant's request for extension of IG duty and deployment, in reprisal for making a protected communication, in violation of DOD Directive 7050.06 was substantiated.

	b.  The allegation that the applicant had denied the complainant an opportunity to compete for a TIGS instructor position, in reprisal for making a protected communication, in violation of DOD Directive 7050.06, was not substantiated.

10.  The ROII recommended concurrence with the conclusions and that the case be forwarded to the DODIG for final approval.

11.  In a memorandum, dated 13 February 2013, the applicant was informed by the Chief, Assistance Division, U.S. Army IG Agency, that the DAIG had completed its inquiry into the whistleblower reprisal allegations made against her and that the DODIG had approved the DAIG ROII.  The results substantiated that she had improperly denied a Soldier's request for an IG duty extension and deployment in reprisal for a protected communication.  The case was considered closed.

12.  On 26 March 2013, the Director, Whistleblower Reprisal Investigations, DODIG, responded to the applicant's Hotline appeal of the DAIG finding that she had reprised against a Soldier as a result of his email complaint.  The memorandum stated that the applicant believed the email did not amount to a protected communication under the DOD Directive 7050.06.  However, she was advised that after a careful and extensive review by the DAIG Legal Advisor and the associated documentation, the DODIG concluded that the applicant had not provided any new or compelling information or evidence to warrant overturning the DAIG original finding that she did reprise against another Soldier for making a protected communication.

13.  DA Form 67-9, ending on 1 April 2013, reports that the applicant had served as the CIG, USARC since 2 April 2012.  The evaluation appears to be a regularly scheduled annual report that shows she had met all of the Army values and leader attributes.  Her performance was rated as outstanding with recommendations for further assignments to challenging positions to capitalize on her tremendous potential.  Her senior rater evaluated her as best qualified.  There is no evidence in the report indicating anything derogatory or questionable with her performance of duty.  It is not a relief for cause report.

14.  Orders R-05-383827, HRC, dated 23 May 2013, reassigned the applicant to duty as Deputy Command Judge Advocate General, HRC, Fort Knox, KY, with a report date of 22 July 2013.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected by reversing the findings of the DAIG and the DODIG wherein she was found to have violated the MWPA.  She further contends that all references to these findings should be removed from her AMHRR and from the DAIG data base.

2.  The available evidence clearly shows the applicant was investigated by the DAIG and found to have violated the MWPA.  The allegation that the applicant had improperly denied the complainant's request for extension of IG duty and deployment, in reprisal for making a protected communication, in violation of DOD Directive 7050.06 was substantiated.

3.  The applicant argues the DAIG improperly interpreted the term "Protected Communication" with regard to an email communication that was sent by an IG critiquing the performance of a junior officer.  She contends the communication in question did not rise to the level of a protected communication as defined under the definition in DOD Directive 7050.06.  However, much of her supporting argument is based on court cases addressing civilian employees under the WPA statute under Title 5, U.S. Code, section 2302.  This is not the controlling law in this case.

4.  The MWPA requires the Secretary of Defense to prescribe regulations to carry out the MWPA.  DODI 7050.06 prohibits reprisal against members of the armed forces for making or preparing protected communications.  Reprisal is defined as taking or threatening to take an unfavorable personnel action, or withholding or threatening to withhold a favorable personnel action, for making or preparing to make a protected communication.

5.  In this case, the DAIG found that the applicant had violated the MWPA by taking back her earlier approval of an extension and deployment based on the email the complainant had written.  This was a clear act of reprisal.

6.  The applicant appealed the DAIG finding; however, it was denied.  The denial letter broadly interpreted the definitions of the DODI and did not accept the applicant's narrower interpretation of the relevant definitions.  She provides insufficient evidence to show the findings were legally deficient.

7.  There is no available evidence of record showing she was relieved of her duties as the CIG, USARC for any reason other than to comply with a routine reassignment.  There is no evidence in her AMHRR indicating anything derogatory.  There is no evidence of an error or injustice based on what documents are, or are not, filed in her AMHRR.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested 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.

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