BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130014754 


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 reconsideration of his earlier request for award of credit for 20 qualifying years of service for retired pay purposes.

2.  The applicant states:

	a.  He is appealing the Board's decision on the basis of the Whistleblower Protection Act which applies to current and former Federal employees.  The actions taken against him were prohibited by this law.  Actions were taken that were not corrected by higher headquarters.

	b.  The orders removing him from his U.S. Army Reserve (USAR) troop program unit (TPU) and attaching him to another unit were supposedly justified under the guise of "good management."  If it was only for "good management" and not punitive, he questions why he wasn't reinstated in his position as battalion executive officer when the battalion commander was relieved due to travel fraud.  This was an adverse action taken against him that should have been reversed.

	c.  When the battalion commander was relieved, the battalion commander was replaced by a non-qualified individual.  He was the only officer qualified for the position, but he was not chosen.  Under the "good management" principle, he should have been restored to his original position in the TPU and, if qualified, placed in the appropriate position in the unit.  He was denied career progression by the command structure in the 98th Division (Training).  He is positive this was because of his cooperation with the U.S. Army Criminal Investigative Command (CID).  The involuntary transfer to the USAR Control Group denied him the opportunity to earn enough points for 20 qualifying years of service.  If he was the only officer qualified for the battalion commander position, then choosing an unqualified officer was another reprisal by the 98th Division (Training).

	d.  It was stated that he had the opportunity to earn retirement points through correspondence courses.  He was taking the Command and General Staff College (CGSC) correspondence course when the CID investigation began.  Sometime throughout the year of the investigation, his CGSC records, as well as those of another officer cooperating in the investigation, disappeared.  When he contacted the school correspondence course officials, he was told he would have to start the course over again.  He was suspicious because he no longer received any correspondence records when the 98th Division (Training) attached him to another unit.

	e.  In light of the adverse actions and destruction of his military career, he even gave up on taking correspondence courses since he no longer considered them secure.  His will had been broken and even higher headquarters couldn't or wouldn't correct his status.

3.  The applicant provides a copy of a Congressional Research Service Report for Congress on the Whistleblower Act.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120005784 on 4 September 2012.

2.  The applicant's contentions are new evidence that will be considered by the Board.

3.  Having prior enlisted service in the Regular Army, the applicant was appointed as a first lieutenant in the USAR on 25 September 1970 and entered active duty on 7 October 1970.  He was promoted to captain on 16 March 1973.

4.  On 19 July 1975, he transferred to the USAR Control Group and served in that status until 19 March 1977.  On 20 March 1977, he was assigned to the USAR Ready Reserve in a TPU.

5.  On 19 July 1982, the applicant was promoted to major.  He served in TPU's the Ready Reserve until 2 March 1987.  On 3 March 1987, he was assigned to the USAR Control Group (Reinforcement).

6.  On 5 August 1989, the applicant reverted to an enlisted status and continued serving in the USAR Control Group until 23 October 1989, at which time he was transferred to the Retired Reserve.

7.  A U.S. Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 19 January 2011, in his records shows he completed a total of 16 years and 9 months of qualifying service for retirement.

8.  There is no evidence that shows the applicant completed 20 years of qualifying service for retired pay purposes.

9.  In his original application, he provided a letter from the Department of the Army Inspector General (DAIG), dated 11 September 1986, addressed to a Member of Congress who had inquired on the applicant's behalf regarding problems being experienced by the applicant in his unit.  The DAIG indicated the applicant's allegations that his battalion commander gave him a general counseling form, punitive disposition form, and adverse officer evaluation report (OER) for his cooperation with a CID investigation of the battalion commander was substantiated.  The DAIG further indicated the applicant was attached to a new unit to protect him from further retribution and permission was granted for the 98th Division Commander to remove the adverse OER from the applicant's records.  He further indicated the 98th Division IG would continue to take an active part in this matter to ensure all corrective actions were being taken and that the applicant was protected from further acts of retribution.

10.  In his original application, he also provided a letter from the 1st U.S. Army Deputy Chief of Staff for Personnel (DCSPER) who responded to an inquiry from the applicant, dated 6 February 1987.  The DCSPER informed the applicant that while the allegations he made in his inquiry were substantially correct, his attachment to the another unit and subsequent transfer to the USAR Control Group (Reinforcement) were neither punitive nor an adverse action.  He further indicated the decision to attach him to another unit was for the good of all parties concerned and his transfer to the USAR Control Group (Reinforcement) upon completion of his tenure was consistent with appropriate regulatory guidance and sound management principles.  He further advised the applicant that his military career was not terminated with his assignment to the USAR Control Group (Reinforcement); he could still accrue retirement points through various means and should another TPU position become available for which he was qualified, he could apply for the position.

11.  On 5 June 2013, the DAIG confirmed the applicant did not file a Whistleblower action.

12.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength) prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  An annual statement of retirement points will be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement is to provide a permanent record of the total retirement points a Soldier earned during a retirement year; to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and to provide the Soldier with an opportunity to request correction of errors in the statement.

13.  Army Regulation 135-180 (Army National Guard and USAR – Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers.  Paragraph 2-8 states a Reserve Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  Only Soldiers assigned to an active status in a Reserve Component or individuals in active Federal service are authorized to earn retirement point credit.

14.  Title 10, U.S. Code, sections 12731 through 12740, currently authorize retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.

15.  The doctrine of laches 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 the actions taken against him were prohibited by the Whistleblower Protection Act.  However, there is no evidence and he provides no evidence showing he filed a Whistleblower action.

2.  His reprisal contentions were again carefully considered.  However, as previously noted, the evidence of record confirms he was reprised against by his battalion commander based on his involvement with a CID investigation of that commander.  However, the letters from the DAIG and 1st U.S. Army DCSPER provided by the applicant show that corrective action was taken with respect to the adverse actions taken against him by his battalion commander.  The available evidence also shows his transfer to the USAR Control Group (Reinforcement) in 1987 was not punitive or an adverse action and did not prevent him from earning retirement points while in that status.

3.  If as he contends/implies, that he was further reprised against when an unqualified officer was placed in the battalion commander position (instead of him) and when his CGSC correspondence courses disappeared/were no longer received, then those issues should have been raised at the time.  He could have raised this further reprisal with the DAIG for another investigation.  The lapse of almost 30 years has now intervened.  An arbitrary ruling in his favor, without knowing whether any further reprisal occurred/would have been substantiated, would cause prejudice to the Government.  An equitable decision cannot now be made in his case, and the doctrine of laches is invoked.

4.  The available evidence shows the applicant completed 16 years and 9 months of qualifying service for Reserve retired pay.  By law, a Reserve Soldier must complete a minimum of 20 qualifying years of service (minimum of 50 retirement points for each retirement year) to be eligible for retired pay.

5.  Since there is insufficient evidence to show that he was prevented from earning further qualifying years due to reprisal, there is no basis for granting the applicant's request to show he completed 20 qualifying years of service for Reserve retired pay.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120005784, dated 4 September 2012.



      ___________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)                                         AR20130014754



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ABCMR Record of Proceedings (cont)                                         AR20130014754



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