AR20140000078

IN THE CASE OF:

BOARD DATE: 13 March 2014

DOCKET NUMBER: AR20140000078

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, in effect, the removal/voiding of a noncommissioned officer evaluation report (NCOER) covering the period 20101201 20111031 from his official records.

2. The applicant states, in effect, that he received a derogatory NCOER covering the period 20101201 20111031 as a result of making a protected communication.

3. The applicant provides 25 exhibits which include the response to his whistleblower complaint, a timeline of events, two NCOERs, various email transmissions related to his request for award of a Combat Action Badge (CAB), and the contested NCOER.

CONSIDERATION OF EVIDENCE:

1. The applicant was serving with the Oklahoma Army National Guard (OKARNG) as a recruiting/retention NCO in the pay grade of E-6 when he was ordered to active duty in support of Operation Enduring Freedom effective 8 April 2011. He deployed to Afghanistan on 12 June 2011.

2. On 10 January 2012, the applicant received his NCOER covering the period 20101201 20111031 for an initial review. On 13 January 2012, he contacted his rater to discuss administrative errors and comments on the report.

3. On 8 February 2012, he signed a privacy act release in connection with his request for assistance from his Congressional representative in regard to the denial of his request to be awarded the CAB.

4. On 11 February 2012, he initiated an Inspector General Action Request (IGAR).

5. On 9 March 2012, the applicant again received his NCOER which contained drastically altered negative comments by the senior rater (SR). The applicant contended that his chain of command altered the original NCOER as a means of reprisal against him because he had made a protected communication with a Member of Congress.

6. As a result, an investigation was conducted by the Department of Defense Inspector General’s (DODIG) office which found that the applicant’s allegation that his SR reprised against him because he had made a protected communication with a Member of Congress was substantiated. The remainder of his allegations were unsubstantiated.

7. The contested NCOER is not filed in the applicant’s official records and he has not provided a copy of a derogatory NCOER covering the period 20101201 20111031.

8. The applicant was promoted to the pay grade of E-7 on 20 January 2012 and on 1 April 2012 he was honorably released from active duty (REFRAD) to accept another active duty position (Title 32) in the OKARNG.

9. DOD Directive7050.6, dated 20November 1989, covers the Military Whistleblower Protection provisions (Title10, U.S.Code, section1034). This directive was reissued on 23July 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 12August 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.)

10. Army Regulation 20-1 (Inspector General Activities and Procedures) provides that anyone (military, Department of the Army (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, 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, and 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 contested NCOER is not in his official records and the applicant has not provided a copy, the Board does not possess sufficient evidence to support correction of the NCOER. However, given the findings of the DODIG it is in the interest of justice to declare the period 20101201 20111031 as non-rated.

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 that the evidence presented was 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 declaring the period of the contested report (20101201 20111031) as nonrated and by placing a non-prejudicial statement in his records explaining the nonrated period of service.

_______ _ 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) AR20140000078

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ABCMR Record of Proceedings (cont) AR20140000078

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