2.  The applicant requests correction of his military records by rescinding the findings contained in Training and Doctrine Command (TRADOC) Inspector General (IG) Report of Investigation (ROI) #DIH-94-0740, removing all associated documents from his Official Military Personnel File (OMPF) and reinstating him on the battalion command list.

3.  The applicant states, in effect, that he was removed from the battalion command list because of an unprofessional IG investigation and an improper command review process.  He adds that substantive inaccuracies in the IG investigation, compounded by IG bias and misconduct, led to a procedurally flawed administrative review process which removed him from the battalion command list.  The applicant’s counsel contends that the applicant is an outstanding leader maligned by an IG report which lacks objectivity, is based upon a flawed investigatory process, and contains serious judgment errors on the part of the investigators.

4.  The applicant is a lieutenant colonel.  In June 1991, he was a major assigned to Fort Bliss, Texas, as the Operations Officer (S3) for the 3rd Squadron, 3rd Armored Cavalry Regiment (ACR).  He held that duty position until 20 May 1993 when he was reassigned to the Regimental Headquarters as the Regimental S3, a duty position he held for 5 months until 18 October 1993.  He then remained at Fort Bliss for an additional 82 days before departing on 9 January 1994 for an assignment in the Office of The Deputy Chief of Staff for Personnel (ODCSPER), The Pentagon, Washington, DC.

5.  Following his departure as Regimental S3, the applicant was named by a former subordinate as the subject of an equal opportunity (EO) complaint charging racial discrimination.  The complainant, a black captain who worked directly for the applicant in the 3rd ACR Regimental S3 Section, alleged that the applicant made racial slurs towards him and treated him differently than he treated white officers.  The Commanding General (CG) of Fort Bliss appointed an investigating officer to conduct an Army Regulation (AR) 15-6 investigation into the allegations.  The investigation, which was conducted during the late 1993-early 1994 time frame, failed to substantiate any allegations of racial discrimination, but did conclude that the applicant treated his subordinates in an unprofessional manner.

6.  In January 1994, the III Corps and Fort Hood, Texas, IG [the 3rd ACR is a FORSCOM unit that falls under III Corps headquarters] and the Fort Bliss IG conducted a joint inquiry into allegations of racial bias in the 3rd Squadron, 3rd ACR.  In the Executive Summary to the CG, Fort Bliss, the report recommended
“a formal investigation under the provisions of the Article 5 Tribunal, AR 15-6, or a Commander’s Inquiry be conducted to investigate the conduct of [applicant].  After interviewing officers, NCOs as well as soldiers it became apparent that [applicant’s] professionalism is in question.  It also became apparent that the squadron commander and executive officer were present during these open forum verbal abuse and denigrating sessions directed against junior officers, and did little to curb it from happening.  These sessions occurred frequently and were directed in a shotgun like manner at almost every command/staff call.  It is the perception, however that black officers were verbally abused more than white officers.  This pattern of verbal abuse and humiliation of junior officers continued by [applicant] even after he became the Regimental S3.”  As a result of the AR 15-6 and the Fort Hood/Fort Bliss IG inquiry, the CG issued the applicant a letter of admonishment concerning his unacceptable treatment of subordinates.

7.  Dissatisfied with the results of the AR 15-6 investigation and the joint IG inquiry, the black captain wrote to members of Congress and to the Department of the Army (DA) IG.  This prompted the DAIG to task the TRADOC IG to conduct an inquiry into the captain’s allegations of impropriety by the applicant and others at Fort Bliss, including those persons associated with the AR 15-6 investigation.  As it related to the applicant, the inquiry looked into two separate, but distinct aspects of impropriety--the making of racially derogatory statements, and the demonstration of racism through the unequal treatment of minority soldiers.

8.  The TRADOC IG investigation was conducted during the period 25 July to 30 September 1994.  Although attempts were made to corroborate several specific incidents of alleged racially demeaning statements attributed to the applicant, the IG investigators could neither substantiate nor refute any of the allegations that the applicant made racially derogatory statements.  Similarly, allegations of unfair treatment of minorities could neither be substantiated nor refuted; however the consensus of opinion from those persons interviewed was that the applicant treated all equals and subordinates in a rude, impersonal, and unprofessional manner regardless of race.

9.  In concluding their investigation, the TRADOC investigators, in a section entitled “OTHER MATTERS” (paragraph 9) on page 33 of the ROI, stated that the investigation raised “serious questions about [applicant’s] leadership style.  His attitude and demeanor, coupled with his outright demonstration of unprofessionalism and the strong perception by some that he is racially biased towards minorities, has a negative impact on the morale of the organizations in which he served.”  It added that, “his treatment of subordinates did not foster an atmosphere for his earning the respect and loyalty of many of those subordinates. . . .  [Applicant’s] persona had a devastating affect on many of the soldiers [in his units].”

10.  On 16 December 1993, the Army Lieutenant Colonel, Combat Arms Command Selection Review Board recommended the applicant for battalion command.  Subsequently, he was slated to take command of an armor battalion in the 24th Infantry Division, Fort Stewart, Georgia, in the February 1995 time frame.  As a result of the post-command selection board screening process, the applicant’s name was checked against criminal and IG investigative records and he was found to be the subject of an IG investigation.  A summary, entitled ‘RECOMMENDED OFFICER WITH DEROGATORY INFORMATION ON FILE, FY95 LIEUTENANT COLONEL, COMBAT ARMS COMMAND’ was completed by the Promotions Branch, Total Army Personnel Command (PERSCOM) which stated that the applicant exhibited unprofessional conduct in the treatment of his subordinates.

11.  Following the discovery of the derogatory information during the routine background check, the DAIG forwarded the TRADOC ROI (with all supporting exhibits) and an Executive Summary to ODCSPER on 18 November 1994.  Upon review, it was recommended that the matter of the applicant’s command selection be temporarily deferred while his case was placed before a General Officer Review Board (GORB).  The DCSPER approved the recommendation on 15 December 1994 and a GORB (comprised of three General Officers from ODCSPER, OTJAG [Office of The Staff Judge Advocate General], and the DAIG) met and recommended that the applicant’s case go before a Command Review Board (CRB).  On 28 December 1994, the applicant was notified of his temporary deferral from command and the referral of his case to a CRB.

12.  During this review and referral process, ODCSPER requested a legal opinion from OTJAG to determine whether the TRADOC ROI qualified as ”substantiated, relevant, adverse information” for referral to a CRB.  The legal opinion, dated 9 January 1995, stated that ”Although the approved TRADOC IG ROI failed to substantiate either of the two allegations against [applicant], in our opinion, the file contains sufficient evidence to support a contrary conclusion.”  It suggested that the DAIG open a new investigation and, using TRADOC’s investigation, reach new findings.  It also suggested that the DAIG make a determination as to whether the comments in paragraph 9 of the ROI concerning the applicant’s unprofessional conduct constituted a “substantiated allegation” and, if so, posed no objection to forwarding the entire ROI to the CRB for its consideration.  In a subsequent opinion from the DAIG to ODCSPER on 19 January 1995, the DAIG stated that paragraph 9 (OTHER MATTERS) constituted a substantiated allegation as that term is used in AR 20-1, chapter 7.
13.  On 2 February 1995, the applicant requested that the DAIG reopen the entire matter citing a flawed TRADOC IG investigation and a faulty command review process.  He also provided a list of supportive witnesses which he claimed the TRADOC IG never interviewed during the initial investigation.  The DAIG, after preliminary inquiries and the interviewing of some 12 individuals from the applicant’s list, determined on 16 June 1995 that the investigation would not be reopened.

14.  On 11 October 1995, the CRB, consisting of 5 members in the rank of colonel, and representing the following branches of service; Quartermaster (Board President), Aviation, Armor, Engineer, and Special Forces, met to review the applicant’s case and the TRADOC IG ROI.  Upon conclusion of their review, they recommended that the applicant be removed from the FY 95 Lieutenant Colonel-Level Combat Arms Command List.  The recommendation was forwarded through the DCSPER, who nonconcurred and recommended the applicant be retained on the command list, to the Chief of Staff of the Army (CSA), who directed the applicant’s permanent removal from the list.  The applicant was notified of the CSA’s decision on 10 May 1996.  On 11 October and 25 November 1996, the applicant submitted his application to this Board.

15.  After conducting an initial review of the record, including the DAIG file and the CRB file maintained at Promotions Branch, PERSCOM, the Board offered the applicant a formal hearing on 20 August 1997.  The applicant accepted and appeared with counsel, who stated that the applicant’s case would dispel two notions; the first being that the applicant is a racist, and the second being that he demonstrated poor leadership.  In so doing, they would show that the TRADOC IG’s investigation was seriously flawed.

16.  The applicant presented three witnesses on his behalf.  The first witness was a black, active duty Air Force lieutenant colonel who served with the applicant as a student at the Marine Corps Command and General Staff College in 1990-1991.  The witness, who is married to a white woman, testified that he knew the applicant professionally and socially and had never found him to be the least bit racist.  He added that his family and the applicant’s family had socialized together on many occasions.

17.  The second witness was a white, active duty Army lieutenant colonel who served with the applicant in the 3rd ACR during the time frame in question as the Regimental S1 (Personnel Officer).  He testified that the command climate in the Regiment was extremely poor and that all members of the Regimental staff were under a great deal of pressure, especially the applicant.  He stated that the Regimental Headquarters was approximately 25 percent minority, that he interacted with the applicant several times daily, and he never saw the applicant say or do anything which could be construed as racist or otherwise demeaning to subordinates.  He stated that he knew the black officer who brought the charges against the applicant and opined that he was a substandard officer who could not function in the fast-paced environment of the S3 shop to the point where he could not even put together and present a basic briefing.  He said the applicant did his best to permit the black officer to succeed by reassigning him to less demanding work, but in the end, he was forced to give the captain a poor Officer Evaluation Report (OER).  He added that the applicant did this based on the captain’s duty performance and not his race; that another black captain who worked for the applicant received an outstanding OER and a Meritorious Service Medal upon his departure from the unit.  In concluding his testimony, the witness said that the AR 15-6 investigating officer had totally misrepresented his [witness’] statement during that investigation.  He never said that, “With respect to professionalism, on two occasions I recall, I think [applicant] went over the line.” To the contrary, he said that the applicant was one of the most professional officers with whom he had ever worked; that he had never observed him demeaning anyone.  He said that he never indicated that the black officer’s three block OER rating was wrong or that the applicant had ever “lit into some guys pretty good” at the National Training Center.  In closing, he stated that the AR 15-6 investigation and the TRADOC IG investigation both operated from a narrow list of witnesses which probably skewed the results against the applicant.

18.  The final witness was a retired Army major general whose last duty assignment was as the Director of Military Personnel Management (DMPM), ODCSPER.  He stated that the applicant worked for him after leaving Fort Bliss in January 1994.  As the DMPM, he was responsible for all board actions and activities related to boards, so he ultimately became professionally involved in the applicant’s situation.  He related that the applicant was an outstanding officer whose duty performance was superb during his tenure on the DCSPER staff.  He said that, in his professional opinion, the case against the applicant contained unsubstantiated material related to the racial allegations which should not have been in the file; that the only thing that was substantiated was one allegation regarding the applicant’s leadership style which, he added, had been dealt with by the Fort Bliss commander through a letter of admonishment.  He stated that he personally briefed the CSA, pointed out the inconsistencies in the case and the unsubstantiated material which the CRB had seen, and recommended that he disapprove the CRB’s recommendation that the applicant be removed from the command list.  The case was with the CSA for approximately 6 weeks, after which the CSA directed that the applicant be removed from the command list.  The witness was adamant that the information presented during the entire command review process was flawed, but added that he did not believe the actual review process was flawed.  In response to questions from the Board, he stated that the CRB composition did not exactly mirror the composition of the original command selection board, but that, given the availability of officers to sit on the CRB, it was an acceptable substitute within DCSPER policy guidance.  Finally, in response to a question from the Board concerning whether the CSA had provided a rationale for his action in removing the applicant from the command list, the witness stated that the CSA had done so, but that it was a privileged communication between general officers and would only say that the CSA had done what he believed was best for the Army.  However, he added that, had he been the CSA, he would have overruled the CRB and allowed the applicant’s name to remain on the command list.

19.  Following witness testimony, counsel presented a summary of several documentary matters.  He pointed out various discrepancies in summarized testimony given during the AR 15-6 investigation and the failure of the investigating officer to reconcile different interpretations of the same event.  In addition to the discrepancies already mentioned above (paragraph 17) in the Regimental S1’s testimony, he pointed out that the testimony of a second lieutenant who served as the 3rd Squadron Chemical Officer was also totally misrepresented.  This was reinforced by a 15 March 1995 letter from the officer in which he presented a completely opposite impression of the applicant.  Counsel also stated that allegations of witness collusion during the TRADOC IG investigation were reviewed by the DAIG who failed to investigate them.  He indicated that the DAIG’s response to the applicant’s request for a new investigation used sweeping generalities to describe certain events, such as ”The majority [emphasis added] of witnesses interviewed indicated that [applicant] demonstrated the type of leadership style discussed in paragraph 9.”  He then posited the question, “. . . does this case turn on how many people said good things versus how many people said bad things?”  Finally, he argued that the one issue--leadership--on which the applicant’s career hangs was never the issue for which the investigation was undertaken.  It “bubbled up” from the racial allegations and was “tangential” to the main issue.  He strongly stated that the applicant’s leadership style should have been more thoroughly investigated before declaring it defective and using it to damage his career.

20.  The applicant testified, in effect, that he was operating in a dysfunctional command climate and that everyone was under a great deal of pressure.  He said that, in addition to accomplishing the mission, he was attempting to train his subordinates to be independent so that, when he was no longer around, they could rise to the occasion and get the job done.  He admitted that he sometimes “chewed out” subordinates; that most of the time they deserved it, but if they didn’t, he would apologize.  He added that what wasn’t known was that he always spent time with his subordinates trying to teach them how to be better soldiers; he never just chewed them out and left it at that.  In summary, he stated that the investigations were biased and did not present an accurate picture of his leadership style.

CONCLUSIONS:

1.  The applicant was the subject of three separate investigations which focused on alleged racial discrimination.  Although none of the investigations concluded that the applicant was a racist or practiced racial discrimination, all substantiated his abrasive, unprofessional relationship with subordinates and questioned his leadership.  As a result, the applicant received a letter of admonishment from the CG, Fort Bliss concerning his treatment of subordinates.  Although not the stated focus of any of the investigations, scrutiny of the applicant’s leadership style was an inevitable, and logical, progression from the original subject of inquiry.

2.  The TRADOC IG investigation was fair, impartial and thorough.  Witness interviews were conducted which painted a contrasting picture of the applicant’s professionalism; however, the predominant view presented the applicant as an officer whose leadership style stressed fear and intimidation and was harmful to unit morale.  Although the TRADOC IG ROI neither substantiated nor refuted the charges of racial discrimination made against him, an OTJAG legal review of the investigatory file opined that sufficient evidence existed to support the conclusion that the applicant did exhibit racist behavior.  As a result, and because the applicant’s leadership deficiencies were substantiated, OTJAG posed no objection to giving the entire file to the CRB during their deliberative process.

3.  The command review process was accomplished in accordance with existing regulations and DCSPER policy guidance.  Although the three general officers who comprised the GORB were selected from ODCSPER, OTJAG, and the DAIG, they acted with fairness and impartiality in deliberating the merits of this case.  Similarly, the CRB which recommended the applicant’s removal from the battalion command list was duly constituted and performed in a fair and impartial fashion even though it did not accurately reflect the composition of the original command selection board.

4.  The former DMPM testified that he briefed the CSA on what he believed were the problems with the allegations contained in the investigations.  The CSA had the benefit of the DMPM’s advice, as well as access to all relevant documents, before he made his decision.  It is clear that the CSA made his decision after a full and detailed consideration of all the facts and circumstances.

5.  The AR 15-6 investigation which was directed by the Fort Bliss CG and which was concluded in early 1994 contained serious misrepresentations of testimony presented by the Regimental S1 and 3rd Squadron Chemical Officer.  Although both officers praised the applicant and/or denigrated the black captain as a substandard performer, the investigating officer’s summary of those interviews tended to validate unprofessional conduct by the applicant.  The Board viewed these errors as serious, but not decisively prejudicial to the applicant given the totality of the evidence against him.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

    a.  deleting, in its entirety, that portion of all available copies of the AR 15-6 investigation conducted on 3 February 1994 at Fort Bliss, Texas, as relates to the summarized testimony of the former 3rd Squadron Chemical Officer, and;

    b.  by altering that portion of all available copies of the AR 15-6 investigation conducted on 4 February 1994 at Fort Bliss, Texas, as relates to the summarized testimony of the former Regimental S1 by:  (1) deleting the fourth and sixth sentences of the first paragraph and the last sentence of the second paragraph; and (2) changing the word “adequate” to “inadequate” in the fifth sentence of the first paragraph.

2.  That so much of the application as is in excess of the foregoing be denied.


COMMENT:

Two Board members, Mr. Thomas N. Kuhn and Mr. Raymond V. O’Connor, Jr., expressed concern about two particular aspects of this case as relates to the review process.  First, each GORB should be carefully constituted to ensure that no General Officer serves on the board who may have, in any way, had an official or personal involvement in the case being considered.  Second, insofar as is possible, the composition of each CRB should be established to reflect the same composition as the original command selection board without being overly affected by timeliness and bureaucracy.  Further, CRB members should be selected as scrupulously as the members of the original command selection board, and that they should be made to fully understand the impact of the CRB’s mission and the need for rigid compliance with all rules governing such boards.






		                                            
		   FRANKLIN R. TAYLOR
		        CHAIRPERSON