| Mr. Carl W. S. Chun | Director | |
| Mr. Hubert S. Shaw, Jr. | Analyst |
| Mr. Raymond V. O’Connor | Chairperson | |
| Mr. John P. Infante | Member | |
| Ms. Paula Mokulis | Member |
APPLICANT REQUESTS: In effect, correction of his military records to show that he was not removed from the Calendar Year (CY) 2000, Major General, Army Competitive Category, Promotion Selection List, to show that he was retroactively promoted to major general effective on the date he would have been promoted had he not been removed from the major general promotion selection list, and to show that he was reinstated to active duty with constructive time in grade and service.
APPLICANT STATES: In effect, that his counsels will present his case.
COUNSELS CONTEND: That the 10 July 2001 removal of his name from the CY 2000, Major General, Army Competitive Category, Promotion Selection List constituted an error or an injustice for several reasons. These reasons, contentions, notes, and evidence are submitted in a 35 page addendum to the application, located immediately under the cover of Volume I.
The counsels for the applicant initially provided facts and circumstances pertinent to the applicant’s duties at the time in question as the commander, in the rank of brigadier general, of Special Operations Command Central (SOCCENT) which is a sub-unified command of U.S. Central Command (CENTCOM), both located at MacDill Air Force Base in Tampa, Florida. Counsels point out that SOCCENT had responsibility for special operations missions in an area of responsibility (AOR) which spanned more than nine time zones and included 25 separate nations encompassing an area bounded by Egypt in the west, Pakistan in the east, Kazakhstan in the north and the Horn of Africa in the south. They also stated that it was approximately 8000 miles from CENTCOM Headquarters to Riyadh, Saudi Arabia, and it took 29 hours to fly between those locations.
The applicant’s counsels pointed out that force protection was of paramount concern because the CENTCOM area of responsibility was the home and training ground for several major terrorist groups. Further, they stated that the Commander-in Chief (CINC) of CENTCOM [this position is hereafter identified as CINCCENT] placed “great emphasis on commanders visiting and taking an active role in the AOR for CENTCOM.” Counsels also state that CINCCENT provided guidance to the applicant “to develop professional relationships among the Special Operations forces of all of the countries in the CENTCOM and SOCCENT AOR.”
The counsels also pointed out that CINCCENT extended the applicant’s tour of duty as SOCCENT twice which resulted in a four-year assignment instead of the normal two-year assignment. They stated that CINCCENT also made SOCCENT the lead component to open up the Central Asian states for CENTCOM which now required the applicant to make multiple trips to Kazakhstan, Uzbekistan, Kyrygzstan, and Turkmenistan.
The counsels for the applicant also provided background information on the Department of the Army Inspector General (DAIG) investigation into an anonymous complaint against the applicant. They asserted that the complaint contained three allegations which were not substantiated by the DAIG; therefore, the counsels elected not to discuss them further. As a result, the three unsubstantiated allegations are not discussed at all in this Memorandum of Consideration.
The counsels for the applicant point out that during the course of the DAIG inquiry a fourth concern surfaced regarding the applicant’s use of airline business-class accommodations while traveling TDY [temporary duty] from SOCCENT headquarters to the CENTCOM AOR. They assert that 13 sets of travel documents covering the applicant’s TDY travel between 28 January 1999 and 14 January 2000 were examined and that this DAIG review created concern the applicant, during his tenure as the Commanding General of SOCCENT, may have improperly used commercial airline business class accommodations on trips to the CENTCOM AOR.
The counsels for the applicant continued that the DAIG substantiated the concern that the applicant must have improperly traveled airline business-class during TDY from SOCCENT headquarters to the CENTCOM AOR, in part, because the applicant’s executive officer appeared to have annotated the applicant’s blanket travel orders after they were approved to provide for business-class travel. The counsels also noted that the executive officer declined to offer an explanation for his apparent actions when questioned by the DAIG.
Counsels set forth the applicant’s testimony to the DAIG, specifically that his trips were essential to the SOCCENT mission; that the CENTCOM CINC or Deputy Commander-in-Chief (DCINC) knew about every trip; that he received legal advice from his “Command Judge Advocate” (then an Air Force captain, hereafter identified as the SOCCENT JA) which indicated business-class travel was authorized because of the “14 hour rule” in the Joint Federal Travel Regulation (JFTR); and that travel time to the nearest destination in the AOR was over 14 hours and actually 28 to 29 hours. Counsels also point out that the applicant testified that his executive officer made his TDY travel arrangements and obtained the travel itinerary for each trip.
The counsels for the applicant set forth the SOCCENT JA’s testimony to the DAIG, specifically that he found the applicant to be concerned about compliance with regulations and Army policy; that he reviewed all applicable CENTCOM regulations regarding business-class travel; that he concluded when TDY travel between origin and destination was separated by several time zones and the scheduled flight time was in excess of 14 hours business-class travel was authorized; that he told the executive officer the applicant could fly business-class travel to the AOR and it would be in keeping with CENTCOM regulations and the JFTR; and that the applicant, as a special staff officer in CENTCOM, could make determinations about traveling business-class himself. The counsels also pointed out that the SOCCENT JA concluded his first testimony to the DAIG by stating that he and the CENTCOM Comptroller concluded that as long as the “14 hour rule” was complied with and the applicant approved the business-class travel himself, then business-class travel was authorized; that none of the other commands within CENTCOM had their actions routed through CENTCOM so it was not out of the ordinary for SOCCENT to handle its own travel arrangements; and that the SOCCENT JA personally briefed the servicing travel office on his opinion that business-class travel was authorized.
The counsels for the applicant set forth the SOCCENT JA’s second round of testimony to the DAIG, specifically that he again explained his legal opinion of when business-class travel was authorized; that he was not aware there was any policy against what the JFTR or CENTCOM regulations stated; that the applicant never suggested only business class was to be flown; that the “14 hour rule was the overriding factor” which authorized the applicant business-class travel; that he gave this advice to the applicant freely; and that he had been told (after the first DAIG interview) the applicant’s executive officer had altered the applicant’s blanket travel orders to expedite processing orders and issuing tickets.
The applicant’s counsels then restated the DAIG’s conclusion that the applicant had improperly traveled business class during TDY travel from SOCCENT headquarters to the CENTCOM AOR, specifically: “[The applicant’s rank and name omitted] consistently used airline business-class accommodations that were reserved by his executive officer. These accommodations were obtained with travel orders that had been modified after approval…[The applicant’s rank and name omitted] business-class travel was routine rather than exceptional, was not justified, and was authorized by travel orders of questionable origin.” They further noted the DAIG concluded that the applicant had been relying on legal advice provided by the SOCCENT JA and that the “14 hour rule was the single overriding factor” which authorized the applicant business-class travel.
In concluding their background on the DAIG investigation, the counsels asserted that the synopsis in the DAIG executive summary “constituted the precise basis for the referral of [the applicant’s rank and name omitted] to the Promotion Review Board [PRB] to determine retention or removal from the 2000 Major General Promotion List.”
The counsels for the applicant next provided information related to the PRB. They stated that, after receipt of notification he was being referred to a PRB, the applicant officially responded to the President of the PRB:
“As a result of the legal advice rendered…as well as professional demands that I be productive both during and immediately after flights…I believe that my travel was…in accordance with the Joint Travel Regulations…All my travel was in response to requirements as directed by the Commander-in Chief Central Command…I did not personally change, nor order anyone on my staff to change or modify any travel orders, and I believe all such orders originated properly from my command. Finally, as stated by the Vice Chief of Staff of the Army…CINCCENT [Commander-in-Chief of CENTCOM] would have approved the method of travel had I known to process each request through his staff.”
Counsels also pointed out that the applicant provided to the PRB a copy of the Memorandum of Concern issued by the Vice Chief of Staff of the Army. They also highlighted that the Memorandum of Concern resulted from the DAIG investigation and that the Vice Chief of Staff of the Army directed this memorandum not to be filed in the applicant’s personnel records. They further asserted that the Memorandum of Concern makes direct reference to the DAIG Report of Investigation (ROI), dated 10 October 2000, and further states in part:
“I am not officially reprimanding you…because I believe that your intention in securing business-class travel was motivated by your desire to be productive both during and immediately after the flights….Further I note that you received (incorrect) legal advice that business-class travel was authorized from the Air Force Judge Advocate serving your Command. Last, subsequent contact with your Commander-in-Chief reveals that because of the requirements he placed on you, he would have approved business class travel if he had been asked…I consider this matter closed.”
Counsels for the applicant then present extracts from the letters written to the President of the PRB by the former CINCCENT [a General/pay grade O-10] at the time of the events in question, the current CINCCENT [a General/pay grade O-10], the former DCINC of CENTCOM [a Lieutenant General/pay grade O-9] at the time of the events in question, a subsequent DCINC of CENTCOM [a Lieutenant General/pay grade O-9], the Commanding General of the U.S. Army Special Operations Command [a Lieutenant General/pay grade O-9], the Commanding General of XVIII Airborne Corps [a Lieutenant General/pay grade O-9]. All of these letters recommend promotion of the applicant to major general and provide laudatory comments about the applicant.
Counsels for the applicant then concluded their discussion of matters related to the PRB by asserting that the PRB, in spite of the matters brought to its attention and the decision of the Vice Chief of Staff of the Army that this matter was closed, voted in the majority to remove the applicant’s name from the CY 2000, Major General, Army Competitive Category, Promotion Selection List.
The next matter addressed by the counsels is “new evidence” presented in a statement by the applicant’s former executive officer, a U.S. Navy Lieutenant Commander (pay grade O-4), who is now retired in that same grade. The former executive officer made this statement, dated 2 February 2002, to the applicant’s counsels.
The counsels assert that in this statement, the former executive officer clarifies and explains why the applicant is not at all responsible for or aware of any discrepancies related to blanket travel orders and business-class accommodations. They point out the “sworn affidavit” shows that he was the executive officer to the applicant from June 1998 through May 2000 and that he was responsible for “coordination of official travel” and the “development of itineraries for overseas visits.” The counsels point out that the former executive officer to the applicant at the time in question now admits he took it upon himself to annotate the words “business class travel authorized” on the reverse side of the applicant’s blanket travel orders after these orders were approved and that he used copies to send to the servicing travel office to arrange travel without informing the applicant. The counsels presented cites from the former executive officer’s statement which are restated here in part:
“In my capacity as SOCCENT executive officer, I took it upon myself to type in the words “business-class travel authorized” on the reverse side of the travel order form (DD Form 1610) and used these copies to send, by fax, to the [name of the servicing travel office omitted]. I elected to do this on my own volition and without informing [the applicant’s name omitted].”
“At the time…I did not give the matter a second thought. To my mind, the action was above board: I had gone through an approval process that involved visiting multiple offices at CENTCOM and processing through the Chain of Command up to the Deputy CINC of USCENTCOM, [name of the lieutenant general omitted] who approved the initial request for business-class travel. I assumed, in good faith, that this was a standing approval for future business-class travel and I believed it was both impractical and unnecessary to repeat the process for [the applicant’s rank and name omitted] later TDY visits to the SOCCENT AOR. My understanding of the criteria necessary for flying business-class TDY to the CENTCOM AOR was clear and such travel had been previously approved by CENTCOM. Adding the endorsement wasn’t something I addressed with [the applicant’s rank and name omitted], either before or after the fact….”
“Additionally, [the rank and name of the SOCCENT JA omitted] personally advised me on several occasions that, in his legal opinion, [the applicant’s rank and name omitted] was authorized business-class travel. [The rank and name of the SOCCENT JA omitted] appeared confident that in his legal opinion after apparently reviewing the JFTR as well as CENTCOM regulations and information papers. I specifically recall [the rank and name of the SOCCENT JA omitted] commenting that business-class travel was authorized when the duration of scheduled overseas flights was in excess of 14 hours one-way. All of the travel orders that I amended to authorize business-class travel related to air travel that lasted well in excess of 14 hours, and specifically related to [the applicant’s rank and name omitted] visits to various destinations such as Egypt, Kuwait, Kenya, Uzbekistan, etc., which were within the CENTCOM AOR.”
“My decision not to explain this matter to the DAIG was because I believed at the time as I do now that the arrangements I made for TDY travel were completely proper. I was taken aback and chose not discuss this matter after being read my rights by the DAIG representative and being presented with copies of orders with the endorsements described to me as an amounting to alteration of an official document. Soon thereafter, I brought this matter to [the rank and name of the SOCCENT JA omitted] and explained to him what had happened with the blanket travel orders and that I believed I had acted properly.”
“I am hopeful that this statement might be used in the future to correct any association, direct or indirect, which may have been made between [the applicant’s rank and name omitted] business-class travel and what had been described as travel orders of questionable origin. I say this particularly because I have been provided with a copy of [the applicant’s rank and name omitted] 16 January, 2001 notification that he was being referred to an Army PRB to recommend his retention or removal from the 2000 Major General promotion list.”
“I have also been provided a copy of the DAIG’s synopsis which apparently was provided to the Army Promotion Review Board. This synopsis contains the statement that [the applicant’s rank and name omitted] business-class travel was routine rather than exceptional, was not justified, and was authorized by travel orders of questionable origin. If the travel orders [the applicant’s rank and name omitted] utilized were of questionable origin, it was I, not [the applicant’s rank and name omitted], who was responsible for the unfortunate situation.
“I wish to make it perfectly clear that in no way, either directly or indirectly, was [the applicant’s rank and name omitted] responsible for my modification of his travel orders. I deeply regret the fact that this matter has caused adverse consequences to [the applicant’s rank and name omitted] career.”
Counsels for the applicant next addressed the contention that legal advice on business class travel given by the SOCCENT JA was “reasonably relied upon.” The counsels argue that all the applicant’s TDY travel to the CENTCOM AOR appeared to meet the JFTR and policy requirements for business-class travel since the DAIG investigation does not dispute the fact air travel from SOCCENT headquarters to the CENTCOM AOR was in excess of 14 hours and crossed several time zones each way. The counsels point out the travel itineraries published by the servicing travel office show that commercial travel far exceeded 14 hours. The counsels then listed the times of departure, arrival and return for each of the 13 flights examined by the DAIG.
Counsels for the applicant also contend that applicable regulations and policies “reasonably appeared to authorize business-class travel to the CENTCOM AOR.” They assert that the policies and regulations reviewed by the DAIG were the JFTR, CENTCOM Regulation (CCR) 310-2, and a memorandum from the Acting Secretary of the Air Force. Counsels for the applicant noted that the DAIG cited Paragraph U3125(B4) which authorizes:
“Premium class other than first-class accommodations use may be authorized/approved only when:...(i) travel is direct between authorized origin and destination points (one of which is OCONUS [outside the continental United States]) which are separated by several time zones, and the scheduled flight time (including stopovers) is in excess of 14 hours. Scheduled flight time is the time between the scheduled airline departure from the PDS [permanent duty station]/TDY point until the scheduled airline arrival at the TDY point/PDS. A rest stop…is prohibited when travel is authorized by premium class travel.”
The counsels again reiterate that all of the business-class travel in question was from Tampa, Florida, to the CENTCOM AOR, exceeded 14 hours, crossed seven or eight time zones each way, and did not include RON’s which the counsels define as “Rest Overnight.”
The counsels then addressed the applicability of CCR 310-2, specifically that both the DAIG and the SOCCENT JA reviewed appendix S of that regulation which contained a “DECISION MATRIX FOR PREMIUM CLASS OTHER THAN FIRST CLASS TRAVEL.” The counsels contend that this matrix “suggests” that business-class travel may be authorized when travel between origin and destination is separated by several time zones and scheduled flight time exceeds 14 hours. They argue that this supports the opinion by the SOCCENT JA and his advice that business-class travel was authorized for the air travel in question.
The counsels then addressed the applicability of a memorandum from the Acting Secretary of the Air Force, dated 2 December 1998. They contend that this memorandum tends to support the use of business-class travel and provides a specific example of when business-class travel would be authorized. Counsels argue that the following example would reasonably appear to authorize business-class travel by the applicant, particularly in view of the comments made by the former CINC, the current CINC and the former DCINC of CENTCOM:
“Examples of “exceptional circumstances” may be travel on an extremely demanding schedule, the requirement to work enroute…or the need to be prepared to perform official duties and properly represent the U.S. Government on arrival.”
Counsels for the applicant also point out that the SOCCENT JA relied on an information paper from “CENTCOM legal”, dated 1 June 1997. This information paper states in part:
“Government Funded Business Class Airline Travel
--Under the JFTR and Command Policy Letter #9, Directors and chiefs of
Special Staff may approve the use of premium class travel (Business
Class) when: --travel between origin and destination is separated by
several time zones and the scheduled flight time, including stopovers, is in
excess of 14 hours; or when…”
Counsels then addressed the former CINCCENT’s statement in his letter to the PRB to the effect that he would have approved business-class travel for the applicant “if it had been processed through his office.” Counsels cite the testimony of the applicant to the DAIG wherein he recommended that other witnesses be contacted, but also pointed out that CINCCENT was not asked to testify by the DAIG:
“Q:..In what way, other than the obvious differences of rank and status as Commanding General…do you consider yourself different in the requesting of business…”
A. A lot of times I have to make decisions that impact on people’s safety and lives. I’ve got to have a coherent mind to do this. I’ve got to approve or disapprove missions in support of the CINC and national security. I’ve got to interface with ambassadors and deputy chiefs of mission…
Q. Is there anybody that you can recommend to me that you think I should talk to to help clarify what we’ve been talking about?
A. General [former CINCCENT’s name omitted].
Q. Okay. Anybody else?
A. He’s the man. He’s my boss. He gave me the directions, and he told me I have done a magnificent job in what I’ve done.”
Counsels then presented a statement to the PRB by the current CINCCENT regarding the applicant’s travel:
“To ensure mission success, it was necessary for [the applicant’s rank and name omitted] to travel extensively throughout the CENTCOM AOR.”
Counsels also set forth a statement to the PRB by the former DCINC of CENTCOM that the applicant was “the most traveled commander deploying and training soldiers across CENTCOM’s entire AOR.” Counsels further contend that if these senior General Officers had been interviewed, then much more about the exigencies of SOCCENT’s missions and the appropriateness of business-class travel by the applicant “would have been realized.” Counsels conclude that the comments of these senior General Officers “clearly suggest that due to the exigencies of the SOCCENT mission, it was reasonable for [the applicant’s rank and name omitted] to rely on the legal opinion of his Command Staff Judge Advocate that business-class travel was authorized, as well as appropriate under the JFTR, CENTCOM regulations and information paper referenced above.”
The counsels for the applicant then addressed approval by CENTCOM Deputy Chief of Staff (DCS) [an officer in the rank of colonel] of the applicant’s blanket travel orders with request dates of 21 September 1998 and 27 July 1999. Counsels contend that business-class travel appeared authorized to the CENTCOM DCS. The counsels set forth in part testimony by the CENTCOM DCS to the DAIG to support their point that if business-class travel was taken by the applicant then it was authorized by the JTR:
“A: Judging from the tone of these questions it appears that you’re questioning whether [applicant’s last name omitted] should or should not have been on premium-class travel. I do not think anything wrong was done.
Q: Why do you feel that way?
A: Because I don’t…
Q: Okay.
A: In SOCOM [Special Operations Command]--…it’s an interesting split…between us and SOCOM…
Q: If we look from the standpoint of appropriate justification or authorization rather than the money side of it, how do you feel then?
A: …the money side is what bothered me. The 14 hours on (sic) the JTR would allow him to do it.
Q. Okay.
A: …the JTR speaks to RON [Rest Over Night]…which…would be cheaper. But there again, you’ve got a Flag Officer time and how valuable (sic) you put on their time.”
Counsels again discussed the contention that the SOCCENT JA provided legal advice to the applicant that business-class travel was authorized. They introduced an “affidavit” by the former legal advisor to the applicant, dated 19 February 2002, wherein his testimony to the DAIG is further explained. After providing a description of his duties from July 1997 to mid-June 2000 as the SOCCENT JA and verifying his redacted testimony of 10 April 2000 and 19 May 2000, he stated the reasons he believed that business-class travel by the applicant to the CENTCOM AOR was authorized:
“I researched the Joint Federal Travel Regulation and the applicable CENTCOM regulations that addressed the subject of business-class travel. The CENTCOM regulation that I recall reviewing was 310-2. After my own review of these regulations and after determining whether travel to the Area of Responsibility (AOR) of CENTCOM met the requirements of the JFTR and CENTCOM regulation, I concluded that business-class travel to the CENTCOM AOR was in keeping with CENTCOM regulations and the JFTR. I also concluded that because [the applicant’s rank and name omitted] was the CENTCOM special staff director for special operations, that he was able to make the determination whether business-class travel to the CENTCOM AOR was authorized. In essence, it was my opinion, that because the CENTCOM AOR was outside of the continental United States, required air travel in excess of fourteen hours and did not involve Rest Over Night (RON), that [the applicant’s rank and name omitted] could authorize his business-class travel both to and from the CENTCOM AOR.”
“As indicated in my testimony of 10 April 2000, I concluded that as long as the CENTCOM regulation and JFTR fourteen hour rule was applicable, and as long as [the applicant’s rank and name omitted] approved the business-class travel, such travel was authorized. I know that is what I explained to [the applicant’s rank and name omitted] at SOCCENT on numerous occasions, as well as other members of the SOCCENT staff. As I indicated in my 19 May 2000 DAIG testimony, I believe that [the applicant’s rank and name omitted] was informed properly, by me, at the time the question arose and that he was able to make correct judgments about traveling business-class travel to the CENTCOM AOR based on advice he received from me.”
Further explanation by the former SOCCENT JA attests that the applicant’s travel in the CENTCOM AOR was hectic and that in his experience with the applicant any decision to use business-class travel was mission driven. Further, the former SOCCENT JA stated his belief that the applicant showed deference and concern for complying with military regulations and policies and often stated that he did not want to do anything immoral, illegal, or unethical. Finally the former SOCCENT JA stated that the applicant never required him, directly or indirectly, to justify business-class travel for him to the CENTCOM AOR and no one ever implied that only business-class travel would be flown to CENTCOM AOR.
The counsels then presented the former SOCCENT JA’s description of the events involving the executive officer’s modification of the blanket travel orders:
“As I testified on 19 May, 2000 in the DAIG investigation, sometime after my initial testimony and before my 19 May, 2000 testimony I had a conversation with Navy Lieutenant Commander [name omitted] who was the [the applicant’s rank and name omitted] Executive Officer. To the best of my recollection, LCDR [executive officer’s name omitted] had come to my office and told me that he had altered [the applicant’s rank and name omitted] blanket travel orders because he understood [the applicant’s rank and name omitted] was authorized to travel business-class. He explained to me he had done this on his own and that he felt there was no problem doing a little cut and paste to cut through the red tape. I do recall that he told me [the applicant’s rank and name omitted] absolutely did not know about what he had done and it was something LCDR [executive officer’s name omitted] did on his own.”
Counsel then sets forth the argument that there was a “somewhat hostile working relationship between SOCCENT and some CENTCOM staff.” In this matter, the former SOCCENT JA stated:
“[The applicant’s rank and name omitted] had been the Commanding General of SOCCENT for several years prior to this DAIG investigation. As CG [Commanding General], SOCCENT, he had traveled to the CENTCOM AOR frequently due to mission requirements, and my recollection is that requests to travel to the CENTCOM AOR by business-class without a Rest Over Night were routinely approved by CENTCOM. Eventually, I noticed that the CENTCOM Judge Advocate and the CENTCOM Comptroller began objecting to some of SOCCENT’s activities, whether they were mission related or not, and I do not think that [the applicant’s rank and name omitted] and certain members of the CENTCOM staff got along. Based on flip comments that I heard from the CENTCOM legal staff, there was a feeling that [the applicant’s rank and name omitted] should not fly business-class to the CENTCOM AOR. However, [the applicant’s rank and name omitted] was a mission-oriented Commander with a sensitive mission that made his schedule demanding and hectic…I was completely satisfied that his business-class travel to and from the CENTCOM AOR, without Rest Overnights, was completely authorized…”
Counsels for the applicant then addressed the issue of whether or not the applicant created an understanding among his staff that alternatives to business-class travel could not be considered. The counsels contend that the DAIG could not substantiate that the applicant did create this understanding. In support of their contention, they cited testimony of the SOCCENT Comptroller and Resource Manager and pointed out that she also signed the blanket travel orders with requests dates of 21 September 1998 and 27 July 1999.
The SOCCENT Comptroller and Resource Manager confirmed that if a question arose about expenditure of funds that the matter “was usually run through legal” and that the applicant “always seemed concerned about following the rules.” She also “recalled” that the necessity for business class travel had to do with the mission of SOCCENT in that when the general’s trying to meet with dignitaries their schedules are not flexible and that the fact that SOCCENT headquarters is not in the AOR causes travel and often at the “drop of a hat.” She also recalled that no one really raised an issue over business-class travel and that she never knew of any intent by the applicant to travel in business-class or in which status he ever traveled. The applicant’s counsels concluded that the testimony of the SOCCENT Comptroller and Resource Manager, combined with the testimony of the former SOCCENT executive officer and the former SOCCENT JA, make it clear the applicant was sensitive about regulatory policy and that he did not create an understanding that business-class travel to the CENTCOM AOR should be authorized.
Counsels then assert that the DAIG synopsis is no longer correct with regard to the conclusion that the applicant’s business-class travel to the CENTCOM AOR was not justified. They base this contention on the statement by the former CINCCENT, in command at the time in question, to the PRB that he would have approved the applicant’s business-class travel to the CENTCOM AOR had it been processed through his office. The counsels state:
Clearly, [the applicant’s rank and name omitted] business-class travel was justified in the judgement (sic) of the former CENTCOM CINC.”
The counsels for the applicant conclude their addendum to the application with a summary and specific request for correction of records:
“The removal of Applicant from the Calendar Year 2000, Major General, Army Competitive Category, Promotion Selection List was an error or injustice which should be corrected because the DAIG synopsis which was the precise basis for [the applicant’s rank and name omitted] referral to the Promotion Review Board is no longer substantiated. The adverse comments in the DAIG synopsis that (1) [the applicant’s rank and name omitted] business-class travel was not justified and (2) business-class travel was authorized by travel orders of questionable origin is no longer substantiated.”
BG (Ret’d) [applicant’s last name omitted] requests his military records be corrected to reflect that (1) he was not removed from the Calendar Year 2000, Major General, Army Competitive Category, Promotion Selection List, (2) he was promoted retroactively to the U.S. Army military grade of Major General (O-8) effective on such date as his promotion would have taken place had he not been removed from the Major General Promotion List and (3) he is otherwise authorized to return to active duty with constructive time in grade and service.”
In support of this application to the Army Board for Correction of Military Records (ABCMR), counsels submitted three volumes, identified as Volume I of III Volumes, Volume II of III Volumes, and Volume III of III Volumes. At Tab A of Volume I is an index of all documents submitted in the three cited volumes by counsel in support of the applicant’s case. This index also lists page references keyed to testimony or evidence in the redacted copy of the ROI prepared by the DAIG and provided to the applicant’s counsels.
Volume I consists of Tab A which is the index already referenced and Tab B is composed of documents at numbered Tabs 1 through 39. The preponderance of these documents are extracts from the DAIG ROI and other documents and statements which relate directly to the arguments and conclusions presented by counsel in the 35-page addendum to the application.
Volumes II and III comprise Tab C which is essentially the redacted copy of the DAIG ROI beginning with a page numbered by the DAIG as “30” and ending with a page numbered by the DAIG as “884.” The DAIG withheld approximately 320 pages of the ROI from release to the applicant’s counsels under exemptions specified in the Freedom of Information Act.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant was appointed a second lieutenant of infantry on 11 August 1972 and entered active duty on that same date. He initially served in several capacities as an infantry officer in psychological operations, mechanized, and Ranger units. In 1981, the applicant began a series of staff and command assignments in U.S. Army Special Forces units, culminating in command of the 10th Special Forces Group and followed by assignment as the Deputy Chief of Staff for Operations (DCSOPS) of the U.S. Army Special Operations Command (USASOC).
The applicant was advanced to the rank of Brigadier General effective 1 October 1997 and was assigned as the Commanding General of SOCCENT headquartered at MacDill Air Force Base in Tampa, Florida. The applicant was serving as the Commanding General of SOCCENT at MacDill Air Force Base at the time the questionable business-class travel occurred.
The Calendar Year (CY) 2000, Major General, Army Competitive Category, Promotion Selection Board convened on 1 February 2000 to consider Brigadier Generals on the Active duty List for promotion to Major General. The Board adjourned on or about 5 February 2000. The applicant was among those officers selected for advancement.
By memorandum, dated 21 March 2000, the Vice Chief of Staff of the Army directed inquiry by the DAIG into allegations submitted in a 7 December 1999 letter by an anonymous complainant to the Department of Defense (DOD) Hotline.
On 30 May 2000, the President of the United States announced the names of the officers nominated for promotion to Major General, but the applicant’s name was withheld from this list due to adverse information reported to HQDA currently under investigation. The list of officers nominated by the President, which did not contain the applicant’s name, was confirmed by the Senate on 6 October 2000.
Effective 2 July 2000, the applicant was reassigned to Fort Bragg, North Carolina, as the Commanding General of the U.S. Army Special Forces Command. This general officer position is authorized an officer in the rank of major general/pay grade O-8.
On 10 October 2000, the U.S. Army Inspector General Agency published a ROI (Case 00-021) into the matters raised against the applicant in the letter to the DOD Hotline. The Executive Summary for this ROI states that three allegations were not substantiated, but during preliminary inquiry a fourth allegation was discovered, specifically that the applicant “improperly [t]raveled airline business-class during TDY travel from Headquarters (HQ), SOCCENT, to the U.S. Central Command (CENTCOM) area of responsibility (AOR).” The executive summary stated that this fourth allegation was substantiated.
The synopsis contained in the executive summary prepared by the DAIG stated:
“[The applicant’s rank and name omitted] consistently used airline business-class travel accommodations that were reserved by his [name of the applicant’s executive officer omitted]. These accommodations were obtained with travel orders that had been modified after approval. While regulations made it possible to use business class, they did so only under exceptional circumstances to be considered on a case by case basis. [The applicant’s rank and name omitted] business-class travel was routine rather than exceptional, was not justified, and was authorized by travel orders of questionable origin.”
The executive summary of the DAIG ROI also contained consideration of the allegations and specifically addressed “Allegation #4” which was the allegation that the applicant improperly traveled airline business-class during TDY travel from SOCCENT headquarters to the CENTCOM AOR.
The DAIG consideration of the allegation initially displayed all of the pertinent standards, which included the JFTR; DOD Directive 4500.9 (Transportation and Traffic Management), dated 26 January 1989; CENTCOM Regulation 310-2 (Travel), dated 28 February 1996; and a 2 November 1998 memorandum signed by the Secretary of the Air Force.
The JFTR cites presented by the DAIG (Tab 11, pages 41 and 42) stated essentially that government policy was that members who used commercial air carriers on official business used coach class, that appropriate authority in accordance with Service regulations could authorize use of business class accommodations, that business-class travel was authorized based on the 14 hour rule as previously discussed in this Memorandum of Consideration; that travel orders authorizing business-class travel had to be properly annotated as such; that the orders authorizing and issuing official direct the travel and was responsible for funding it; and that travelers would convince the orders authorizing and issuing official of the mission justification for reimbursement.
DOD Directive 4900.9, as cited by the DAIG, essentially stated that business-class travel was authorized when justification, based on mission requirements, was submitted in advance, and approval was obtained from the appropriate approval authority which was the Director of the Joint Staff for personnel assigned to unified commands. This directive stated that otherwise DOD members used coach-class accommodations.
CENTCOM Regulation 310-2, as cited by the DAIG, stated essentially that blanket travel orders were approved by the DCINC of CENTCOM; that the Commanding General of SOCCENT approved TDY requests and special authorizations for subordinate personnel, but his own travel was approved by the DCINC of CENTCOM; that the need for business-class travel was situation dependent; and that business-class travel on subsequent legs of a multi-leg TDY trip within the AOR and on the return leg was not authorized; and that business-class travel on the return leg was to be specifically identified and justified as mission essential on TDY orders.
The 2 November 1998 Secretary of the Air Force memorandum (Subject: Use of Business Class by Senior Air Force Travelers), cited in part by the DAIG, stated that business-class travel was not common practice and that an exceptional circumstance, such as the requirement to perform official duties on arrival, was necessary to justify business class travel.
The consideration of the allegation displayed all of the pertinent documents considered by the DAIG including a DD Form 1610 (Request and Authorization for TDY Travel of DOD Personnel with a date of request of 21 September 1998; a DD Form 1610 with a date of request of 27 July 1999; 15 memoranda, a CENTCOM Form 14 (Action Processing Form; and DD Forms 1610, dated 21 September 1998 and 27 July 1999.
The original copies of the DD Forms 1610 with a request date of 21 September 1998 and with a request date of 27 July 1999 on file with the 6th Comptroller Squadron (MacDill Air Base Finance Office) do not contain a special authorization for business-class travel for the applicant.
A 4 October 1999 memorandum signed by the DCINC of CENTCOM and addressed to the Commanding General of SOCCENT stated that effective immediately, any requirement for SOCCENT to process SOCOM-funded expenditure documents (e.g. travel orders) through CENTCOM was cancelled. However, paragraph 2 of this memorandum requires compliance with all regulations, directives and policies as stated in the following:
“Your organization’s acceptance of the MIPR [Military Interdepartmental Purchase Request] will constitute assurance that the funds provided will be used exclusively for the named project as approved and that you will comply with all USCENTCOM and Department of Defense directives and written policies, the Joint Federal Travel Regulations, and other applicant Federal regulations.”
A 27 January 1997 memorandum stated the government policy on the use of contract airline scheduling and why the servicing travel office was obliged to follow that policy.
A memorandum for record, dated 20 May 1997, stated that the applicant sought the cancellation of the servicing travel office’s contract with the government because the servicing travel office would not meet his travel requirements.
A memorandum with attachments, dated 21 August 1997, stated that the servicing travel office was required to adhere to the terms of the contract despite the [the applicant’s rank and name omitted] requests to the contrary.
A memorandum, dated 25 September 1997, stated that a member from [the applicant’s rank and name omitted] office apologized for [the applicant’s rank and name omitted] conduct and that in the future a representative of [the applicant’s rank and name omitted] would conduct all business with the servicing travel office.
A memorandum for record, dated 19 May 2000, stated that the servicing travel office was often directed to book flights for [the applicant’s rank and name omitted] in classes that would upgrade even if the booking resulted in a higher cost to the government. This memorandum further stated that a trip coordinator assigned to SOCCENT told the servicing travel office that if additional authorization was needed on orders he would type it on the spot.
A CENTCOM Form 14, dated 30 September 1996, shows that CENTCOM policies and restrictions on use of business-class travel had been disseminated to SOCCENT, specifically the SOCCENT Comptroller and Resource Manager.
Memoranda for Record, dated 24 and 25 April 2002, documented telephone calls wherein it was stated that [the applicant’s rank and name omitted] travel was noteworthy for its special authorizations and variance from the norm. It was also stated that [the applicant’s rank and name omitted] conduct was not always professional. In fact, this memorandum documents an incident in 1997 when the applicant “rampaged” in the serving travel office and became upset when asked for approval of his special authorization travel, later sent his lawyers around to “smooth her ruffled feathers”, and in September 1997 an apology was rendered on behalf of the applicant wherein it was stated that she would not have to put up with any of the [the applicant’s rank and name omitted] invective anymore.
Memoranda, dated 3 December 1998 and 13 May 1999 stated business-class travel was required for [the applicant’s rank and name omitted].
A Memorandum for Record, dated 23 March 2000, documented the fact the applicant’s blanket travel orders, dated 21 September 1998 and 27 July 1999, did not include a statement requesting business-class travel.
A memorandum dated 20 November 1997 and signed by the CENTCOM DCS, stated that business-class travel was to be fully justified and approved only when absolutely necessary.
Memoranda, dated 6 January 1999 and 26 February 1999 and signed by the CENTCOM DCS, stated that business class travel was prohibited unless an exception was granted by the DCINC of CENTCOM.
A memorandum, dated 18 February 2000, stated that [the applicant’s rank and name omitted] must fly business-class travel for medical reasons.
The DAIG’s consideration of the allegation also presented pertinent testimony.
An employee at the 6th Comptroller Squadron essentially testified:
1) Business-class travel was not automatic, required extenuating circumstances, and had to be approved by CENTCOM.
2) The applicant’s travel orders did not contain an authorization for business-class travel, business-class travel had to be approved by the DCINC and he would not have approved it on blanket travel orders.
3) CENTCOM was really strict on business-class travel and the applicant and his executive officer knew that business-class travel was the exception, that it cost a great deal more and the requirements necessary to obtain it. She never saw an approved request for business-class travel for [the applicant’s rank and name omitted].
An employee from the servicing travel office essentially testified:
1) Fewer than two percent of the travelers from MacDill Air Force Base traveled in business-class accommodations and most of that two percent was [the applicant’s rank and name omitted].
2) [The applicant’s rank and name omitted] told her that he would find a way around the travel stipulations of the servicing travel office.
3) Many of her employees, including military dependents, complained about what they thought was an abuse of the system by [the applicant’s rank and name omitted], especially his use of business class.
4) It was understood that [the applicant’s rank and name omitted] traveled business class.
5) [The applicant’s rank and name omitted] executive officer told her that [the applicant’s rank and name omitted] did not like to sleep in hotels or wait during layovers. He felt nonproductive in doing so.
6) [The applicant’s rank and name omitted] was irate in front of her and her staff, he was unprofessional, and she felt intimidated by [the applicant’s rank and name omitted] size and behavior.
7) The servicing travel office advised SOCCENT executive officers of alternatives to business-class, but they always responded that [the applicant’s rank and name omitted] wanted business-class and would get it authorized on orders.
The CENTCOM DCS essentially testified:
1) He acted under the authority of the DCINC of CENTCOM with respect to approval of travel orders and, from time to time, a flag officer could present a compelling case to travel business-class travel.
2) He used the 2 November 1998 Secretary of the Air Force memorandum (Subject: Use of Business Class by Senior Air Force Travelers) to further redefine the 14 hour rule in the JFTR. If a traveler had to walk off a plane straight into a meeting, he was probably justified in requesting business class travel. Otherwise, coach class was the way to travel.
3. At the DCINC’s direction, he required flag officers to justify to the DCINC in writing the reasons for business-class travel. This requirement reduced the number of such requests drastically.
4) The restrictions and policy on business-class travel were well understood throughout CENTCOM. He personally discussed them with (name omitted) and their discussion did not result in an approval from him. He was aware that [the applicant’s rank and name omitted] tried to travel business-class at every opportunity because he needed extra comfort. [The applicant’s rank and name omitted] time was valuable.
5) Although he did not remember seeing [the applicant’s rank and name omitted] blanket travel orders, he doubted that he would have approved blanket authorization to travel business-class.
During his first interview by the DAIG, the SOCCENT JA at the time in question essentially testified:
1) [The applicant’s rank and name omitted] was very concerned about doing things right. He wanted things done in compliance with regulations and wanted to know where policies came from.
2) He first became aware that the propriety of business-class travel was an issue in the fall of 1997. Traveling in business-class by [the applicant’s rank and name omitted] was routine by June 1998. He researched the JFTR and CENTCOM Regulation 310-2. The JFTR authorized business-class travel if the traveler crossed time zones and the travel exceeded 14 hours. He advised that [the applicant’s rank and name omitted] should consider other forms of travel. CENTCOM Regulation 310-2 allowed [the applicant’s rank and name omitted] to approve his own special authorization for business-class.
3) He never consulted with the CENTCOM Comptroller although (name omitted) agreed with him that business-class travel for [the applicant’s rank and name omitted] should not have been a problem. Justifications for individual trips did not occur for the past two years due to blanket orders.
4) He did not see the statement “business-class travel” on [the applicant’s rank and name omitted] travel orders.
5) Business-class travel for [the applicant’s rank and name omitted] was not wrong in any way.
Upon recall by the DAIG, the SOCCENT JA at the time in question essentially testified:
1) Business-class travel came to his attention in the late summer of 1997. He remembered some CENTCOM point papers around that time. [The applicant’s rank and name omitted] was informed of these.
2) [The applicant’s rank and name omitted] never directed him to justify business-class. It was understood that he wanted to travel that way because of his tight schedules. He did not like to remain overnight. His [the SOCCENT JA] advice was given freely and without mental reservation.
3) [The applicant’s rank and name omitted] executive officer recently told him that he had altered [the applicant’s rank and name omitted] orders in order to expedite processing.
An unidentified person essentially testified:
1) Everyone in the command group knew business-class travel was extraordinary and required command group approval.
2) Blanket travel orders would not be used to authorize business-class travel.
3) Approvals for business-class travel still followed chain of command lines even as funding oversight shifted to SOCOM after 4 October 1999. SOCCENT was still responsible to CENTCOM for compliance with all regulations.
4) The 14 hour rule was not a justification by itself. If there was no reason for going straight to work on arrival after TDY travel, then the traveler should have traveled by coach class.
Another unidentified person essentially testified:
1) She found no justification for [the applicant’s rank and name omitted] travel.
2) [The applicant’s rank and name omitted] filed an improper travel voucher.
An unidentified civilian (GS-7) from the 6th Transportation Squadron essentially testified:
1) About two percent of travel orders contained authorization for business class.
2) [The applicant’s rank and name omitted] travel stood out among the rest because he always traveled business-class and this manner of travel was so expensive. It did not seem right as no one else got to do it.
3) Sometimes, when submitted in support of travel requests, his orders did not have business-class authorization. Soon after this was pointed out, this oversight was corrected.
4) He talked to a representative of the SOCCENT comptroller to make sure they understood the rules.
The applicant essentially testified:
1) His executive officer set up all of his trips. [The applicant’s rank and name omitted] gave the executive officer his objectives for the trip and whom he wanted to see. He often met with his forward element commander and Deputy Chiefs of Mission (DCM) upon arrival in the AOR.
2) His predecessor in command told him that business-class was okay if the traveler did not remain over night. The SOCCENT JA confirmed that it was okay to travel business class based on the 14 hour rule. The applicant told his executive officer that he was going to travel business-class.
3) He did not get involved in preparing travel orders and did not know the reason for the statement “business-class authorized” on his orders. He did not know where his original orders were.
4) When shown two DD Forms 1610 one with authorization for business-class travel and one without such authorization, he was unable to explain why there as a difference.
5) The applicant had no idea why his signature appeared on travel orders filed with the travel voucher for the January 1999 trip and not on the orders filed with other trips.
6) He was very busy. A remain over night did not provide him the rest he needed and could have jeopardized the mission if used. Whoever was in charge usually met him on arrival as a rule although he did not know if this was always the case. He could not have performed his mission the way CINCCENT wanted him to do it by traveling coach class. He was not aware of the cost differential between business versus coach class. Considering his mission, he would personally buy business-class tickets, if necessary.
7) Other senior officers did not have the same job or mission requirements that he did and therefore did not need to travel business-class. The effects of prolonged travel were cumulative resulting in memory loss and circulatory problems. He had to be alert because he made decisions on behalf of CINCCENT which could have affected national security.
8) His wife accompanied him in business class by using her own frequent flyer miles.
9) He took advice from the SOCCENT JA and he adhered to regulations. He never did anything illegal.
The consideration of the allegation by the DAIG also provided a discussion of the facts and evidence.
1) The JFTR essentially provided for premium class travel based on the 14 hour rule, but CCR 310-2 required business-class travel be approved by the CENTCOM DCS acting for the DCINC of CENTCOM, with CENTCOM Comptroller concurrence. Both regulations stressed that a careful cost and mission analysis be done for each trip during which business class travel was considered. This analysis served to convince the orders approval authority that a request for business-class travel was justified. Business class travel was prohibited on subsequent legs of a multi-leg TDY. CENTCOM used Air Force policy to supplement the JFTR in regard to the 14 hour rule to allow use of business-class travel if essential business was conducted on arrival.
2) During review of travel documentation and testimony associated with allegations #1 through #3, the routine use of business class travel by [the applicant’s rank and name omitted] was apparent and a potential conflict with regulatory guidance deemed further analysis necessary.
3) The investigating officer determined that the cost of business-class accommodations was shown to be two to three times the cost of coach class.
4) Evidence indicated that SOCCENT used a locally supplemented travel order that could be printed on two different pages. The first page of [the applicant’s rank and name omitted] travel orders for fiscal year 1999 and 2000 were appropriately prepared, coordinated and approved. The second page apparently contained no request for business class travel when submitted with the first page. Thirteen of [the applicant’s rank and name omitted] TDY trips and accompanying paperwork were examined which showed that orders submitted with the travel vouchers had been modified without command approval to show business-class travel authorized. The applicant’s executive officer chose not to answer questions which could have explained why this was the case. The applicant was also unable to contribute an explanation. Additional evidence showed that blanket travel orders would not have been approved for business-class travel, but they were necessary in order to obtain business-class airline bookings through the servicing travel office. File copies of [the applicant’s rank and name omitted] official orders at the CENTCOM comptroller’s office and the 6th Comptroller Squadron show no authorization for business-class travel.
5) [The applicant’s rank and name omitted] was well known for traveling business class, and his choice of accommodations was questioned by many of those who were involved in the processing of his travel. His requests, either personally made or through his staff, created the perception that he abused regulatory and contract requirements for personal benefit.
6) While [the applicant’s rank and name omitted] schedule was demanding, considering the days and hours he arrived in the AOR, he was unable to show a mission-related requirement to conduct essential business immediately upon arrival or why he could not have taken a RON. Despite specific regulatory prohibitions, he routinely traveled business class on intermediate and return legs of TDY trips without authorization other than what was stated on travel orders submitted with his vouchers.
7) The essential requirements for business-class travel as spelled out in the JFTR and the CCR 310-2 were adequately disseminated and well understood by the SOCCENT comptroller and staff judge advocate. Testimony indicated that [the applicant’s rank and name omitted] desire to travel business class was strong enough to create an understanding among his staff that alternatives could not be considered. After traveling business-class for three years, [the applicant’s rank and name omitted] evidently sought to buttress the legitimacy of his business-class travel by seeking medical justification which occurred just four days after he was notified of a preliminary inquiry into his travel.
8) [The applicant’s rank and name omitted] was notified on 14 February 2000 of the preliminary inquiry.
9) The preponderance of evidence shows that [the applicant’s rank and name omitted] was not authorized to travel in business class accommodations, and despite the existence of rules to the contrary, [the applicant’s rank and name omitted] used his position to avoid compliance with government policy.
The consideration of the allegation presented the following conclusion:
“The allegation that [the applicant’s rank and name omitted] improperly traveled airline business-class during TDY travel from HQ SOCCENT to the CENTCOM AOR was substantiated.”
By General Officer Management Office letter, dated 16 January 2001, the applicant was notified that he was being referred to a PRB to determine if he should be retained or removed from the 2000 Major General Promotion List based on a DAIG substantiated allegation. This letter stated that the applicant’s OMPF, Officer Record Brief (ORB), official photograph, and the DAIG substantiated allegation that he improperly traveled airline business class during temporary duty travel would be submitted to the PRB. The applicant was also provided the opportunity in accordance with Army Regulation 600-8-29 (Officer Promotions) to submit comments on the information which would be seen by the PRB.
The applicant submitted a memorandum to the President of the PRB in which he requested that he be retained on the 2000 Major General Promotion List. He stated that he accepted full responsibility for his actions and accepted the findings of the 10 October 2000 DAIG ROI. The applicant further stated:
“3. As a result of legal advice rendered at the time, as well as the professional demands that I be productive during and immediately after flights that averaged in excess of 20 hours, I believed that my travel was upgraded correctly in accordance with the Joint Travel Regulations. In no way were the upgrades pursued for personal comfort. All my travel was in response to requirements as directed by the Commander-in-Chief United States Central Command (CINCCENT), and my responsibilities as Commanding General Special Operations Command Central. I did not personally change, nor order anyone on my staff to change or modify any travel orders, and believed that all such orders originated properly from my command. Finally, as stated by the Vice Chief of Staff of the Army in his Memorandum of Concern to me of 11 December 2000 (Encl 1) CINCCENT would have approved the method of travel had I known to process each request through his staff. I have also included in my response a recent letter to the Board [PRB] written on my behalf by the former CINCCENT, General [name omitted].
4. In his 11 December 2000 memorandum, the Vice Chief of Staff of the Army concluded that he considered the matter closed. In order to eliminate any perception of noncompliance, I have taken the necessary steps to ensure that every one in this command, to include myself, be trained on all aspects of Ethics and Standards of Conduct, to include travel regulations.
5. Enclosed are additional letters of support from general officers with whom I have served (Encls 3, 4, 5, 6, and 7). I hold high the trust and confidence my Army has in me, and in those who are assigned to my command, and will continue to Soldier On.”
Attached to the applicant’s memorandum are the Memorandum of Concern from the Vice Chief of Staff of the Army and letters to the President of the PRB from six senior general officers supporting retention of the applicant on the Major General Promotion Selection List.
On 5 February 2001, the PRB convened. After careful consideration of all matters presented, the members of the PRB voted in the majority to recommend to the Secretary of the Army that the applicant’s name be removed from the 2000, Major General, Army Competitive Category, Promotion Selection List.
After considering the recommendation of the PRB, the Secretary of the Army recommended on 13 April 2001 to the Deputy Secretary of Defense that the applicant’s name be removed from the CY 2000, Major General, Army Competitive Category, Promotion Selection List.
By memorandum, dated 20 June 2001, the Deputy Secretary of Defense recommended to the President of the United States that the applicant’s name be removed from the CY 2000, Major General, Army Competitive Category, Promotion List under the provisions of Title 10, United States Code, Section 629(a).
The Deputy Secretary of Defense’s memorandum stated that the applicant was found to have improperly traveled using airline business-class accommodations during temporary duty travel from Headquarters SOCCENT to the CENTCOM AOR. It further stated that the Vice Chief of Staff of the Army issued a Memorandum of Concern which rebuked the applicant for his behavior and that the Vice Chief of Staff of the Army elected not to file the Memorandum of Concern in the applicant’s official file. The memorandum also described the action by the PRB and that six senior General Officers had written to the President of the PRB supporting the applicant’s promotion to major general.
On 2 July 2001, the President of the United States approved the removal of the applicant’s name from the 2000, Major General, Army Competitive Category, Promotion Selection List.
The applicant was notified by General Officer Management Office letter, dated 10 July 2001, that the President of the United States had approved removal of his name from the CY 2000, Major General, Army Competitive Category, Promotion Selection List. The Chief of the General Officer Management Office also advised the applicant that his removal from the promotion selection list did not constitute nonselection for promotion and that he continued to be eligible for promotion consideration.
On 20 July 2001, the applicant voluntarily requested retirement effective 1 January 2002.
The applicant’s OMPF shows that the Commanding General of USASOC issued a General Officer Memorandum of Reprimand (GOMR), dated 2 November 2001, to the applicant. The GOMR was issued as an administrative measure, not as punishment under Article 15 of the Uniform Code of Military Justice. After review of the matters submitted by the applicant, the Commanding General of USASOC directed filing of the GOMR in applicant’s OMPF.
The Commanding General of USASOC issued this GOMR based on the following information:
“1. A recent Criminal Investigate Division (CID) investigation disclosed that you misused a government calling card on numerous occasions while the Commanding General of U.S. Army Special Forces Command. Specifically, between 1 July to 30 August 2000, you used a CENTCOM-owned government telephone calling card after you had been reassigned to USASOC to charge calls in the amount of $804.78 in violation of DoD Regulation 5500.7-R, the Joint Ethics Regulation, section 2-301.”
The Commanding General of USASOC reprimanded the applicant as follows:
“2. You are hereby reprimanded. As the Commanding General, you were expected to always maintain a level of judgment commensurate with the trust reposed in you by your superiors, fellow soldiers, and subordinates. Your responsibilities included exercising good stewardship of precious resources, and never taking advantage of your position or abuse the privileges afforded you in your office. Your misconduct is a grave disappointment to me and to all those who have depended on you to lead and mentor your subordinates.”
On 21 November 2001, orders were published by the U.S. Total Army Personnel Command separating the applicant from active duty effective 31 December 2001 and placing him on the retired list effective 1 January 2002 in the grade of Brigadier General/pay grade O-7.
Title 10, United States Code, Section 1552 provides that the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. The law further states that corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department. This provision of law is the basis for the operations of the ABCMR.
Title 10, United States Code, Section 629(a) governs the removal of a commissioned officers name from a promotion list. This provision of law states that the President may remove the name of any officer from a list of officers recommended for promotion by a selection board convened under this chapter of Title 10. The law also states that an officer, whose name is removed from a promotion list under this section, continues to be eligible for consideration for promotion and that if he or she is subsequently recommended and promoted, then the Secretary of the military department concerned may upon such promotion grant that officer the same date of rank, the same effective date, the same effective date for the pay and allowances of the grade to which promoted and the same position on the active duty list as that officer would have had if his or her name had not been removed.
Chapter 8 of Army Regulation 600-8-29 (Officer Promotions) governs Promotion Review Boards (PRB). The regulation states that the President or his designee may remove the name of an officer in a grade above second lieutenant from a list of officers recommended by a selection board (10 USC 629(a)) and that this authority has been delegated to the Secretary of the Army. The regulation further states that PRB’s are used to advise the Secretary of the Army in any case in which there is cause to believe that a commissioned officer on a promotion list is mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he or she was selected for promotion.
Chapter 8 of Army Regulation 600-8-29 states in pertinent part that Headquarters Department of the Army (HQDA) will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade. An officer may be referred to a PRB for many reasons which include, but is not limited to, a referred officer evaluation report, punishment under Article 15 of the Uniform Code of Military Justice, any court-martial conviction, a memorandum of reprimand placed in the Official Military Personnel File (OMPF), adverse documentation filed in the OMPF, initiation of elimination proceedings, failure to make satisfactory progress in a weight control program, or other derogatory information received by HQDA but not filed in the OMPF. The regulation also provides that, in cases involving promotion to or within general officer grades, the Vice Chief of Staff of the Army is authorized to refer a case to a PRB.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The Board considered the application, the 35-page addendum to the application, attachments at numbered Tabs 1 through 39 and the redacted copy of the DAIG ROI, dated 10 October 2000, submitted by the applicant and his counsels.
2. The Board reviewed counsels’ presentation of the facts and circumstances leading to the applicant’s removal from the CY 2000, Major General, Army Competitive Category, Promotion Selection List.
a. The Board noted the information provided on the CENTCOM AOR and the contention that the SOCCENT mission is unique and that it was further complicated when SOCCENT was assigned the operational lead for CENTCOM in the Central Asian states of Kazakhstan, Uzbekistan, Kyrygzstan, and Turkmenistan.
b. The Board reviewed the redacted copy of the DAIG report submitted by the applicant and noted the facts and circumstances related to the DAIG ROI set forth by his counsels. The Board noted several facts presented by counsels for the applicant. The three original allegations against the applicant were not substantiated and the fourth allegation of improper use of business-class travel arose from inquiry into travel documents for 13 trips between 28 January 1999 and 14 January 2000. The DAIG substantiated the allegation of improper use of business-class travel in part because the applicant’s executive officer at the time appeared to have annotated the applicant’s blanket travel orders authorizing business-class travel. The applicant voluntarily provided testimony during the course of the DAIG investigation that his trips were essential, that his command judge advocate opined business-class travel was authorized base on the 14 hour rule and his executive officer made all of the applicant’s travel arrangements. The SOCCENT JA testified that the applicant relied on his advice, that the 14 hour rule was the “single overriding factor” which authorized business-class travel, and that, subsequent to his first testimony, the applicant’s executive officer admitted to the SOCCENT JA that he altered the applicant’s blanket travel orders to authorize business-class travel.
c. The Board reviewed the facts and circumstances set forth by counsels for the applicant related to the PRB. Specifically, the Board reviewed the Memorandum of Concern issued by the Vice Chief of Staff of the Army to the applicant for repeated use of business-class travel without proper approval and the applicant’s submission to the President of the PRB and the letters of support from six senior General Officers to the President of the PRB.
3. The Board reviewed counsels’ contention that the former executive officer to the applicant has provided “new evidence” and has explained why he made business-class travel arrangements for the applicant to the CENTCOM AOR. In particular, the Board noted the former executive officer’s admission that he altered the applicant’s blanket travel orders after they had been approved in order to cut through “red tape.” Further, it was noted that the former executive officer believed that business-class travel was authorized based on the 14 hour rule and the legal opinion of the SOCCENT JA as well as the fact that the DCINC of CENTCOM had approved the initial request for business-class travel for the applicant. The Board also noted that the former executive officer stated that the applicant had no knowledge of his actions.
4. The Board also reviewed the assertions by the counsels that the applicant’s business-class travel to the CENTCOM AOR “appeared to meet JFTR and CENTCOM regulatory and policy requirements,” that regulations and policies “reasonably appeared to authorize business-class travel to the CENTCOM AOR”; that business-class travel to the CENTCOM AOR would have been approved by the former CINC of CENTCOM; that business-class travel “appeared authorized” to the CENTCOM DCS; and the SOCCENT JA provided legal advice that business-class travel was authorized.
5. The Board noted counsels’ conclusion that, in view of the former executive officer’s statement, the blanket travel orders showing authorization for business-class travel are no longer of “questionable origin.”
6. The Board reviewed the DAIG discussion to the effect that the applicant created an “understanding” among his staff that alternatives to business-class travel could not be considered. The Board also noted counsels’ contention that the DAIG did not substantiate such an “understanding” existed.
7. Based on review of all of the evidence and consideration of all of the matters and contentions in this case, the Board determined the following:
a. The Board agrees that the applicant’s job was demanding because of the extended distances between his headquarters and the CENTCOM AOR and the emphasis placed by the CINCCENT on taking an active role and developing professional relations with the special operations forces in the CENTCOM AOR. However, the Board does not agree with the inferences and assertions of the applicant and his counsels that the long travel distance to the CENTCOM AOR justified or required the applicant to fly in airline business-class accommodations, that the guidance from CINCCENT demanded business-class travel by the applicant or in any way authorized circumventing travel regulations or policies, or that alternative travel arrangements could not be used.
b. Notwithstanding the applicant’s contentions that he had to fly business class in order to be productive, to accomplish business upon arrival and to be sufficiently rested to make critical decisions on behalf of CINCCENT and affecting national security, there is testimony to the DAIG which clearly indicates that the applicant sought business-class travel for personal comfort. Specifically there is testimony that the applicant “did not like to stay overnight,” that he wanted to travel business class because of “tight schedules,” that he needed “additional comfort,” and, by the applicant’s own admission, that he did not always conduct business immediately after flying to the CENTCOM AOR.
c. The Board also noted that the applicant flew business class on intermediate legs of his trips and on the return trip from the CENTCOM AOR to SOCCENT headquarters. This was prohibited by CENTCOM regulation and the JFTR without specific additional justification listed on the travel orders.
d. The Board carefully reviewed the matters related to the legal opinion on business-class travel rendered by the SOCCENT JA. While the SOCCENT JA believed the 14 hour rule applied and that the applicant could approve his own business-class travel, the Board concluded that the SOCCENT JA did not thoroughly address issues, consider all applicable policies, and respond to warning signs which arose in regard to the applicant’s business-class travel. The Board noted the SOCCENT JA, by his own testimony, stated that he knew the issue of business-class travel was contentious as early as the summer of 1997, that he informed the applicant of the “CENTCOM point papers regarding business-class travel “around” the summer of 1997, that he did not consult with the CENTCOM Comptroller on the matter of business-class travel, that he was unaware any other policy “going against what the JFTR or CENTCOM regs said,” that he “noticed” that the CENTCOM Staff Judge Advocate and the CENTCOM Comptroller began objecting to some of SOCCENT’s activities and that he heard “flip comments” by the CENTCOM legal staff that the applicant should not fly business-class travel, but dismissed these flip comments with speculation that the applicant did not get along with certain members of the CENTCOM staff. The Board noted that, in spite of these matters, the SOCCENT JA continued to assert that business-class travel by the applicant was proper contrary to the facts that business-class travel should have been approved by the DCINC of CENTCOM, that the applicant traveled on intermediate legs and on return trips in business-class accommodations which were strictly forbidden, and that the applicant did not always conduct business upon arrival as required under Secretary of the Air Force memorandum of which the SOCCENT JA was cognizant. The SOCCENT JA also made statements that the applicant did not like to remain over night and flew business-class travel because of tight scheduling, none of which are stated in regulation or policy as justification for business-class travel.
e. The Board also carefully reviewed the role and statement of the SOCCENT executive officer. The Board noted the executive officer’s refusal to testify to the DAIG while he was serving on active duty and that, only after he retired, did he render a statement to the applicant’s counsels. The Board noted the former executive officer admitted that he altered the applicant’s blanket travel orders to authorize business-class travel in order to “expedite the orders processing or issuing of tickets” and that he did this without the knowledge of the applicant. The Board also noted that the former executive officer stated that he believed at the time when he made travel arrangements for the applicant, as he does now, the arrangements he made for the applicant’s TDY travel “were completely proper,” particularly in view of the SOCCENT JA’s opinion and the 14 hour rule. However, the Board concluded otherwise based on the fact the former executive officer processed a request for travel to the DCINC of CENTCOM as required by regulation; therefore, he knew the procedures for approval of business-class travel and that the DCINC of CENTCOM had to approve requests for business-class travel. It is also noted that the 4 October 1999 memorandum allowing each component command of CENTCOM to process their own travel requests did not eliminate the requirement to obtain the DCINC’s approval for business-class travel. The CENTCOM DCS also testified that everyone in CENTCOM knew the procedures and that he discussed the matter with officials at SOCCENT. Evidence also shows that the SOCCENT Comptroller and Resource Manager receipted for the CENTCOM guidance on business-class travel. Therefore, the Board concluded that the applicant’s executive officer at the time in question improperly altered official documents which he knew required approval by the DCINC of CENTCOM or the CENTCOM DCS on behalf of the DCINC.
f. The Board does not dispute counsels’ contentions that regulation and policy “appear to authorize business-class travel to the CENTCOM AOR”; that CINCCENT at the time in question would have approved business-class travel for the applicant; that business-class travel “appeared” authorized to the CENTCOM DCS; and that the SOCCENT JA provided legal advice which stated that business-class travel was authorized. However, the Board concluded the issues at hand are whether or not the applicant and his staff assured that proper authority for business-class travel was obtained in advance as required by regulation and policy and that the applicant performed travel which met the stated requirements for the use of business-class travel. In this matter, the Board finds there is ample evidence, including the applicant’s testimony to the DAIG, that the applicant did not follow procedure, that he did in fact travel to and from the CENTCOM AOR in business class accommodations which were not properly authorized in advance, and that he violated specific prohibitions against travel in and about the CENTCOM AOR and the return trip to SOCCENT headquarters in business-class travel accommodations.
g. The Board noted counsels’ contention that the blanket travel orders were improperly amended by the applicant’s executive officer and that this “new evidence” resolves the issue regarding orders of “questionable origin.” However, the argument by the applicant’s counsels that the orders now are no longer of “questionable origin” has no bearing on this case. The DAIG noted in its executive summary that an unsolicited comment by the SOCCENT JA indicated that the executive officer admitted editing the orders. This conclusion in the executive summary was rendered in October 2000 well prior to the statement of the former executive officer to the applicant’s counsels in February 2002.
h. The Board reviewed the contention that there was an “understanding” among the applicant’s staff that no alternative to business-class travel could be considered. Contrary to the assertion by counsels for the applicant that the DAIG failed to substantiate this contention, the Board noted that testimony from personnel at the servicing travel agency stated SOCCENT executive officers were offered alternatives to business-class travel, but they always responded that the applicant wanted business-class travel and would get it authorized on orders. The Board also noted the testimony of the CENTCOM DCS that he was aware the applicant tried to travel business-class at every opportunity because he “needed extra comfort.”
i. The Board reviewed the DAIG’s conclusion that the applicant’s business-class travel was not authorized and counsels’ contention that this conclusion is no longer correct in view of the statement by the former CINCCENT. The Board does not doubt that the former CINCCENT would have approved the applicant’s business-class travel had it been properly justified, had it met regulatory requirements, and had it been processed through his office. But, the Board rejects the inference by the applicant and his counsels that CINCCENT would have approved all of the applicant’s business-class travel including that which was not properly justified and was not in compliance with regulation and policy. Therefore, counsels’ argument in this regard is specious and the real issue is that the applicant did not assure that his requests for business-class travel were properly processed through the CENTCOM DCINC or his DCS.
j. The Board noted that the applicant essentially takes the positions in his testimony to the DAIG and that his counsels argue he was very busy and his missions required business-class travel; he was the victim of the actions of his executive officer; he relied heavily on the legal opinion of the SOCCENT JA who stated he was authorized business-class travel; and these issues regarding his improper use of business-class travel are irrelevant because CINCCENT stated he would have approved the applicant’s business-class travel.
k. The Board does not agree with the inferences and assertions of the applicant and his counsels that the long travel distance to the CENTCOM AOR justified or required the applicant to travel in airline business-class travel or that the guidance from the CINCCENT demanded business-class travel by the applicant or in any way authorized circumventing travel regulations or policies. Furthermore, in testimony to the DAIG, the applicant was unable to show a mission-related requirement to conduct essential business upon arrival in the CENTCOM AOR or why he could not have taken an RON.
I. The Board also noted the actions of the applicant in 1997 wherein he “rampaged” in the servicing travel office, threatened or attempted to terminate the servicing travel office from further business with the government, and stated that he would find some way around the restrictions under which the servicing travel agency operated. The Board concluded that, although the SOCCENT JA opined business-class travel was proper and the executive officer falsified the travel orders, it is clear that the applicant, through his words and his actions, intended to obtain authorization for business-class travel subsequent to those events through any means including “placing demands on his staff which were legally questionable.” The Vice Chief of Staff of the Army clearly recognized this when he issued the Memorandum of Concern to the applicant for creating the perception of fiscal irresponsibility and disregard for prescribed regulatory procedures and stated that the applicant’s demands caused the members of his personnel staff “to engage in actions which were legally questionable.”
m. The Board noted that, in his statement to the President of the PRB, the applicant took full responsibility for his actions and accepted the findings of the DAIG ROI. Therefore, the Board finds that the arguments by him and his counsels which blame his executive officer and his legal officer for his removal from the CY 2000, Major General, Army Competitive Category, Promotion Selection List are without merit.
n. In its review of this case, the Board examined all matters carefully for evidence of the error and/or injustice claimed by the applicant and his counsels. The Board noted that the applicant received due process throughout the DAIG investigation, the issuance of the Memorandum of Concern, and the PRB action. The Board also determined the Deputy Secretary of Defense’s recommendation to the President of the United States was balanced in its statement of the facts of the case which were essentially derived from Army records.
o. The Board also found there was no apparent substantive error or injustice in the DAIG ROI which would invalidate allegation #4, the conclusions of the DAIG or the substantiation of the allegation regarding improper use of business-class travel by the applicant. The Board also found that the applicant and his counsels have not, through argument or presentation of evidence, overcome the preponderance of evidence upon which the findings of the DAIG are based.
p. The Board also found no error and/or injustice in the Memorandum of Concern tendered by the Vice Chief of Staff of the Army which was essentially based on information contained in the DAIG ROI.
q. The Board also found the PRB operated in accordance with governing regulation in recommending to the Secretary of the Army that the applicant’s name be removed from the CY 2000, Major General, Army Competitive Category, Promotion Selection List. There is no evidence of error and/or injustice in the recommendation of the PRB or the action by the Secretary of the Army on that recommendation which were essentially based on Army records.
8. Based on all of the foregoing, the Board determined that there was no error and/or injustice in any of the Army records related to the applicant’s case. Therefore, there is no basis to recommend that the Secretary of the Army withdraw or amend his 13 April 2001 recommendation to Department of Defense officials to remove the applicant’s name from the CY 2000, Major General, Army Competitive Category, Promotion Selection List and there also is no basis to recommend that the applicant be retroactively promoted to major general and reinstated on active duty.
9. Based on the foregoing, the Board also determined the seriousness of the applicant’s actions, as reflected in the evidence supporting his removal from the promotion list, by itself adequately supports a determination that his removal did not constitute an injustice. Although the GOMR tendered by the Commanding General of USASOC to the applicant for misuse of a government telephone calling card had no bearing on the applicant’s removal from the promotion selection list, the Board did consider this matter as further evidence of the applicant’s disregard for the need to follow regulatory guidance, particularly in the area of fiscal responsibility, and further justification for the Board’s determination that the applicant’s removal from the promotion list did not constitute an injustice in this case.
10. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy either requirement.
11. In view of the foregoing, there is no basis for granting the applicant’s request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
___PM___ __RVO__ __JPI___ DENY APPLICATION
| CASE ID | AR2002070501 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20020530 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | MR CHUN |
| ISSUES 1. | 310.0000.0000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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