MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 January 2003
         DOCKET NUMBER: AR2002073837

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Christopher J. Prosser		Member
Ms. Yolanda Maldonado		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that the substantiated finding of the Department of the Army Inspector General (DAIG) be unsubstantiated.

APPLICANT STATES: In effect, that the DAIG misapplied the law and Army policy to the facts of his particular situation when it took the highly unusual action to substantiate a finding based on a two year old investigation conducted at
Fort Irwin, California. He claims that following the Fort Irwin investigation, he received a memorandum of concern from the commanding general (CG) of the National Training Center (NTC) & Fort Irwin, which resulted in the reopening of his case by the DAIG upon his promotion to colonel (COL). He states that upon his departure from Fort Irwin, he was informed by the NTC CG and his brigade commander that all allegations were unsubstantiated, and the entire action would be kept at that level so that it would not impact his future promotions.

However, following his selection for promotion to COL, this issue came to the forefront and the DAIG substantiated the two year old Fort Irwin allegation. As a result, he was referred to the Promotion Review Board (PRB). (Note: PRB action was completed subsequent to this application being submitted and resulted in the Secretary of the Army approving the applicant’s retention on the COL promotion list).

The applicant provides the enclosed extensive statement that outlines the facts and circumstances related to his relationship with the subordinate female officer in question, which he claims resulted from his implementation of a mentorship program directed by the NTC CG. In addition, he provides his arguments in rebuttal to the findings of the Army Regulation (AR) 15-6 investigation conducted at Fort Irwin, which he claims was conducted by an overzealous investigating officer (IO), and the subsequent substantiated finding of the DAIG. He also indicates that he received counseling and a letter of concern from the NTC CG in regard to the perceptions that can exist between male and female soldiers of different ranks and this was to close the matter. He also indicates that he received above center of mass Officer Evaluation Reports (OER) from the NTC CG both before and after this investigation. He concludes that he is fully aware of the language in Army Regulation 600-20 prohibiting conduct that leads to the perception of favoritism. However, in his case, he firmly believes that the perception of a disaffected few cannot, as a matter of law, amount to a regulatory violation.

In support of his application, the applicant provides the enclosed supporting statements from the individuals indicated: NTC CG; a subordinate officer involved in the situation; his NTC brigade commander; his NTC battalion executive officer; another NTC subordinate company commander; a Fort Irwin Equal Opportunity (EO) advisor; his supervisor at a subsequent Pentagon assignment, a brigadier general; and documents in regard to his performance at Fort Irwin.

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EVIDENCE OF RECORD: The applicant's military records show:

He is currently serving on active duty in the rank of lieutenant colonel (LTC) and is assigned to duties in Pakistan. In 1999, while he was assigned as a battalion commander at Fort Irwin, an anonymous complaint to the IG alleged that he had an improper sexual relationship with a subordinate commander, a captain (CPT). As a result the CG NTC & Fort Irwin directed an investigation be conducted under the provisions of AR 15-6.

The AR 15-6 IO determined that there was no evidence of a sexual relationship between the applicant and the CPT. However, he did conclude that there was a perception of an inappropriate relationship and favoritism towards the CPT and her company. This perception was based on numerous sightings of the applicant and the CPT together at times and locations that appeared to be unusual for a battalion commander to be with a subordinate commander, which was made more damning because the subordinate commander was a female.

The IO concluded that the widely held belief that the applicant displayed favoritism toward the CPT and her company was a violation of Army Regulation 600-20. This investigation was found to be legally sufficient by the Fort Irwin Staff Judge Advocate (SJA), and it was approved by the CG Fort Irwin.

In response to a 15 September 2001 records screening request from the Total Army Personnel Command (PERSCOM), the DAIG found that the allegation that the applicant improperly created a perception of favoritism toward a subordinate officer and company, in violation of AR 600-20, Army Command Policy, was substantiated.

In December 2001, the applicant submitted a rebuttal to the DAIG’s substantiated allegation finding. A DAIG official responded to this rebuttal by indicating that after a careful review of his case, his file, and his response, it was determined that the preponderance of the evidence indicated that the allegation, that he improperly created a perception of favoritism toward a subordinate officer and company, in violation of AR 600-20, Army Command Policy, was substantiated. It was further indicated that a review of the investigation and the applicant’s rebuttal indicated that the perception was not widespread, but limited to a small group. It also indicated that while many of the actions that formed this perception were the result of the applicant’s effort to mentor the subordinate commander as directed, witnesses indicated that there were instances that the applicant and subordinate commander were together that appeared unusual. These included being at or around the BOQ, at the shoppette, or driving the subordinate commander’s car.

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On 14 March 2002, the applicant was notified that he had been selected for promotion to COL by the Fiscal Year 2001 Army Promotion Selection Board that recessed on 24 August 2001. However, his selection was being reconsidered due to a post-board screening process which produced information from the DAIG that resulted in his record being referred to a Promotion Review Board (PRB).

On 25 April 2002, the Deputy, DAIG, responded to the applicant’s request that his case be reviewed. The Deputy, DAIG, indicated that after studying the information presented by the applicant, it was determined that the applicant had offered no new evidence that would warrant changing the DAIG’s 7 December 2002 decision to substantiate the allegation against him. However, his memorandum and enclosures raised issues of mitigation that should be considered by the PRB.

On 15 July 2002, the DA PRB considered the applicant’s case and recommended that he be retained on the promotion list. On 25 September 2002, the Office of The Judge Advocate General (OTJAG) reviewed the recommendation of the PRB, and it was found to be legally sufficient.

On 30 September 2002, the Deputy Chief of Staff, G-1, and the Assistant Secretary of the Army, Manpower and Reserve Affairs, recommended approval of the PRB action. On 10 October 2002, the Vice Chief of Staff of the Army also recommended approval.

On 14 October 2002, the Chief of Staff of the Army recommended approval of the PRB recommendation; and on 17 October 2002, the Secretary of the Army finally approved retaining the applicant on the COL promotion selection list as recommended by the PRB.

In connection with the processing of this case, an advisory opinion was requested and received from the DAIG. This opinion indicated that given the applicant provided no new evidence that would warrant changing the
7 December 2001 decision to substantiate the allegation in question, the DAIG would not change its findings in this matter. The opinion further indicated that the case was previously reviewed by the DAIG in April 2002, based on a request for an amendment submitted by the applicant, and that the Deputy, DAIG responded to this request.

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The applicant was provided a copy of the DAIG advisory opinion and responded on 18 November 2002. He stated that the response the DAIG provided the Board was the same one he received on 25 April 2002, which indicated that he had failed to provide supplementary information that would warrant changing the DAIG’s decision to substantiate the allegation. He claims this response from the DAIG illustrates the unfairness of the process and the adverse impact that it has had on him. He further states that the important point is that the DAIG substantiated an allegation that had previously been unsubstantiated by an investigation without providing any rationale or citing any new facts to serve as a basis for their decision. He also comments that the intent of the letter of concern he received from the CG NTC was to resolve this issue at the local level. Instead, this letter resulted in the DAIG reopening his case two years after the fact, which came as a shock to the NTC CG who issued the original letter. He concludes that although subsequent to his submitting his application, the Secretary of the Army retained him on the promotion selection list at the recommendation of the PRB, the results of this process are now filed in the restricted portion (R-Fiche) of his Official Military Personnel File (OMPF). He claims that this adds a negative mark in his record, and he respectfully requests that the DAIG’s substantiated finding be reversed based on law, policy, and fairness . Finally, he asks that all the information on this entire matter be removed from his OMPF R-Fiche.

AR 20-1 (Inspector General Activities and Procedures) prescribes policy and mandated procedures concerning the mission and duties for The Inspector General (TIG) of the Army. Chapter 3 contains guidance on IG records and paragraph 3-8 contains the policy and procedure for the amendment of IG records. It states, in pertinent part, that all requests for amendment of IG records concerning matters of opinion, judgment, or conclusion will be forwarded to the Records Release Office for referral to the appropriate Division within DAIG for review prior to action by TIG. It further states that requests for amendments concerning opinion, judgment, or conclusion will only be granted upon a showing of fraud, mistake of law, mathematical miscalculation, or newly discovered evidence.

Army Regulation 600-20 (Army Command Policy) prescribes the policies and responsibilities of command, which includes military discipline and conduct; and the Army Equal Opportunity Program. Chapter 4 contains guidance on military discipline and conduct, and paragraph 4-14 contains guidance relationships between soldiers of different ranks. It states, in pertinent part, that relationships are prohibited if they compromise or appear to compromise the integrity of supervisory authority or the chain of command or cause actual or perceived partiality or unfairness.

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DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The Board notes the applicant’s request that the substantiated finding of the DAIG be changed to an unsubstantiated finding. However, it finds insufficient evidence to support this request. The evidence of record confirms that the conclusions of an AR 15-6 investigation were that there was a widely held belief that the applicant displayed favoritism toward a subordinate officer and her company, which was in violation of Army Regulation 600-20.

2. The AR 15-6 investigation was found to be legally sufficient by the Fort Irwin SJA, and it was approved by the CG Fort Irwin in accordance with applicable regulations. Therefore, the Board is satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout this process.

3. The record further shows that based on the findings of this approved AR 15-6 investigation, the DAIG substantiated the allegation that the applicant had improperly created a perception of favoritism toward a subordinate officer and company, in violation of Army Regulation 600-20, Army Command Policy. This decision was reaffirmed by the DAIG subsequent to a review that was conducted based on an amendment request from the applicant. The Board finds no evidence that would suggest that this substantiated allegation finding by the DAIG was or is contrary to law or regulation.

4. The Board carefully reviewed all the supporting evidence submitted by the applicant, to include all the supporting statements he provided, particularly the statements of the CG NTC. While this evidence clearly establishes that there was insufficient evidence to find that he had an improper relationship with the subordinate officer in question and that it was the intent of local officials to handle the situation within the command, these factors are not a sufficient basis to grant the requested relief.

5. Given the facts and circumstances presented by the applicant, the Board fully understands he has arrived at conclusions that are contrary to the results of the AR 15-6 investigation and the DAIG findings based on his interpretation and view of the events and circumstances. However, the DAIG finding was based on their determination that a preponderance of the evidence indicated that the applicant improperly created a perception of favoritism toward a subordinate officer and company, in violation of Army Regulation 600-20, Army Command Policy; and the Board finds that neither the evidence of record nor the independent evidence provided by the applicant is sufficiently compelling to support a decision to reverse the DAIG’s substantiated allegation finding.

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6. The record reveals no propriety errors in the process that lead to the substantiated DAIG finding. Further, since the applicant was retained on the COL promotion list subsequent to the PRB process, the applicant has suffered no injustice based on the DAIG finding. Therefore, the Board is compelled to find that the requested relief is not warranted in this case.

7. 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 this requirement.

8. 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

__WTM__ __CJP _ __YM __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002073837
SUFFIX
RECON
DATE BOARDED	2003/01/30
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 330	134.0200
2.
3.
4.
5.
6.