RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 13 July 2004
         DOCKET NUMBER: AR2003090237


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

Mr. Carl W. S. Chun		Director
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Stanley Kelley		Member
Mr. Mark D. Manning		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).


The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE :

1. Counsel requests that the Department of the Army Inspector General (DAIG) Reports of Investigation (ROIs) Number 15-95 and Number 15-95A be set aside; that the memorandum of reprimand (MOR) issued on 9 January 1997 and all related adverse information be expunged from the applicant's records; that the applicant be retired in the rank of brigadier general (BG) and be paid all back pay, allowances, and other benefits to which he is entitled from 26 September 1995, the date he was placed on the promotion list or, in the alternative, that he be deemed to have been promoted by operation of law from 26 March 1997; and that he be reimbursed $31,722 in legal fees incurred as a direct result of the DAIG investigations and his removal from the BG promotion list.

2. Counsel states that the applicant was selected for promotion to BG on 26 September 1995, not surprising given his extraordinary history of exemplary service to the Army and the Nation. His joy and pride, however, were short lived. Just days after his selection for promotion the DAIG received a U. S. Army Criminal Investigation Command (USACIDC) report regarding alleged misconduct by the applicant. On the basis of that report, on 17 October 1995 the DAIG initiated an investigation into complaints involving him that stemmed from alleged incidents ultimately dating back as far as 1988.

3. Counsel states that the resulting DAIG investigation was a fatally flawed inquiry whose illegality and impropriety have been thoroughly documented and confirmed by an independent investigation of the Department of Defense IG (DODIG). The DAIG investigation led to the applicant's removal from the BG promotion list and severely tarnished his otherwise flawless record. The DAIG was the sole basis for his removal from the BG promotion list. The DAIG investigating officer (IO) pre-judged the applicant and then went to extraordinary lengths to verify his initial false impressions. This was confirmed by the DODIG. The IO failed to comply with federal law and Army Regulation 20-1, the DAIG governing regulation, by [failing to] impartially and diligently pursue all available information, favorable or unfavorable, and weighing that information under the specified evidentiary standard.

4. Counsel states that the Army officials charged with carefully and objectively reviewing the DAIG investigation failed to discover, and then later refused to acknowledge, the egregious violations of the applicant's procedural rights that
characterized the investigation. The DODIG investigation unsubstantiated the majority of the allegations that had been substantiated by the unlawful DAIG investigation and which had provided the sole basis for the MOR. Of the eleven incidents included in the MOR, only three minor incidents were ultimately substantiated by the DODIG. The substantiated incidents were each of a minor nature and none constituted an infringement of the Uniform Code of Military Justice (UCMJ), Army regulations, or any applicable standard. They cannot justify the extreme action taken against the applicant.

5. Counsel states that the applicant was notified his case would be referred to a Promotion Review Board (PRB). He submitted detailed materials for the PRB's consideration; nevertheless, the Army elected to remove his name from the BG promotion list. Despite the applicant's repeated requests for a copy of the PRB report under the Freedom of Information Act, the Army failed to provide a copy of that report. To this date, he has received no information regarding the PRB proceeding. His removal from the promotion list was made effective about one month before the DAIG referred the "in-house" investigation of the applicant to the DODIG.

6. Counsel states that, despite the clarity and force of the DODIG's findings, the DAIG ordered a "reinvestigation" rather than accept the DODIG report as final. Based on the "reinvestigation," the Department of the Army Suitability Evaluation Board (DASEB) slightly modified the applicant's MOR to reflect the changes contained in the "reinvestigation." There is no indication the DASEB gave sufficient weight to the DODIG ROI or the submissions of the applicant and his attorneys.

7. Counsel states that errors were committed by the Office of The Judge Advocate General (OTJAG). The reviewing attorney correctly identified some of the blatantly obvious procedural violations committed by the DAIG IO. The reviewing attorney noted that the applicant was not questioned about several of the specific incidents and most were not covered in the referral letter sent to him for response. The reviewing attorney then erroneously concluded that notice and an opportunity to respond could be provided at a later date should the specified incidents form the basis for adverse action against the applicant. It was improper for the reviewing attorney to assume the role of advocate for the DAIG. He should have returned the ROI to the DAIG for remedial action.

8. Counsel states that the reviewing attorney made an additional unlawful error when he prepared a "draft MOR" for submission to the Vice Chief of Staff of the Army (VCSA) along with the DAIG ROI. Regulation makes it clear that such
recommendations must be left to the discretion of the directing authority. We cannot know whether the directing authority would have adopted the same course had the reviewing attorney not provided the "draft MOR."

9. Counsel states that the DAIG violated the applicant's procedural rights by failing to make timely disclosure of the DAIG ROI and other relevant information. It was not released until 12 September 1997, after repeated requests under the Freedom of Information Act, six months after the Army recommended his removal from the promotion list and a mere three weeks before his removal was approved.

10. Counsel states that, based on concerns presented to the DODIG not by the DAIG but by the applicant himself, the DODIG reviewed in detail the validity of the DAIG's investigative findings. Unsurprisingly, given the extraordinary investigative deficiencies identified in the DAIG ROI, the DODIG found the evidence sufficient to substantiate only three of the eleven incidents cited in the MOR. Each of the substantiated incidents involved conduct that occurred during off duty social events years earlier. The three incidents were: 1) the applicant engaged in a verbal altercation with a captain at a social function at the Fort Eustis, VA Officers' Club; 2) he "flipped the bird" to the Fort Eustis Chief of Staff in the presence of a subordinate officer at the Fort Eustis Officers' Club; and 3) he kissed a female captain on the forehead during a social function at a battalion commander's quarters.

11. Counsel states that the applicant freely admits that the first incident occurred. The Fort Eustis Commanding General, however, considered the incident to be of such minor importance that no action was required. He determined that the major error committed was attempting to resolve official business in a social environment. He held a brief discussion with the applicant and the captain and required the applicant to apologize to the captain, which the applicant unhesitatingly did.

12. Counsel states that the applicant freely admits that the second incident occurred, in November 1993; however, it was an act done in a completely friendly manner, in jest, and was taken as such by the only eyewitness, a captain. The other witness (the Chief of Staff) to the incident was not interviewed by the DAIG and had retired years before the investigation started. The captain, in his sworn statement, stated that he was sitting at the bar with the Chief of Staff. As they looked in the applicant's direction, he gave them a hand gesture commonly known as "shooting the bird." It was clearly done in the spirit of fun and was not noticed by anyone else. The gesture was aimed at himself and the other witness and no one else.

13. Counsel states that the applicant denies the third incident took place. The alleged recipient, a captain, stated that she believed the applicant danced with her because she was a new commander and thought he wanted to make her feel included and part of the team. As she said to the IO, she thought the applicant gave her an innocent peck on the forehead but she could have misunderstood it. She stated a lieutenant was the only officer to ever say anything to her about the party or the dance. He was very drunk at the party. In her opinion, he was an immature lieutenant who liked to gossip and talk about people. He seemed intent on making her dance with the applicant an issue. Counsel states that her sworn written statement was entirely credible. Importantly, rather than considering herself to have been a victim of misconduct, she became a staunch admirer of the applicant due to his exemplary leadership qualities and his commitment to women and ethnic minorities in the Army.

14. Counsel states that Title 10, U. S. Code, section 624(d)(4) states that the promotion status of an officer whose promotion has been lawfully delayed must be resolved within a period of 18 months from the date when the officer would otherwise have been promoted or appointed. Federal courts have construed this time provision strictly. The Army failed to resolve the applicant's promotion status within the specified 18-month time limit. He never received formal notification that his promotion was being delayed. A letter dated 24 October 1995 from the Assistant Secretary of Defense to Senator Strom Thurmond requested no further action on his promotion be taken pending completion of the DAIG investigation. On 8 October 1997, the President removed the applicant from the BG promotion list.

15. Counsel states that 37 exhibits are provided; however, they are not numbered. Provided are: 1) the DODIG ROI dated 27 August 1999; 2) a sworn statement dated 4 Feb 1997 from Mr. S___; 3) a sworn statement dated 17 September 1996 from Mr. S___; 4) a memorandum for the president of the PRB from the applicant dated 21 February 1997; 5) a memorandum for the president of the PRB from the applicant's regional defense counsel dated 21 February (partially illegible, presumably 1997); 6) an Officer Evaluation Report (OER) for the period ending 14 December 1977; 7) an OER for the period ending 28 August 1978 with attached comments from the Assistant Commandant, U. S. Army Transportation School; 8) an OER for the period ending 14 January 1991; 9) an OER for the period ending 5 December 1989; 10) an OER for the period ending 17 August 1990; 11) an OER for the period ending 19 June 1993; 12) and an OER for the period ending 13 March 1983.

16. Counsel also provides: 13) an OER for the period ending 21 July 1980; 14) an OER for the period ending 14 July 1991; 15) an OER for the period ending
1 June 1987; 16) an OER for the period ending 1 June 1985; 17) an OER for the period ending 1 June 1986; 18) an OER for the period ending 19 June 1994; 19) an OER for the period ending 31 May 2000; 20) an OER for the period ending 30 September 1999; 21) an OER for the period ending 30 September 1998; 22) an OER for the period ending 30 September 1997; 23) an OER for the period ending 22 November 1996; 24) an OER for the period ending 31 May 1996; 25) an OER for the period ending 31 May 1995; 26) an OER for the period ending 18 November 1994; 27) a Senior Service College Academic Evaluation Report (AER) for the period ending 19 June 1992; 28) an OER for the period ending 5 December 1988 with letter report input; 29) an OER for the period ending 16 December 1987 with letter report input; and 30) an Academic Transcript for the Command and General Staff Officer Course ending 1 June 1984.

17. Counsel also provides: 31) an OER for the period ending 14 June 1983; 32) an OER for the period ending 13 March 1982; 33) an OER for the period ending 1 July 1981; 34) an OER for the period ending 31 October 1979; 35) an OER for the period ending 12 July 1979; 36) an AER for the Transportation Officer Advanced Course ending 11 April 1979; 37) a memorandum from the VCSA to the DAIG dated 17 October 1995; 38) an undated and unsigned (but apparently prepared by the applicant) Chronology of Investigatory Process; 39) a letter from the applicant's civilian counsel to the VCSA dated 25 September 1996; 40) a letter dated 12 February 1996 from the DAIG to the applicant; 41) an MOR dated 15 August 1996; 42) a memorandum from defense counsel to the VCSA dated 24 September 1996, subject: MOR and Underlying Investigation; 43) a memorandum from the applicant to the VCSA dated 11 October 1996, subject: Supplemental Response to MOR; and (44) a corrected copy of the MOR dated 9 January 1997.

18. Counsel also provides: 45) a memorandum from defense counsel to the DAIG dated 16 May 1997; 46) a memorandum from defense counsel to the VCSA dated 12 September 1997; 47) a memorandum from defense counsel to the DODIG dated 21 September 1999; 48) a memorandum from defense counsel to the DAIG dated 24 January 1999; 49) a memorandum to the DASEB from defense counsel dated 22 December 2000; 50) a memorandum to the DASEB from the applicant dated 27 December 2000; 51) a memorandum to the Army Board for Correction of Military Records (ABCMR) from the applicant dated 24 August 2001; 52) a memorandum to the ABCMR from defense counsel dated 8 August 2001; 53) a letter To Whom It May Concern from Major General W___ dated 21 February 1996; 54) a memorandum to the president of the PRB from Major General W___ dated 9 February 1997; 55) a sworn statement from
Captain M___ dated 18 February 1997; 56) a letter from the Assistant Secretary of Defense to Senator Thurmond dated 24 October 1995; 57) a memorandum for the President dated 30 September 1997 and the President's approval to remove the applicant from the promotion list; and 58) a letter from the General Officer Management Office to the applicant dated 26 September 1995.

CONSIDERATION OF EVIDENCE:

1. The applicant was commissioned in the Regular Army, Transportation Corps, and entered active duty on 19 December 1971. He was promoted to colonel, O-6 on 1 September 1993. He was selected for promotion to BG, O-7 by the 1995 promotion selection board, given a sequence number of 39, and notified on or about 26 September 1995 that he had been selected. His sequence number would have made him due for promotion to BG on 1 November 1996.

2. According to the DODIG report, on 27 September 1995 the Army IG at Fort Eustis forwarded a CIDC report dated 19 September 1995 to the DAIG regarding alleged misconduct by the applicant. The CIDC report contained information obtained from witnesses who alleged the applicant was involved in the appearance of an adulterous relationship with a subordinate company commander and displayed conduct unbecoming an officer at several social gatherings.

3. The DODIG report went on to state that the DAIG investigation was initiated on 17 October 1995. On 20 November 1995, the scope of the DAIG investigation was expanded to include additional allegations against the applicant developed during initial interviews.

4. On 12 February 1996, the DAIG sent the applicant a letter affording him the opportunity to provide new evidence regarding seven allegations that had been tentatively substantiated. At that point the DAIG had concluded that the applicant was disorderly and presented the perception of being drunk while in public; verbally abused subordinates and civilians; assaulted subordinates; conducted himself in a manner which was unbecoming a commissioned officer; created a perception of favoritism towards a subordinate company commander; used a military vehicle for personal purposes; and presented the perception of improperly interfering in an accident investigation and the subsequent report of vessel accident. The DODIG found the synopsis of evidence to be general in nature and, except for the last allegation, to provide few specific instances of real or perceived misconduct. The applicant provided two volumes of documents rebutting the allegations including a separate rebuttal for each allegation; a list of 70 witnesses and contacts where they could be reached; and 81 statements from personnel of the 7th Transportation Group.

5. The DODIG report stated that, by memorandum dated 21 June 1996 (not available to the Board), an attorney in OTJAG documented his legal review of the DAIG ROI. The attorney recommended that the allegation pertaining to the perception of interfering with an accident investigation and the subsequent report of vessel accident be rewritten as unsubstantiated. On 30 July 1996, the VCSA approved the DAIG ROI (193 pages long, 13 volumes with exhibits, not available to the Board), which substantiated the first six of the seven allegations listed in the DAIG's 12 February 1996 letter.

6. On 15 August 1996, the VCSA gave the applicant an MOR which cited the six substantiated allegations (and a total of 12 incidents of misconduct). In a rebuttal dated 24 September 1996 from the applicant's counsel and one dated 11 October 1996 from the applicant, the applicant contended the MOR and the DAIG ROI contained substantive errors and that the IO conducted his IG duties improperly. He also contended that he was not given notice and an opportunity to respond to several additional allegations reflected for the first time in the MOR.
7. The DODIG report states that, in a memorandum to the VCSA dated 18 December 1996 (not available to the Board), OTJAG addressed several issues raised by the applicant and concluded by stating they considered the allegations against the IO but determined that, even if true, they did not invalidate the results of the investigation. OTJAG recommended the VCSA refer the allegations to the DAIG.

8. The DODIG report states that, by memorandum dated 9 January 1997 to the DAIG (not available to the Board), the VCSA requested that pertinent portions of the applicant's correspondence be reviewed and appropriate action taken. Subsequently, the VCSA sent the applicant a corrected copy of the MOR, dated 9 January 1997, in which, the DODIG report states, "Of the 12 incidents of misconduct cited in the original MOR, one was removed and two were modified." (It appears that two were deleted and four were modified.)

9. On 23 January 1997, the applicant was notified that he was being considered by the PRB for removal of his name from the BG promotion selection list. By separate memorandums both dated 21 February 1997, the applicant and his counsel rebutted the allegations that led to the PRB action.

10. By memorandum dated 30 September 1997, the Deputy Secretary of Defense requested the President approve the removal of the applicant from the Fiscal Year 1995 BG promotion list. The President approved the request on 8 October 1997.

11. On 7 November 1997, the DAIG requested the DODIG assume investigative responsibility for the applicant's allegations against the Army IGs concerning misconduct and inadequate investigative work by the DAIG. The DODIG noted that they concentrated their assessment on the first four allegations in the DAIG ROI, since those included most of the instances of misconduct cited by the DAIG and were, for the most part, the focus of the applicant's rebuttal.

12. The DODIG found that the DAIG's selection of standards added unnecessary complexity to their investigation and to the resulting ROI. Because the applicant was a general officer selectee, the DODIG believed it would have been appropriate for the DAIG to evaluate his overall behavior with respect to guidance contained in Army Regulation 600-100 (Army Leadership). The following standards would have been appropriate: setting and exemplifying the highest professional and ethical standards; building cohesive teams; and treating subordinates with dignity, respect, fairness, and consistency. In the DODIG's view, a broader-based examination of his behavior would have produced a more balanced appraisal of his performance as an Army leader and allowed a more accurate assessment of his fitness for service in positions of increased responsibility and trust.

13. The DODIG found that the DAIG failed to gather sufficient evidence to establish, to a preponderance standard, that the applicant's behavior violated either the UCMJ or Army regulations. The DODIG attributed the insufficiency of evidence to the DAIG's failure to interview reasonably available witnesses with first-hand knowledge of the events. The DODIG noted, as only one example, an instance where the DAIG ROI contained testimony to the effect there were six witnesses to an alleged verbal altercation between the applicant and a subordinate and the subordinate's wife. In that instance, the IO interviewed only one witness and the applicant was not questioned about the altercation. The altercation was then cited as an example of misconduct in the MOR.

14. The DODIG viewed the DAIG analysis of the limited evidence gathered as somewhat predisposed to a conclusion that was unfavorable to the applicant. They considered the conclusion that he verbally abused or assaulted subordinates particularly lacking balance. Several officers who were interviewed described incidents in which the applicant got "right up into a person's face" or, using profanity, verbally abused soldiers. However, other witnesses attributed positive characteristics to his aggressive behavior. Many of his supporters, including those who were allegedly abused, commented that, while he used profanity, he was not vulgar and did not direct profane or obscene comments toward his subordinates in a demeaning manner.

15. The DODIG found the evidence sufficient to support conclusions that the applicant acted inappropriately on just three of the eleven occasions described in the MOR, all of which occurred at off-duty social events:
         In November 1993, the applicant and a captain engaged in a verbal altercation at the Fort Eustis Officers' Club regarding an incident at a softball game that had been played several weeks earlier. The applicant testified that the captain prompted the altercation. He recalled that, while he was angry and may have used curse words toward the captain, he was polite toward the captain's wife. The commanding general determined that "the major error committed was (the applicant's) attempt to resolve official business in a social environment." The commanding general also stated in a letter of support for the applicant that the applicant, as the senior person, should have immediately terminated the discussion and directed the discussion be conducted at a more appropriate time and place.
         During social activities at the Fort Eustis Officers' Club, the applicant was observed "flipping the bird" at the installation Chief of Staff. Junior officers were present and observed his actions. He explained that his actions were in jest and were perceived as such by the Chief of Staff.
         One female captain testified that the applicant, while dancing with her at her battalion commander's house following a dining in, kissed her on the forehead. She characterized that act, which took place on her first day in command of a company, as an "innocent peck." The applicant denied the incident occurred. In a witness statement provided for the applicant, this captain later said she thought the applicant gave her an innocent peck on the forehead but she could have misunderstood it.

16. The DODIG found that the DAIG neither notified nor questioned the applicant concerning eleven of 27 cited incidents, including the second substantiated charge noted above. That failure was a matter of concern to the attorney at OTJAG who reviewed the DAIG ROI. Although the attorney raised no legal objection with respect to the lack of notification, he nonetheless cautioned that adverse action could not be taken against the applicant as a result of information the applicant had not had an opportunity to rebut. He proposed as a solution to include each incident in the adverse administration action ultimately imposed by the VCSA and included a draft memorandum that would accomplish that.

17. The DODIG did not discount the due process eventually provided the applicant [by being given the opportunity to rebut the allegations when they appeared in the MOR]. However, the DODIG determined that the DAIG's action was inconsistent with its policy of allowing a subject to provide his side of the story before the ROI is finalized and conclusions are drawn.

18. The DODIG found no indication that the DAIG considered the evidence provided by the applicant prior to reaching their conclusions regarding the allegations. Upon questioning the IO, the IO told the DODIG that he incorporated all of the applicant's statements as exhibits in the ROI for those who wanted to read through them, but he was not going to go back through and reinterview all those people again. The IO's disclaimer caused the DODIG to question whether he made a serious effort to reconcile the conflicts between sworn testimony and the affidavits provided by the applicant.

19. The DODIG recommended the Army review the corrective action taken with respect to the applicant to determine whether any modification was warranted.

20. Around December 1999, the DAIG reopened its investigation against the applicant.

21. On 31 May 2000, the applicant retired in the rank of colonel after completing 28 years, 5 months and 12 days of active Federal service.

22. On 15 June 2000, the DAIG completed an addendum to its investigation on the applicant. The new investigation concluded that five of eight allegations against the applicant were substantiated (plus the three the DODIG found to be substantiated). The DAIG concluded that, unlike the DODIG, it found that the preponderance of the evidence did establish that the applicant verbally abused subordinates as a commander and that his directing leadership style exceeded the Army norms for such a style and constituted an abusive pattern of behavior toward his subordinates which rose to the level of conduct unbecoming an officer.

23. The DAIG noted that of the 81 statements submitted by the applicant, 17 witnesses testified they were verbally abused by the applicant; 14 that they witnessed him verbally abuse subordinates, 30 that they observed him dealing with subordinates in a manner involving one or more of the following characteristics: "…intimidation…profanity in general…ranting and raving…lose his temper…and personally attacked;" and 40 indicated that although he may have exhibited some of the characteristics noted above in dealing with subordinates, they did not think that he was verbally abusive.

24. The DAIG stated that the applicant was afforded the opportunity to comment on all the allegations against him in his testimony in December 1995. He was not provided the opportunity prior to the completion of the DAIG investigation to comment on five specific incidents of misconduct. This was discussed with legal representatives and a decision was made to continue forward with the DAIG action in the matter and allow the applicant 's rebuttal to the MOR to provide him due process.

25. The DAIG stated that their IO reviewed "each and every one" of the documents the applicant provided in his response to the referral letter and considered them. He highlighted and tabbed key elements and names that he thought were relevant, that could have been different from what he found in his testimony. He then cross-walked the evidence found in those with the testimony provided by those he put under oath on tape. He thought he considered everything that was represented to him in a fair and impartial manner in arriving at his conclusions.

26. The DAIG stated that the DODIG's finding that the DAIG's selection of standards added unnecessary complexity to the investigation and the resulting ROI had no impact on the DAIG ROI. The DAIG stated that the DODIG review appeared to present an argument not that the standards used did not apply but that there were other standards which also applied.

27. The DAIG stated that a review of all the available evidence did not indicate that the DAIG failed to gather sufficient evidence to establish, to a preponderance standard, that the applicant's behavior violated either the UCMJ or Army regulations. Two reviews, one by the DAIG and one by OTJAG, ensured that a preponderance of evidence existed to support the conclusion regarding any allegation. The issue appeared to be simply a difference of opinion between the DAIG investigators and legal advisors and the DODIG.
28. The DAIG found that the substantiated allegations in the original ROI remain substantiated and requested OTJAG consider this current report in reviewing the corrective action taken against the applicant to determine whether any further modification to his MOR was warranted.

29. In the processing of this case, an advisory opinion was obtained from the DAIG. The DAIG provided the above-amended DAIG ROI pertaining to the applicant and stated that relief is not appropriate. The DAIG stated that the DODIG opinion dated 27 August 1999 pertained only to the original ROI. The DAIG informed the DODIG of the findings of their reinvestigation. The DAIG had not received any correspondence from the DODIG concerning the matter subsequent to the 17 July 2000 ROI.

30. A copy of the advisory opinion was provided to the applicant for comment or rebuttal. His counsel rebutted. Counsel stated that, like the DAIG investigation itself, the 17 July 2000 document is replete with error. The document merely confirms the applicant's previous argument that the entire DAIG investigative process was so corrupted that its findings of fact and legal conclusions are invalid. The applicant did not receive a copy of the "reinvestigation" ROI
notwithstanding his numerous requests under the Freedom of Information Act and Privacy Act for this and other documents. The DAIG memorandum completely discounts, and at points even condemns, the DODIG findings and the dozens of witness statements submitted by the applicant while simultaneously forgiving, ignoring, or brushing aside the many findings of unlawful and grossly unethical DAIG conduct documented by the DODIG. Counsel states that the DODIG is the only entity to have conducted an investigation and review of this matter that was impartial, disinterested, and thorough in its assessment of the totality of information, both favorable and unfavorable, included in the investigative file. Indeed, the DODIG spent two years scouring every document, detail, and procedure involved in the investigation. At bottom, counsel states, there can be no doubt that the DAIG's conduct in this case is driven by considerations of agency politics rather than a desire to ferret out the truth and ensure that justice is done.

31. Counsel for the applicant provided seven enclosures in support of his rebuttal: 1) 24 requests for information under the Freedom of Information Act; 2) statements from 55 different individuals (some providing multiple statements); 3) a separate rebuttal from the applicant; 4) a 7 May 1999 memorandum to the Office of General Counsel; 5) a 31 August 1999 memorandum to OTJAG; 6) a 21 September 1999 memorandum to the DAIG; and 7) an undated affidavit from Mr. Mark A___.

32. In his personal rebuttal, the applicant states that the advisory opinion presents inflammatory and unsubstantiated allegations that he was encountering for the first time and had not had an opportunity to address on prior occasions. He specifically addressed in detail three examples that focused on egregious errors which fatally undermined the accuracy and integrity of the DAIG "reinvestigation" and the 17 July 2000 memorandum. He concluded by stating that, even when he was able to force an objective and impartial investigation by the DODIG, the DAIG summarily brushed it aside or attacked it.

33. Army Regulation 20-1 (Inspector General Activities and Procedures) states that an IG investigation is a fact-finding examination by a detailed IG into allegations to provide the directing authority a sound basis for decisions and actions. An IG investigator will not discard an allegation solely because it appears frivolous, unimportant, or not relevant to the matters under investigation. An IG investigator will obtain sufficient evidence to determine that an allegation is either substantiated or unsubstantiated. Preponderance of credible evidence is the standard of proof IGs use to substantiate or not substantiate allegations. Preponderance is defined as "superiority of weight." IGs will include in the ROI a complete, objective, and impartial presentation of all pertinent evidence gathered during the investigation.

34. Army Regulation 600-8-29 (Officer Promotions), chapter 8 (Promotion Review Boards) states 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 a number of reasons to include when derogatory information is received by HQDA but not filed in the Official Military Personnel File, if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation. For cases involving promotion to or within general officer grades, the VCSA is authorized to refer cases to a PRB. Before the PRB convenes, the officer under review will be informed, by memorandum, of the reason for the action and provided a copy of any information that will be considered by the board. The officer will be afforded a reasonable opportunity to submit comments on that information to the PRB. The PRB’s recommendation is only advisory to the Secretary of the Army. In cases involving promotions to or within general officer grades, the board report will be sent through the Chief of Staff of the Army to the Secretary of the Army who will forward the report with an appropriate recommendation through the Secretary of Defense to the President. An officer who is removed from a promotion list continues to be eligible for consideration for promotion. Officers considered by a PRB will be informed of the results, in writing, through their chain of command.

35. Title 10, U. S. Code, section 624(d)(1)(B) states that, under regulations prescribed by the Secretary concerned, the appointment of an officer under this section may be delayed if an investigation is being conducted to determine whether disciplinary action of any kind should be brought against the officer. Section 624(d)(3) states that the appointment of an officer may not be delayed under this subsection unless the officer has been given written notice of the grounds for the delay. An officer whose promotion has been delayed under this subsection shall be afforded an opportunity to make a written statement to the Secretary concerned in response to the action taken. Section 624(d)(4) states that an "appointment of an officer may not be delayed under this subsection for more than six months after the date on which the officer would otherwise have been appointed unless the Secretary concerned specifies a further period of delay. An officer's appointment may not be delayed…more than 18 months after the date on which such officer would otherwise have been appointed…"

36. Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags) states that flags will be submitted when an unfavorable action or investigation is started against a soldier by military or civilian authorities. A flag prohibits several favorable personnel actions, including promotion.

DISCUSSION AND CONCLUSIONS :

1. By law an officer's appointment to the higher grade may not be delayed more than 18 months after the date on which the officer would otherwise have been appointed. The applicant was selected for promotion to BG by the 1995
promotion selection board and given a sequence number of 39. His expected promotion would have occurred on 1 November 1996. The President approved his removal from the promotion list on 8 October 1997, within the time limitation imposed by law.

2. By law an officer's appointment may not be delayed unless the officer has been given written notice of the grounds for the delay. The applicant was notified on 23 January 1997 that he was being considered by the PRB for removal of his name from the BG promotion selection list. By law an officer whose promotion has been delayed under this subsection shall be afforded an opportunity to make a written statement to the Secretary concerned in response to the action taken. By separate memorandums both dated 21 February 1997, the applicant and his counsel rebutted the allegations that led to the PRB action.

3. The applicant should have been aware, even prior to January 1997, that his promotion was being held up. He should have been flagged when the DAIG investigation started. If he was not flagged, as a commander he should have known that he should have been flagged when it started.

4. There was some difference of opinion between the DAIG and the DODIG concerning which allegations against the applicant were substantiated and which were not. Both conducted exhaustive investigations. While the DODIG's report questioned the sufficiency/adequacy of the DAIG's investigation/conclusions and recommended a review of its guidance and procedures, it did not substantiate any misconduct or improper actions on the part of the Army investigators.

5. The DAIG substantiated eleven allegations against the applicant; the DODIG substantiated three allegations against the applicant. If the Board accepts the DAIG findings, there is overwhelming evidence justifying the Secretary's decision. If the Board accepts the DODIG findings, the applicant still has failed to meet his burden of proof to show that the Secretary would have allowed his name to remain on the promotion list, since the DODIG substantiated three allegations. Thus it is not necessary for the Board to determine which IG report is more correct. In this case, sufficient evidence exists justifying the Secretary's decision, and the applicant has failed to show, by the preponderance of the evidence, otherwise.

6. The DAIG, in their addendum to the original ROI, stated that the issue appeared to be simply a difference of opinion between the DAIG investigators and legal advisors and the DODIG. In an absence of a finding by the DODIG that there was misconduct on the part of the DAIG investigator, the preponderance of the evidence leads the Board to believe there was an honest difference of opinion between the DAIG and DODIG. The burden of proof is on the applicant. There is insufficient evidence to show that the DAIG's findings were not substantiated.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__ sac ___ __ sk ____ __ mdm ___ DENY APPLICATION


The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




                  __Samuel A. Crumpler_
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090237
SUFFIX
RECON
DATE BOARDED	20040713
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON