RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2007
      DOCKET NUMBER:  AR20070008429


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. John G. Heck                  |     |Member               |

      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'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, through a court remand, reconsideration of his
request to promote him to the rank of brigadier general (BG); to remove a
letter of concern from his Official Military Personnel File, and to show he
retired in the rank of BG with all due back pay and allowances or, in the
alternative, that he be reinstated in the Florida Army National Guard
(FLANG) in the rank of BG.

2.  The U. S. District Court for the District of Columbia, in an Amended
Order, noted the applicant had filed nine counts of legal claims alleging,
in effect, that the Army improperly withheld his promotion to BG.  The
Court awarded summary judgment to the Army on Counts IV, V, VI, VII, and IX
of his Complaint.  The Court denied the applicant’s cross-motion for
summary judgment with respect to Counts I through VII and IX.

3.  The Court dismissed the Army’s motion to dismiss Count VIII of the
Complaint without prejudice pending review of the allegations asserted in
Count VIII by the Secretary of the Army (i.e., the Army Board for
Correction of Military Records (ABCMR)).

4.  The Court noted Count VIII of the Complaint alleged that the
applicant’s right to due process was violated because “he was never
informed by the DAIG (Department of the Army Inspector General) orally or
in writing, of the specifics of the allegations against him at any time
during the investigation.” The applicant contended that when he first
learned of the allegations against him on 14 March 2001, it was in a
“cursory manner.”  The applicant contended that, although he was
interviewed and questioned thereafter in great detail on two occasions
during the investigation, “[a]t no time during the two interviews did the
DAIG apprise [him] of the specific allegations that formed the basis of the
allegations against him.”

5.  The Court noted there was no question that the applicant was advised of
the charges against him.  However, the applicant maintained that the notice
he received did not provide any details of the particular actions forming
the bases of the allegations.  Specifically, he acknowledged that on 14
March 2001, during an interview conducted by an investigator, he was
informed that he was ”suspected of the following allegations which [they]
want[ed] to question [him] about:  That [he] improperly relieved an
officer; that [he] improperly processed Officer Evaluation Reports; and,
that [he] reprised against an Officer for making a protected
communication.”

6.  The Court noted the applicant was again informed, on 21 May 2001,
during the course of the investigation “of the allegations against him in
the same manner as he [was] during the March 14, 2001 interview.”
Nonetheless, the applicant insisted that “[t]he DAIG did not provide any
details of the particular actions forming the bases of the allegations
against [him].”

7.  The Court noted that, according to the applicant, a 78-page typewritten
report was produced from the March interview and an additional 91-page
typewritten report was produced as a result of the May interview.  Yet the
Army did not include those reports in the administrative record, nor did
the [ABCMR] address the applicant’s inadequate notice argument.  Thus, it
was difficult for the Court to discern whether the applicant was adequately
advised of the allegations against him.

8.  The Court ruled that, because it appeared the applicant raised his
inadequacy notice argument with the ABCMR, and the argument was not
frivolous on its face, the ABCMR’s failure to address the argument was
arbitrary.  The Court remanded the case to the Secretary of the Army to
address this argument.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
ABCMR in Docket Number AR2004105941 on 11 August 2005.

2.  After having had prior commissioned service in the Active Army and in
the U. S. Army Reserve (USAR), the applicant accepted an appointment as a
major in the FLARNG on 31 October 1987.  He was promoted to colonel (COL),
O-6 on 6 March 1996.

3.  In March 1999, the applicant was selected by The Adjutant General (TAG)
of the Florida National Guard (FNG) to assume command of an FNG Major
Command and to serve simultaneously as the Deputy Commanding General (DCG)
of the 32d Army Air and Missile Defense Command (AAMDC), an active duty
Army Headquarters.  On 27 July 2000, his selection for promotion to the
rank of BG was announced by the Secretary of Defense and was submitted by
the President to the Senate for confirmation on 13 September 2000.

4.  On 28 September 2000, the DAIG received a memorandum from the IG,
FLARNG referring a Title 10, U. S. Code, section 1034 complaint (Military
Whistleblower Protection) in which the applicant was accused of taking
reprisal actions against a subordinate for making protected disclosures to
his chain of command regarding criminal activities.

5.  On 3 October 2000, the applicant was notified telephonically by the FNG
TAG that he was being removed from the general officer promotion list at
the request of the DAIG based on a complaint having been filed against him.

6.  On 6 October 2000, the applicant was notified telephonically by the
Deputy DAIG that a reprisal complaint had been filed against him only hours
before his promotion was to be confirmed and that, based on the complaint,
his name was withheld by the Army from the list of officers whose
promotions were confirmed by the Senate in October 2000.

7.  On 16 January 2001, the FNG TAG again contacted the applicant and
informed him that the allegation of reprisal against the complainant had
been unsubstantiated.  However, other issues had arisen out of the
investigation that required the authority of the Vice Chief of Staff of the
Army (VCSA) to investigate further.  On 31 January 2001, the VCSA directed
that the DAIG investigate alleged improprieties by senior officials
assigned to the 32d AAMDC, FLARNG.

8.  On 14 March 2001, the applicant was interviewed by Lieutenant Colonel
(LTC) T___ and COL S___ of the DAIG.  “Q” are questions from LTC T___ or
COL S___; “A” are answers by the applicant to those questions.  (The below
quotations from two DAIG interviews with the applicant are taken verbatim
from the typewritten reports of the interviews with spelling, grammatical,
and punctuation errors intact.)  On page 1 of the 78-page typewritten
report of this interview, LTC T___ informed the applicant:

      “You’re advised that you are suspected of the following allegations
      which we want to question you about:  That you improperly relieved an
      Officer; that you improperly processed Officer Evaluation Reports; and
      that you reprised against an Officer for making a protected
      communication.”

      (page 9)  Q.  “And 5 June of ’99 when you assumed the Commander’s
      position, uh, did the rating chain stay the same or did it change?”

      (page 9 and 10)  A.  “Eh, my best recollection is it changed.  Eh, I
      frankly did not agree with my predecessor General N___. Eh, he had me
      [as the DCG] rating Battalion Commanders – uh, and senior rate the
      Battery Commanders.  I honestly felt like that Commanders should rate
      the Battalion Commanders, not the Deputy Commander.”

      (page 10)  Q.  Commander-to Commander relationship?”  A.  “…when I
      assumed command I felt like it was appropriate for me to continue to
      rate – not to continue, to rate the Battalion Commanders as their
      Commander.  Eh, and I took that responsibility away from the Deputy
      position.  However, we did keep the senior rating of the Battery
      Commanders with the Deputy position just to keep some of the workload
      off of me.”

      (page 25)  Q.  “So on 5 June when you assumed command, uh, anybody
      that you would have rated or senior rated at that time as the Deputy
      that would have changed with respect to the Battery Commanders.  Is
      that correct?”  A.  “That’s correct.”  Q.  Okay.  Can you
      explain…Annual Evaluation Report for Captain W___.  Eh, it starts 1
      October of 1998 and ends 30 September of ’99.”  A.  “Uh-huh.”

      (page 26)  Q.  “The regulation for senior rater requires that the
      senior rater be in the duty position 60 days.  This appears to be over
      90 days.  Can you tell me why you would have elected or would have
      senior rated instead of Colonel T___ on this report?”  A. “…in October
      of 2000 is when I received that OER to complete… that will produce a
      substantial confusion….”  Q.  “For the record this one is dated—uh, by
      the rater on              1 October ’99 and you finished it according
      to the dates here your portion as the senior rater 1 November of ’99…I
      understand what you just indicated.”  A.  “Yes.”  Q.  “So this report
      was not prepared until a year, over a year after it was actually
      due?’’  A.  “That’s correct.”


      (page 27)  Q.  “And from what we can see [you] should have ceased
      being the senior rater back in June of ’99, uh, realize the Annual was
      through 30 September but it was for whatever reason not processed for
      another year.  How did – I still don’t understand and I am a little
      confused as to how we didn’t get the senior rater right on this.”  A.
      “Well, I’m not sure the senior rater is not right…So if I receive an
      OER a year later and I was appropriately designated as the senior
      rater----


      (page 28)  Q.  “…Then all you have to be is 60-days in the position.
      Well, if we take June, 5 June, and go forward         60 days, we’re
      into August, the ending date on this one was 30 September.”  A.
      “Right.”  Q.  “Well, after--in other words, it was well over 90 days
      yet you rate.  So the—for Colonel T___ he met the senior rater
      requirements under the Reg.  And I’m just trying to understand----“
      A. “Right.”  Q.  “Then why you would have senior rated.  And
      especially now based on what you’ve indicated.  That it wasn’t
      prepared until much later.”

      (page 29)  Q.  “As you explained, you currently are not in the rating
      chain as the senior rater for the Battery Commanders?” A.  “That’s
      correct.”  Q.  “So based on the 5 June, that wouldn’t apply.  It was
      Colonel T___ who met the requirement to senior rate….”

      (page 29)  Q.  “You’re stating that the Regulation says that because
      you were in command for 90-days you had [an] obligation to write that
      report.  That’s what you stated, am I correct?”  A.  “…not in command,
      but because I was the senior rater for more than 90 days, I was
      required to do that under the FNG Regulations. “

      (page 39-40)  Q.  “Who was present for that meeting?”  A.  “Let me
      explain the context of the meeting.  It was somewhat consistent with
      the recommendations given to me by my Staff. Eh, as previously…
      stated…I was troubled by the apparent misconduct of Officers under my
      command.  Eh, I called Colonel B___ and asked if he could come to my
      office…I told him I had the 15-6, that I reviewed it and there was
      some serious findings in the 15-6.  I gave him the copy of the full 15-
      6…and told him to go read the 15-6, study it, read it again, go to
      lunch, come back and read it again, and come to me with his
      recommendations as to what he thinks should be done.

      (page 43)  Q.  “…What did he present to you with his views on the 15-
      6 since they occurred in his Battalion?”  A.  “…when he came back
      in…He probably had three or four hours--…to read and digest and
      consider the 15-6…that he recommended that Major H___ his Executive
      Officer get a Letter of Reprimand, Lieutenant D___ be relieved,
      transferred and get an Article 15…He would like to relieve Captain
      W___ of command before the February drill and refer him to for a
      Courts-Martial…Under no circumstances did I direct those actions.”

      (page 44)  Q.  “What I’m trying to get at, was it reasonable for him
      to read that whole report in the time frame that you gave him and give
      you a reasonable response or did you in fact have possibly an idea as
      to what you expected him to say?”  A.  “I didn’t have any idea what I
      expected him to say.  Eh, I had an idea what I would like him to say,
      but I did not have any expectations of what he would say…There was no
      requirement that action be taken that day.  I mean his decision to
      remove them before the February drill was his decision.  I—I—uh, I did
      not—I did my best not to influence that…I trust my Commanders.  And I
      expect them to do their job.”
      (page 46)  Q.  “Earlier when we talked about Staff Sergeant S___ you
      indicated I believe that Staff Sergeant S___ provided a rebuttal to
      the 15-6 and I believe you indicated it was five days as I recall late
      to General N___, but it was still considered.”  A.  “It actually
      wasn’t addressed to General N___ it was addressed to me because that
      time frame is when we changed command.”  Q.  “Okay.  And you reviewed
      it?”  A.  “Right.”  Q.  “And took appropriate action or recommended
      appropriate action at that point, correct?”  A.  “Well, when I got the
      rebuttal what I did was—uh, appoint Major B___ to investigate the
      issues that were raised by Sergeant S___.”

      (page 48-49)  Q.  “If the 15-6 or any other issue was used as the
      basis for the relief action, we see no evidence that Captain W___
      prior to the action as occurred with Staff Sergeant S___ was given the
      opportunity to rebut the proposed action.  Is that correct or was
      there to your knowledge the opportunity in those 12 days between your
      meeting when Lieutenant Colonel B___ said this is what I am going to
      do, and it actually was executed.  Do you have any knowledge of him
      being given the opportunity to rebut the relief which I believe is a
      pretty serious matter for a Commander to take.” A.  “Uh, I am not
      aware of what actions were or were not taken…after my meeting with
      Colonel B___, I had no reason to believe that he would not follow the
      regulations.  I did not check to see what steps he had taken and to
      the best of my knowledge no formal actions ever came across my desk
      through me for the actions he took….”

      (page 50)  Q.  “Typically, yes, so based on…Lieutenant Colonel B___’s
      comment to you here’s what I am going to do, I am going to relieve him
      and we’re gonna do it before the February drill which would occur in
      the first week or so of February…would you have thought that that
      perhaps was not enough time for Captain W___ to respond and discuss
      that point with Lieutenant Colonel B___?”  A.  “It didn’t cross my
      mind.  Eh, the—I’m much more knowledgeable in the procedural
      requirements today than I was on January the 14th of 2000….”

      (page 52)  Q.  ”…The AR 15-6 was it a informal or formal?”  A.  “Uh,
      informal.”  Q.  “And Major – or Captain W___ was not a respondent in
      that matter?” A.  “That is correct.”

      (page 52-53)  Q.  “Is that correct?  It goes on to say that, “When
      adverse administrative action is contemplated against an individual…”
      and I think we’ve talked through that piece and we’ve agreed that the
      15-6 was the basis to contemplate relief action minimally…”Based upon
      information obtained as a result of an investigation or board
      conducted pursuant to the regulation, the appropriate Military
      authority must observe the following minimum safeguards before taking
      final action against the individual.  (a) Notify the person in writing
      of the proposed adverse action…(b) Give the person a reasonable
      opportunity to reply in writing and submit relevant rebuttal material
      and (c) review and evaluate the person’s response.”  If Lieutenant
      Colonel B___ executed the relief, who in your view should have
      reviewed the action to make sure that it was consistent with the
      regulation?  What I just read.”  A.  “He should have reviewed the
      action?”  Q.  “Lieutenant Colonel B___ being a Battalion Commander so
      I would assume somebody in the chain above him?”

      (page 60)  Q.  “…AR 600-20 says…final action to relieve an Officer
      from any Command position—and Captain W___ I believe was certainly in
      a Command position -- will not be taken until after written approval
      by the first General Officer to include one frocked to the grade of
      Brigadier General in the Chain of Command of the Officer being
      relieved.  Can you explain whether that happened or why it wouldn’t
      have happened if that wasn’t the case?”  A”…I don’t think it was very
      timely done…So while I think Colonel B___ intended to relieve him, the
      regulation clearly states that--uh, until those steps you have just
      mentioned including the procedural safeguards are taken, even if those
      were purported to be a relief action, it would only be considered as a
      temporary suspension from assigned duties even though it was intended
      to be a relief.”


      (page 60)  Q.  “So are you telling me this was then a temporary
      suspension?”  A.  “I’m not an expert in these regulations…but here was
      eventually a GO approval of the actions that were taken.”  Q.  “And
      when was that accomplished?”  A.  “That was accomplished on the 4th of
      December 2000.”


      (page 61)  Q.  “Why did it take so long almost 11 months after the
      relief for that to go up?”  A.  “…the person purporting to take the
      action would be the initiator of that action to perform that.  That
      action apparently was taken by Colonel B___.  It did not come through
      my Headquarters.  I do not track the numerous personnel actions that
      are taking place through out my Command.”

      (page 61-62)  Q.  “When did you first learn of the IG Investigation?
      And not necessarily the DAIG?”  A.  “October the 6th, 2000.”  Q.  “Did
      that memorandum have anything to do with the IG Investigation?”  A.
      “Not to my knowledge.  You need to understand that I received a phone
      call from General H___ on October the 6th which was – well, actually
      when they said General H___ was on the phone I expected him to be
      calling congratulating me on being confirmed by the Senate…instead he
      called to tell me, uh, that I had been withdrawn from consideration
      because of the complaint that was filed against me…I was not told who
      filed the complaint or what the basis of the complaint was.  I had no
      knowledge of that.  So to answer your question, no.”


      (page 71)  Q.  “Do you believe…the timing of your 14 January meeting
      with Lieutenant Colonel B___ and the relief was done on the 26th of
      January and based on what you understand now, do you believe that
      Captain W___ was given due process?”  Q.  “If he was not given the
      opportunity--uh, to rebut and the other procedural safeguards, then
      yes I believe he was not proper--it was not properly handled.”  Q.
      “If he wasn’t given the opportunity to rebut those actions, would you
      believe that based on what you know now that this may have been an
      improper relief?”  A.  “Eh, I would believe that procedurally it would
      be an improper relief…”

9.  On 21 May 2001, the applicant was interviewed by COL S___ (the same COL
S___ as in the 14 March 2001 interview), LTC W___, and Major W___ of the
DAIG.  On page 1 of the 91-page typewritten report of this interview, LTC
W___ informed the applicant:

      “During the previous interview, you were advised that you were
      suspected of failure to ensure that a subordinate commander was
      properly relieved from a command position, improperly prepared and
      processed an officer efficiency report; and reprised against a soldier
      for making protected communications.”

10.  The applicant indicated that he had not been apprised in the manner
LTC W___ had just read.  On page 3 he indicated that he was apprised in a
general nature of the allegations but not apprised of any definitive
allegations [at the time of the March 2001 interview].

      (page 3)  Q.  “In your first interview, we talked about those
      specifics?”  A.  “Okay.”

      (page 3) Q.  “…we’re going to review the chronology of the events
      that took place, review personnel actions based on those events and
      then discuss the aspects of DOD 7050.6, the Whistleblower Reprisal
      Standard and tie everything together…”

11.  The first 30 pages or so and much of the rest of the 21 May 2001
interview dealt primarily with an earlier 15-6 investigation of allegations
against Staff Sergeant S___ and findings of misconduct on Major H___.

      (page 36)  Q.  “Sir, specific question--did Lieutenant Colonel B___
      say to you he wanted Captain W___ to be reassigned during that 14---“
      A.  “Did he say he wanted him reassigned?  Uh—you mean—uh, well, he
      would have to be reassigned---“  Q.  “Not connected to relief?  Let me
      qualify that.  Did he said he wanted him to be reassigned, no mention
      of relief?”  A.  “I have no recollection of that….”

      (page 54)  Q.  “There’s some information that at some point in time,
      Colonel T___ informed you or the rest of the staff that Captain W___
      and Major H___ had a responsibility to report losses or suspected
      criminality by S___, and that that was a responsibility they had under
      600-20.  What do you recall about Colonel T___’s advice on that
      point?”  A.  “I don’t recall anything about it.”  Q.  “Did anybody at
      any point in time tell you that soldiers—uh, officers have
      responsibilities to report losses like lost NVGs or alleged
      criminality by subordinates?”  A.  “…I don’t recall that conversation.
       If somebody had stated that, I mean I would say that’s sort of a, you
      know, a blinding flash of the obvious.”  Q.  “Did anybody, Colonel
      D___ or the IG, ever advise you that it’s wrong to take corrective
      action or punish somebody for reporting fraud, waste, abuse, losses,
      etcetera?”  A.  “No.”  Q.  “Do you think that it’s wrong for punish
      people for reporting those things?”  A.  “Yes.”  Q.  “Okay…do you
      think that’s what you did right there, sir---“  A. “No.  Q. “--with
      that 6 June letter of reprimand?”  A.  “I do not.”

      (page 62)  Q.  “But the thing that’s the real concern about that
      relief action on W___, besides the procedural niceties is that at the
      time he’s relieved on 26 January, he’s never been given any idea why
      he’s about to be relieved, any comments about how to correct his
      behavior, any second chance to improve.  He got just yanked.  How do
      you respond to that?  A.  “…You’re assuming that I was involved in the
      process of relieving Captain W___.  I was not involved in the process
      of relieving Captain W___.”

      (page 65)  Q.  “…And then you have Captain W___ relief for cause.
      You afford Sergeant S___ or take in consideration a rebuttal, but
      there’s no rebuttal for Captain W___.  And I’m just trying to
      understand why is there not consistent treatment of a very significant
      adverse personnel action?”  A. “Colonel B___ is the officer in the
      chain of command who afforded Sergeant S___ the rebuttal opportunity
      pursuant to 15-6….”  Q.  “Yes, Sir.”  A.  “…Why would I do something
      that Colonel B___ should do…You are assuming that I consciously said,
      “Let’s don’t give Captain W___ the opportunity to rebut these
      charges.”  That is in fact Not true…I don’t keep track of what Colonel
      B___ is supposed to do as battalion commander, not everything.  I
      certainly want to know what’s going on, but that’s not one of the
      things high on my list…Maybe my JAG officer should follow up on that,
      but I got plenty of things on my plate not to worry about whether
      somebody’s taking a step…I’m not diminishing the importance of that,
      but that wasn’t my job to provide that notice to Captain W___.  It was
      Colonel B___’s job.”

12.  On 29 June 2001, the DAIG Report of Investigation (ROI) concluded that
the applicant had failed to ensure that a subordinate commander was
properly relieved from a command position, that he had improperly prepared
and processed an annual OER on the complainant, and that he had reprised
against officers for making protected communications.  The VCSA approved
the DAIG ROI on 29 June 2001 as well.

13.  On 31 July 2001, the applicant was transferred to the USAR Control
Group (Retired) due to maximum authorized years of service for a COL,    O-
6.

14.  Army Regulation 623-105 (Officer Evaluation Reporting System), the
version in effect at the time, dated 1 October 1997, applied to officer
personnel in the Active Army, the Army National Guard of the United States,
and the USAR.  In pertinent part, it stated that, to evaluate the rated
officer, the senior rater must normally have served in that capacity for a
minimum of 60 calendar days.  It also stated that when the senior rater had
not been in the position the minimum number of days necessary to render a
report, he or she would enter the following statement in part VIIc:  “I am
unable to evaluate the rated officer because I have not been (his or her)
senior rater for the required number of days.”  These senior rater
guidelines have been in effect at least since the version of Army
Regulation 623-105 dated June 1979.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended in his Court action, in part, that his right to
due process was violated because “he was never informed by the DAIG orally
or in writing, of the specifics of the allegations against him at any time
during the investigation,” that when he first learned of the allegations
against him on 14 March 2001 it was in a “cursory” manner,” and that “[a]t
no time during the two interviews did the DAIG apprise [him] of the
specific allegations that formed the basis of the allegations against him.”

2.  In their 14 March 2001 interview, the DAIG investigators informed the
applicant, “You’re advised that you are suspected of the following
allegations which we want to question you about:  That you improperly
relieved an Officer; that you improperly processed Officer Evaluation
Reports; and that you reprised against an Officer for making a protected
communication.”

3.  In their 21 May 2001 interview, the DAIG investigators informed the
applicant, “During the previous interview, you were advised that you were
suspected of failure to ensure that a subordinate commander was properly
relieved from a command position, improperly prepared and processed an
officer efficiency report; and reprised against a soldier for making
protected communications.”

4.  It is acknowledged that the 14 March 2001 advisory was not as specific
as the 21 May 2001 advisory insofar as two of the allegations were
concerned (“improperly relieved an officer” versus “failure to ensure that
a subordinate commander was properly relieved from a command position” and
“improperly processed Officer Evaluation Reports” versus “improperly
prepared and processed an officer efficiency report”).

5.  Nevertheless, it is difficult to believe that based on the substance of
the interviews, particularly the 14 March 2001 interview, that the
applicant was not aware that the first allegation referred to the relief of
Captain W___ from his battery command (pages 39, 43, 44, 46, 48, 49, 50,
52, 53, 60, 61, and 71 of the 14 March 2001 interview and pages 36, 62, and
65 of the 21 May 2001 interview) and the second allegation referred to the
applicant acting as the senior rater on Captain W___’s 30 September 1999
annual Officer Evaluation Report (pages 9, 10, 25, 26, 27, 28, and 29 of
the 14 March 2001 interview).

6.  It is acknowledged that the specifics of the allegation of reprisal do
not appear to be as unmistakably identified during the two DAIG interviews
as the other two allegations.  However, it appears the allegation of
reprisal was also addressed in a prior IG investigation (i.e., on 16
January 2001, the FNG TAG contacted the applicant and informed him that the
allegation of reprisal against the complainant had been unsubstantiated).
Therefore, the fact the DAIG brought up the issue of reprisal should not
have been a surprise to the applicant.

7.  The applicant’s right to due process was not violated.  Based upon the
content of the two DAIG interviews, it appears the “cursory” manner in
which he was informed of the allegations during the introduction to the two
interviews was clearly expounded upon during the course of the interviews,
and he was given adequate opportunity to respond to the specific
allegations.

8.  It appears that based upon the applicant’s responses to questions
concerning the allegations (e.g., (page 29 of the 14 March 2001 interview)
when he admitted to acting as a senior rater contrary to a regulatory
requirement that had been in effect for at least 20 years or (page 65 of
the 21 May 2001 interview) when he stated keeping track of what one of his
battalion commanders does, especially in regards to relieving a subordinate
commander, was not one of the things high on his list), the Vice Chief of
Staff of the Army made a reasonable decision to approve the DAIG report.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __jlp___  __jgh___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of the ABCMR
set forth in Docket Number AR2004105941 dated 11 August 2005.




                                  __Linda D. Simmons__
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070008429                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070726                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]