IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100000920 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his military records be expunged of any reference to a Letter of Admonishment.  He also requests complete redaction of his name from the U.S. Army Inspector General (IG) Agency Report of Investigation (ROI) (Case 00-019).

2.  The applicant states:

* It may be difficult to expunge the Memorandum of Admonishment from his records because the Corps of Engineer's web page has declared this punishment for almost a decade
* The ROI should have been redacted before it became a public document
* The Memorandum of Admonishment was given contrary to Army Regulation 20-1 (IG Activities and Procedures)
* Since receipt of the 12 December 2000 Memorandum of Admonishment from the Vice Chief of Staff of the Army he began diligently working through proper channels to resolve this issue
* His efforts involved attempts to make direct contact with the Vice Chief of Staff of the Army and the Chief of Staff of the Army as well as contacts through his former chain of command
* After not being able to resolve the situation over a period of several years and after being informed he did not have any right to a review by this Board he was forced to file a lawsuit in the U.S. District Court for the Middle District of Florida (applicant's name v. United States Army)


* After two years of litigation in July 2007 in the U.S. Army's Response in opposition to Plaintiff's Motion for Reconsideration two, staff members from the Army Board for Correction of Military Records (ABCMR) in sworn affidavits/declarations testified he could still file with the ABCMR
* He believes because of these declarations the federal judge hearing his case understood that filing with the ABCMR was still a viable option and so, on 10 December 2007, the court dismissed his action pending a review of the ABCMR
* As he was preparing the necessary materials to file with the ABCMR he was stricken with a brain tumor diagnosed on 26 March 2009 as primary brain cancer and has been going through the radiation and chemotherapy treatments since then which impeded his progress

3.  The applicant provides 18 enclosures outlined on pages 1 and 2 of his statement.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant entered active duty on 5 June 1974 and served as a combat engineer officer.  He was promoted to colonel on 1 July 1996.  From 9 June 1997 through 9 July 2000, the applicant served as the Commander, U.S. Army Corps of Engineers Rock Island District, Rock Island, IL.

3.  Records show in February 2000 the U.S. Office of Special Counsel (OSC) transmitted to the Secretary of Defense, for his investigation, whistleblower allegations that officials at the U.S. Army Corps of Engineer (Corps), St. Louis District, MO, engaged in violations of law, rule, or regulation and a gross waste of taxpayers' funds.  The OSC requested the Secretary of Defense investigate the allegations and report back to OSC the Department of Defense's findings, including the corrective actions it intends to take.


4.  On 31 August 2000, the applicant retired in the rank of colonel.

5.  The applicant provided a copy of the 166-page U.S. Army IG Agency ROI (Case 0x-xx9), Executive Summary.  This report indicates the investigation began on 22 March 2000 and it was completed on 14 August 2000 after which a legal review was conducted.  The ROI overview states:

   a.  This is a ROI concerning a feasibility study being conducted by the U.S. Army Corps of Engineers.  The purpose of the feasibility study was to address the most efficient means of relieving congestion on the Upper Mississippi River and the Illinois Waterway.  In the absence of exceptions granted at the Army Secretariat level, the study was required to be conducted using the processes and standards of the Economic and Environmental Principles for Water and Related Land Resources Implementation Studies and the Economic and Environmental Guidelines for Water and Related Land Resources Implementation Studies.  A Corps employee alleged that Corps officials manipulated the study to show that large-scale construction was the most efficient means to relieve the congestion.

   b.  The investigation revealed the feasibility study had not yet produced a draft report.  For a large portion of the past few years, the Corps had been mired in confusion generated by the magnitude of the study, new corporate visions, and a new computer model.  The evidence also indicated the economic analysis prepared for the draft report was manipulated.  The District Engineer directed a specific value for a key parameter when he knew it was mathematically flawed, not empirically based, and contrary to the recommendations of Corps economists.  Evidence also revealed that the former Director for Civil Works and the Mississippi Valley Division Commander created a climate that led to the manipulation of the benefits-cost analysis.

6.  The ROI shows the substantiated allegation against the applicant was that he improperly took or directed actions that he knew, or reasonably should have known, would contribute to the production of a feasibility study failing to meet standards established in law and regulation.  Synopsis:  the applicant improperly manipulated the study results to support large-scale construction when he directed the use of a specific N-value.  Testimony revealed he directed the use of an N-value of 1.2 because he knew it resulted in a study outcome supporting large-scale construction.  He directed the N-value change even though it was contrary to the advice of his study team's economic experts, it was based on flawed mathematics, and it lacked a valid empirical foundation.


7.  The ROI recommendations were:

	a.  This report be approved and the case closed.

	b.  Refer this report to the Office of the General Counsel.

	c.  Because of the potential for bias and conflict of interest the Chief of Engineers, Auditor General, and the Assistant Secretary of the Army for Financial Management and Comptroller should consider ways to ensure future Corps studies are conducted fairly and objectively and are subjected to effective audit and internal review controls.  The Army should also consider direct funding of Corps employees or measures to mitigate the inherent conflict created by project-funded employees.

	d.  The investigation did not reveal an explanation of the Corps' advocacy responsibilities in any of the documents relating to the Corps civil works mission.  The Assistant Secretary of the Army for Civil Works and the Chief of Engineers should codify and explain the concept of the Corps as an advocate for the inland navigational system, particularly in the context of conducting impartial and objective feasibility studies at the division and district levels.

	e.  The Office of General Counsel should review Water Resource Development Act of 1999 and the Corps execution of Preliminary Engineering and Design (PED) to assess whether Corps met the stipulation in the Act prior to proceeding to the execution of PED.

8.  The IG concurred with the ROI recommendations and the Secretary of the Army approved the ROI recommendations.  The report was forwarded to the OSC for appropriate action. 

9.  A press release from the OSC, dated 4 December 2000, announced a press conference on the investigation into the whistleblower allegations that the Army Corps of Engineers manipulated economic study of the Mississippi River and Illinois Waterway project.  On 6 December 2000, the OSC transmitted the report to the White House and Congress.  This release also states the OSC is an independent federal agency.  In addition to investigating and prosecuting complaints of unlawful retaliation, the OSC provides federal employees with a secure channel for blowing the whistle on violations of law, rule, or regulation; gross mismanagement or waste of funds; an abuse of authority; or a substantial and specific danger to public health and safety.  By law, the OSC is empowered to require agencies to conduct investigations whenever the Special Counsel finds 


a substantial likelihood that a federal employee's disclosures demonstrate the existence of one of these conditions.  After the OSC reviews the agency report to assess whether it meets the requirements of the statute, it transmits the report to the President and the Congress for further action by those entities, if appropriate.  The report is also made available to the public as required by law.

10.  The applicant provided an article (titled "Army Corps Falsified Data for a Project, Study Says") from the New York Times, dated 7 December 2000, publicizing the release of the ROI results in question.  The article states, in pertinent part, senior commanders at the Army Corps of Engineers manipulated an economic analysis to justify the proposed construction of a $1 billion system of locks along the Mississippi and Illinois Rivers, according to a sharply critical report released today.  The findings of the report, by the Army's IG, raised the possibility of disciplinary action against three officers.  The applicant's name is mentioned in the article. 

11.  On 12 December 2000, the applicant received a memorandum of Admonishment for improper actions.  The letter states:

* On 28 September 2000 the Secretary of the Army approved a Department of the Army IG ROI which substantiated an allegation that while serving as the Commander, Rock Island District, Mississippi Valley Division, U.S. Army Corps of Engineers the applicant improperly took or directed actions which he knew, or reasonably should have known, would contribute to the production of a feasibility study that failed to meet standards
* As a senior leader in the U.S. Army, he was required to comply with all regulatory and legal requirements
* As a public official he was expected to demonstrate objectivity in all his official actions
* By improperly directing certain feasibility study data be altered, he directly influenced the outcome of the study pertaining to the Upper Mississippi River and Illinois Waterway
* Although he had retired from the Army, the Vice Chief of Staff expected him to reflect upon his actions in this case and recognize the damage they have caused to the public's confidence in the Army
* The reason he was not officially reprimanded for his conduct was because the Vice Chief of Staff believed the applicant's decision to change certain values in the study was based on his own methodology which he believed was more appropriate and reasonable in accounting for certain variables in the study


* Nevertheless, the Vice Chief of Staff expected him to reflect on his actions and ensure that his future conduct reflects that of a U.S. Army officer
* The Vice Chief of Staff directed the memorandum would not be filed in his personnel record

12.  A review of the applicant’s official military personnel file (OMPF) on the interactive Personnel Electronic Records Management System (iPERMS) did not reveal a copy of the Memorandum of Admonishment in question.

13.  The applicant provided a letter, dated 6 March 2001, from the Records Release Officer, Office of the IG, which states, in pertinent part, the ROI in question could be downloaded from the OSC website at www.osc.gov.

14.  The applicant provided a declaration, dated 24 July 2007, by the Senior Legal Advisor, Army Review Boards Agency for his civil lawsuit in the U.S. District Court Middle District of Florida.  The purpose of this declaration was to provide information pertaining to the statutory authority and practices of the ABCMR.

15.  The applicant also provided a declaration, dated 24 July 2007, by the Deputy Director/Chief of Operations, ABCMR for his civil lawsuit.  The purpose of this declaration was to provide information pertaining to the statutory authority and practices of the ABCMR.

16.  U.S. District Court Middle District of Florida, Opinion and Order, dated 
10 December 2007, indicates the applicant went to Federal Court to expunge the Letter of Admonishment and the Court dismissed the claim because he failed to exhaust his administrative remedies.  The Court also found that his claim that the release of the IG ROI violated the Privacy Act was barred by the statute of limitations.  

17.  The applicant provided numerous depositions which included a deposition from the IG (retired Lieutenant General) at the time in question.  In summary, he stated he was the Army IG from April 1998 to September 2002, he had one whistleblower case referred to his office by the OSC, he concurred with the IG report before it was submitted to the OSC, and this was the only time somebody (i.e., OSC) released the full ROI.  He indicated he was extremely upset when he found out the OSC had released the IG report and he complained immediately to the Office of General Counsel for the Army.  He goes on to state in his opinion the ROI should not have been posted on the internet and he cited several 


paragraphs from Army Regulation 20-1 pertaining to confidentiality.  He also confirmed that a Memorandum of Admonishment would be considered the lowest form of an adverse action and the decision to take any adverse action on any ROI conducted by his office rests with the Secretary of the Army, Vice Chief of Staff of the Army, or the Under Secretary of the Army.  He claims his office was not required to give the Secretary of Defense written authorization to release the ROI because the ROI was requested from the OSC and had he known the ROI would be placed in a public record the report may have been written differently (i.e., individuals would be referred to as witness A, witness B, and not by name).
 
18.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, Military Personnel Records Jacket, Career Management Individual File, and the Army Personnel Qualification Records.  Table 2-1 of the regulation also provides, in pertinent part, that administrative letters of admonition will be filed in the performance section.

19.  Paragraph 3-3 (Use of IG records for adverse actions) of Army Regulation 20-1 states IG records will not be used as the basis for adverse action against individuals, military or civilian, by directing authorities of commanders except when specifically authorized by the Secretary of the Army, the Under Secretary of the Army, the Chief of Staff of the Army, the Vice Chief of Staff of the Army, or The Inspector General.

20.  Paragraph 8-7b (Reports of Investigation and Investigative Inquiry) of Army Regulation 20-1 states the format consists of an executive summary (when necessary) that provides the names of suspects or subjects, the authority for the investigation, the relevant background to the case, a restatement of the allegation(s) or issue(s), key evidence, and a brief discussion or synopsis of each substantiated or unsubstantiated allegation and founded or unfounded issue.

21.  Title 5, U.S. Code, section 1219 (Public Information) states the Special Counsel shall maintain and make available to the public:

* A list of noncriminal matters referred to heads of agencies under subsection (c) of section 1213; together with reports from heads of agencies under subsection (c)(1)(B) of such section relating to such matters
* A list of matters referred to heads of agencies under section 1215 (c)(2)
* A list of matters referred to heads of agencies under subsection (e) of section 1214; together with certifications from heads of agencies under such subsection
* Reports from heads of agencies under section 1213 (g)(1)

22.  Pursuant to Title 10, U.S. Code, section 1552, the ABCMR, on behalf of the Secretary of the Army, has the authority to correct the Army records of a current or former Soldier.  The Board's authority does not extend to correction of non-Army records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his military records be expunged of any reference to a Memorandum of Admonishment.  However, the Vice Chief of Staff of the Army directed the memorandum would not be filed in his personnel record (i.e., the performance section of his OMPF as required by regulation) and this Memorandum of Admonishment is not contained in his OMPF on the iPERMS.  Therefore, there is no basis for granting the applicant's request because, for purposes of the ABCMR, there is no Army record to correct.

2.  The applicant contends the Letter of Admonishment was given contrary to Army Regulation 20-1 because IG records are not to be used for the basis of an adverse action.  However, the governing regulation states IG records will not be used as the basis for adverse action against individuals, military or civilian, by directing authorities of commanders except when specifically authorized by the Secretary of the Army, the Under Secretary of the Army, the Chief of Staff of the Army, the Vice Chief of Staff of the Army, or The Inspector General.  His Letter of Admonishment was signed by the Vice Chief of Staff of the Army.  In any event, this issue is moot because, for the Army's purposes, the Memorandum of Admonishment was never filed in his records.

3.  With regard to the degree the Memorandum of Admonishment has been released to the public, the Army has no control over information released in public media.  In addition, the applicant, as noted by the U.S. District Court in a 2007 Opinion and Order, participated in disseminating information about the Memorandum of Admonishment to the media.

4.  The applicant requests a complete redaction of his name from the ROI in question.  However, the governing regulation states the format for ROIs consist of an executive summary (when necessary) that provides the names of suspects or subjects.  Therefore, there is no basis for granting the applicant's request.

5.  The applicant contends the ROI should have been redacted before it became a public document.  However, evidence of record shows the OSC (an independent federal agency) made the ROI available to the public as required by 


law.  Even if the ROI was released in error by the OSC, that provides no relief.   The Court, in the civil action filed by the applicant, dismissed any claim or course of action against the Army on the basis of an untimely filing (statute of limitations).  The Army has no control over copies of this report that may have been published by the OSC on the Web and has no ability to collect/redact those copies.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X___  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 for correction of the records of the individual concerned.



      ____________X____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100000920



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ABCMR Record of Proceedings (cont)                                         AR20100000920



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