IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100022627 


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 the findings of a Department of the Army Inspector General (DAIG) investigation and the report of investigation (ROI) be amended to reflect the charges that he engaged in "cup checking" and that he committed a false official statement in violation of Article 105 of the Uniform Code of Military Justice (UCMJ) are unsubstantiated.

2.  The applicant states the false and erroneous DAIG findings remain a persistent threat to his continued service and his ability to compete for promotion.  He claims that in the final decision of 3 July 2008, the DAIG opined he had made a false official statement that he had engaged in "cup checking" of male Soldiers in his command by touching them on their genitals at various times and he identifies the specific findings he is seeking to amend.  The applicant states the findings in question were reported to his promotion board on more than one occasion; however, in spite of the findings he was still promoted to colonel.

3.  The applicant further states the DAIG findings in question and the subsequent denial of his request for reconsideration of these matters were arbitrary and capricious and were unsupported by the facts and evidence in the case.  He claims this constitutes an abuse of discretion on the part of the DAIG and equity demands that the DAIG findings be removed from his files entirely or amended to comport with the decision of the Department of Defense Inspector General (DODIG).

4.  The applicant provides an appeal memorandum and the 19 enclosures identified therein in support of his application.

CONSIDERATION OF EVIDENCE:

1.  On 2 October 2007, the DAIG notified the applicant it had completed its investigation inquiry into allegations made against him.  It further indicated the DODIG approved its ROI regarding the allegations of reprisal.  The DAIG substantiated the following allegations against the applicant:

	a.  that he changed his senior rater rating and narrative comments on an officer evaluation report (OER) for a Soldier in reprisal for a protected communication in violation of Department of Defense Directive (DODD) 7050.06 (Military Whistleblower Protection) and Title 10, U.S. Code, section 1034 (Military Whistleblower Protection Act);

	b.  that he lowered a Soldier's evaluation in violation of Army Regulation 
623-105 (Officer Evaluation System);

	c.  that he would tap or grab the genital area of other Soldiers in a public area and in uniform, conduct otherwise referred to as "cup checks," in violation of the UCMJ, Article 132 (Conduct Unbecoming an Officer), and Army Regulation 
600-100 (Army Leadership); and

	d. that he intentionally made a false official statement to the DAIG investigating officer by stating he did not specifically and intentionally walk around and slap folds in their privates in violation of UCMJ, Article 107 (False Official Statement).

2.  On 16 June 2008, the DODIG informed the applicant that after an extensive review of the additional evidence he provided, it concluded a preponderance of the evidence presented in the case did not support the substantiated reprisal finding.  Specifically, it overturned the DAIG finding and concluded the applicant did not give the officer a "do not promote" rating in reprisal for his protected communication and had informed the DAIG of its conclusion.  The applicant was also informed an inquiry was being conducted into his allegation that there was a lack of fundamental fairness and timeliness in the investigative process.

3.  On 3 July 2008, the DAIG informed the applicant that based on the results of the DODIG review, it changed the reprisal finding to "not substantiated" and based on a review of evidence provided by the applicant, it changed its allegation of a violation of Army Regulation 623-105 to "not substantiated."  It further indicated the remaining substantiated allegations were the false statement and "cup checks" findings referred to in the preceding paragraph.

4.  On 1 August 2008, the DODIG informed the applicant that it was the final authority on whether reprisal allegations have been substantiated.  Because the DAIG properly overturned the reprisal allegations, DOD's plenary jurisdiction over the results of the overall investigation ended.  Although the remaining allegations of misconduct did not address reprisal, the DODIG reviewed the DAIG investigation for sufficiency since they were added during the course of the reprisal investigation.

5.  The DODIG indicated that after conducting an in-depth analysis of all evidence and interviewing relevant witnesses, it concluded that a preponderance of the evidence did not support the substantiated misconduct allegations that the applicant "in a public area and in uniform, would tap or grab the genital area of other Soldiers (referred to as "cup checks") and made false official statements to the DAIG investigator by denying he did so."  The DODIG stated in brief that they found several errors in the Army investigation that affected the weight of the evidence.  The DODIG noted that the DAIG interview was conducted over 2 years after the applicant had left the command where the alleged events occurred and found the applicant's assertion he was caught off guard credible.

6.  The DODIG further indicated that the DAIG concluded the applicant made false official statements by denying his participation in "cup checking" based on the testimony of five witnesses.  The DODIG indicated they found the testimony of the witnesses did not establish the applicant specifically grabbed or tapped the genital area of other Soldiers.  Instead, the DODIG found the witnesses' recall of the actions was questionable as they were asked to recall actions that occurred at least 2 years before.  Further, the DAIG investigator asked imprecise questions and did not attempt to establish time, place, or context of these actions.  The DODIG summarized that it reached different conclusions than the DAIG.  The DODIG suggested to the applicant that he could request a correction of his records from this Board.

7.  On 9 October 2009 after reviewing all the evidence, the DAIG concluded there was no new evidence which would warrant overturning their findings.  As a result, the DAIG denied the applicant's request to amend the findings.

8.  Army Regulation 20-1 (Inspector General Activities and Procedures) prescribes policy and procedures concerning the mission and duties of The Inspector General (TIG).  It also prescribes duties, missions, standards, and requirements for inspectors general (IG's) throughout the Army.  Responsibilities are prescribed for commanders; State Adjutants General (AGs); and heads of agencies, activities, centers, and installations for the support of IG activities.

9.  Chapter 3 of Army Regulation 20-1 contains guidance on IG records.  It states all IG records are the property of the Secretary of the Army (SA) and TIG maintains these records on behalf of the SA.  TIG, Deputy TIG, Principal Director to the IG for Inspections, and their designated representatives (DAIG's legal advisor and deputy legal advisor) have the authority to release IG records.

10.  Paragraph 3-12 of Army Regulation 20-1 provides guidance on requests for reconsideration of IG findings, opinions, judgments, or conclusions.  It states requests to add or delete a subject, alter a function code, and/or alter an allegation determination in an IG record will be forwarded or directed to DAIG's Assistance Division for referral to the appropriate divisions within DAIG for review prior to action by TIG, Deputy TIG, or Principal Director to the Inspector General for Inspections.  Only TIG may approve or disapprove requests to amend determinations in IG records.  Requests may be granted upon showing of fraud, mistake of law, mathematical miscalculation, or newly discovered evidence.

11.  Paragraph 7-4 of Army Regulation 20-1 provides guidance on special investigations and states the DODIG is the final approving authority for whistleblower reprisal cases that are declined or closed administratively in accordance with DODD 7050.06.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the DAIG ROI in question should be corrected to reflect the charges that he engaged in "cup checking" and that he committed a false official statement in violation of Article 105 of the UCMJ are unsubstantiated has been carefully considered and found to have partial merit.

2.  The law governing the operation of the ABCMR does not prohibit the ABCMR from correcting a substantiated DAIG finding of misconduct against a Soldier.  The regulation governing IG operations provides only that the IG may amend determinations in IG records.  However, this regulatory authority does not trump the authority granted the Board by statute.

3.  Although the ABCMR has the authority to change the findings in a DAIG ROI, this authority should be exercised rarely and with great caution.  Changing a report intrudes upon the independence of the DAIG.  Further, in this case, the DAIG prepared a lengthy investigation of the applicant and had the benefit of speaking to witnesses and examining the evidence.  However, the DODIG provided some compelling reasons for finding all of the allegations, including misconduct and lying, were not substantiated.

4.  By its authority, the DODIG could change the reprisal (whistleblower) findings.  However, its authority did not extend to the other allegations, but the recommendation should be given some weight.  In light of the reasons cited by the DODIG, granting the applicant some relief is appropriate.  However, rather than amending the DAIG's findings concerning misconduct and lying, it would be more appropriate to recommend the DAIG report be amended to include the DODIG findings concerning the misconduct and lying.  While this does not absolve the applicant, it will ensure that anyone who reviews the report will take the DODIG findings and recommendations into consideration when rendering any personnel management decision on the applicant.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DAIG ROI to include the DODIG findings that the misconduct and lying ("cup checking" and false official statement) allegations were unsubstantiated.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the DAIG ROI from his record and/or to amend the findings and recommendations of the DAIG.



      _____________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)                                         AR20100022627



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ABCMR Record of Proceedings (cont)                                         AR20100022627



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