IN THE CASE OF:	  

		BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20120020938 


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:

* removal of Department of the Army Inspector General (DAIG) Record TJ 02 XXX from his records
* reinstatement on the 2008 Sergeant Major (SGM) Selection List
* promotion to SGM with an effective date consistent with his original selection for promotion
* assignment to an SGM position at his current duty station of Fort Bragg, NC

2.  He states he requests the Board's assistance to correct a situation in which the DAIG has systematically violated his due process rights and made other legal mistakes in regard to DAIG Record TJ 02 XXX, thereby resulting in his removal from the 2008 SGM promotion list.

3.  He provides a self-authored statement and documents listed in the attached table of contents.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the Regular Army in the rank of master sergeant/
pay grade E-8 at the time of his request.

2.  He submits a U.S. Army Intelligence Center and Fort Huachuca memorandum for the 111th Military Intelligence (MI) Brigade, dated 23 May 2002, subject:  IG Action Request (Anonymous/TJ 02 XXX).  The Fort Huachuca Inspector General (FHIG) states the Office of the IG received complaints alleging misconduct by members of the command.  The FHIG requested that the command provide a copy of its investigation/inquiry to the FHIG office when completed.

3.  On 24 June 2002, the 309th MI Battalion Commander appointed an investigating officer (IO) for a commander's inquiry into the facts surrounding anonymous FHIG complaints regarding Company A drill sergeants (DS's).  The applicant was assigned as a DS in the 309th MI Battalion at the time of the investigation.

4.  A memorandum, Headquarters, 309th MI Battalion, dated 2 July 2002, subject:  Report of Commander's Inquiry/Investigation, stated the IO interviewed 31 trainees in reference to the anonymous trainee abuse allegations listed in the IG Action Request, dated 23 May 2002.  The IO stated she interviewed them in buddy teams to create a more personal tone to the interview and assure the trainees that they would not suffer any retribution for any information provided (a concern for many of the trainees interviewed).

	a.  The allegation that unidentified DS's improperly conducted physical training (PT) on 6 and 7 May 2002 in an area that had been posted "Do Not Enter" and "Danger" in violation of a local order was substantiated.  However, the same signs were posted on the PT fields.  The Directorate of Installation Support stated the contractors were instructed to water the fields in the evenings so they would be dry by morning PT.  Sometimes Chafee Parade Field was watered on demand based on the ceremony schedule; therefore, PT should not have been done on Chafee Parade Field.  Soldiers were not to perform PT on fields that were wet from watering because all watering on Fort Huachuca utilized recaptured waste water.  Nearly every trainee interviewed attested to the 6 and 7 May PT incident with clarity and consistency.  The parade field in question was the Chaffee Parade Field where there were numerous warning signs posted stating, "WARNING.  This land is irrigated with recaptured waste water.  Avoid all contact."  Trainees testified they did push-ups, sit-ups, and various grass drills on that field and the field was wet.  However, DS A____ did not perform any physical activities on the grass herself.  Both DS A____ and the applicant stated separately that the parade field was dry on both days in question.

	b.  The allegation that unidentified DS's improperly made Soldiers break physical profile limitations in violation of Army Regulation 350-41 (Training in Units) was substantiated.  Nearly every trainee interviewed provided that he or she had been forced to violate his or her physical profile limitations or was present when someone was forced to violate his or her physical profile limitations because the Company A DS's policy was:  "if you don't have your profile on you, then you don't have a profile."  Some of the incidents resulted in further injury/pain to the Soldier.  Copies of the physical profile forms were kept at the company; therefore, that practice was unnecessarily punitive to Soldiers who lost or washed their physical profile form.  DS A____ and the applicant were identified by name as enforcing that "policy."  Both DS A____ and the applicant confirmed in interviews with the IO on 2 July 2002 that they required Soldiers to perform the full PT on occasion if they had lost/forgotten their physical profile forms and were habitual offenders.  They added that most of the time they sent them inside the company headquarters to get a copy of their physical profile form; however, they did have a policy that if the Soldier didn't have the physical profile form on him or her, then the Soldier didn't have a physical profile.

	c.  The other allegations listed were found to be unsubstantiated.

	d.  The IO recommended that the battalion issue a policy letter on "Treatment of Soldiers on Profile" so there would be no question about what was expected.  Additionally, all Company A DS's should be counseled immediately to cease all enforcement or mention of a "if you don't have a profile on you, then you don't have a profile" policy.

	e.  The IO also recommended instructing the companies/DS's or issuing a policy memorandum stating that Chaffee Parade Field was off limits for PT or any other activities without prior coordination with the Directorate of Installation Support.  In addition, they must be advised that no PT would be conducted on any grassy area that was wet from the sprinkler system.

5.  On 9 July 2002, the battalion commander provided the Report of Commander's Inquiry/Investigation to the Company A commander.

6.  A Department of the Army Inspector General Action Request System (IGARS) printout of Case Number TJ 02 XXX provided to the Board by both the applicant and the DAIG shows the case was opened on 23 May 2002 and closed on 12 July 2002.  A synopsis states the DAIG Office received an anonymous letter containing several allegations against the DS's of Company A, 309th MI Battalion, primarily DS A____ and the applicant.  It shows two allegations against the applicant were substantiated.

7.  He submits a noncommissioned officer (NCO) evaluation report (NCOER) for the rating period September 2001 through August 2002.  The report shows his rater marked him as "Among the Best" for overall potential for promotion and/or service in positions of greater responsibility and his senior rater gave him the highest ratings for both overall performance and overall potential.

8.  He submits a DA Form 638 (Recommendation for Award), dated 21 October 2002, showing he was awarded the Meritorious Service Medal for the period 16 December 2000 to 31 December 2002 for exceptionally meritorious service as a DS.

9.  He was promoted to the rank of sergeant first class (SFC)/E-7 effective 1 November 2002.

10.  A U.S. Army Human Resources Command (HRC) Fiscal year 2008 (FY08) Command Sergeant Major (CSM) Selection Board Post-Board Screen document entitled "Ongoing USAIGA Inquiry" states the FHIG received a complaint alleging that the applicant harassed and otherwise abused trainees in violation of U.S. Army Training and Doctrine Command (TRADOC) Regulation 350-6 (Training – Enlisted Initial Entry Training Policies and Administration).  This document stated the FHIG would forward a completed copy to the DAIG.

11.  The applicant submits a DAIG letter addressed to him, dated 24 October 2008, stating a review of the file could not determine that he was officially notified of the result of an earlier case (TJ 02 XXX).  The letter served the purpose of his notification.  The letter stated the allegation that he improperly harassed and otherwise abused trainees in violation of TRADOC Regulation 350-6 was substantiated.

12.  He submits an FHIG memorandum for the DAIG, dated 26 November 2008, subject:  Request Change in Determination from "Substantiated" to "Assistance," Case TJ 02 XXX.  This memorandum stated the FHIG Office was notified by (redacted) on 18 November 2008 that she was informed there were substantiated allegations against her and the applicant, but neither were aware they were ever under an IG investigation, nor were either ever notified that allegations were substantiated against them by the IG.

13.  The FHIG further stated it conducted a subject search in IGARS and found case TJ 02 XXX which listed the applicant as the subject of an investigation on trainee abuse.  Of the 13 allegations listed, two allegations were substantiated.  The IGARS case notes were empty, no report of investigative inquiry (ROII) existed, and the synopsis contained non-specific information.  After reviewing the hard-copy case file for TJ 02 XXX, the FHIG confirmed that there were no notification letters for the outcome of the case for either subject of the investigation or for the commander of the subjects.  The FHIG Office recommended/requested a change in determination of case TJ 02 XXX from "substantiated" to "assistance."  The FHIG further stated it was not feasible to re-conduct or recreate the investigation as all of the trainees interviewed and the personnel in the subject's chain of command were no longer assigned to Fort Huachuca.  The FHIG indicated the TRADOC IG concurred with the recommendation to change the determination of the case from "substantiated" to "assistance."

14.  An HRC memorandum, dated 18 December 2008, subject:  U.S. Army Senior Enlisted Review Board (USASERB) Referral to a Standby Advisory Board (STAB) – (Applicant), stated the applicant was referred by the USASERB for removal consideration from the U.S. Army Sergeants Major Course (USASMC) training list due to derogatory information in his history files.  It stated that based on the included documentation, the applicant's packet would be forwarded to a STAB for removal consideration.  Once convened, the Headquarters, Department of the Army (HQDA), STAB would make a recommendation to the Director of Military Personnel Management as to whether he should be retained or removed from the USASMC training list.

15.  He submits several STAB letters of support from former DS's, former members of his chain of command, and other personnel.  His battalion commander during the time in question wrote that he didn't recall or have any recollection of IG issues with the applicant at all.  He stated that if there was a substantiated complaint, then he did not recall the IG or anyone from his office contacting him before, during, or after the investigation.  He stated the applicant was a fine Soldier and trainer who received a very good NCOER and Meritorious Service Medal for his tour of duty.  He stated these were not the result of someone receiving a substantiated IG complaint, especially in a TRADOC training environment where conduct is meticulously scrutinized.

16.  He submits his request for retention on the USASMC training list, dated 13 January 2009.  In his letter he details how, in the case which substantiated an allegation of trainee abuse while he was a DS, he was not afforded an opportunity to address the allegations during the investigation due to a violation of his due-process rights by the FHIG Office.

17.  An HRC memorandum, dated 30 March 2009, subject:  HQDA Enlisted STAB Removal Decision Pertaining to (Applicant), stated the board members recommended and the Director of Military Personnel Management approved removal of his name from the FY08 SGM Promotion Selection List.  It stated he would be eligible to compete in subsequent boards provided he is otherwise qualified.

18.  An HRC memorandum, dated 9 April 2009, subject:  USASMC SGM Training and Selection List Removal Action – (Applicant), states the applicant was removed from the FY08 USASMC SGM Training and Selection List by the HQDA STAB which made him ineligible to attend USASMC Class 60.

19.  A DAIG letter addressed to the applicant, dated 20 April 2009, stated the DAIG had reviewed his case and disapproved his request to reverse the findings of case TJ 02 XXX.

20.  He submits a U.S. Army Medical Department Activity memorandum addressed to him, dated 16 July 2009, stating no medical documentation had been recorded/reported indicating Soldiers or other persons who may have come into contact with the reclaimed water from the irrigation system(s) at Chaffee Field or Prosser Village Softball Fields had suffered or showed acute and/or chronic illness.

21.  A DAIG letter addressed to him, dated 3 September 2009, stated the DAIG had reviewed his case and disapproved his second request to reverse the findings of case TJ 02 XXX.

22.  He submits a copy of his letter of complaint to the Department of Defense Inspector General (DODIG) Office against the DAIG for violations of his due-process rights and other mistakes of law in regard to the DAIG record TJ 02 XXX.  He stated that the most significant and clear violation by the DAIG Office of its own regulation was that he received no notice for 6 years from the DAIG or FHIG of a 2002 allegation and substantiated finding against him and in 2008 that IG record was used as the basis for an adverse action before he received any notice of it.

23.  His records contain memoranda related to his consideration for removal and subsequent removal from the SGM Promotion List, CSM Selection List, and SGM Training List.

24.  He submits that a thorough review of the records, when put in their proper context, will reveal that the true facts of the case will enable the Board to grant relief in his petition for assistance.  The most significant and clear violation was that he received no notice from the DAIG or FHIG for 6 years of a 2002 allegation and substantiated finding against him and in 2008 that IG record was used as the basis for adverse action before he received notice.  He would be remiss not to mention that there were numerous other violations of the regulation, mistakes of law, and a repetitive lack of due process afforded him in 2002 and 2008.

25.  He states he understands that Soldiers often attempt to change the outcome of a case, but he is simply trying to set the record straight.  He will demonstrate through the attached documents that there is no basis for the DAIG to substantiate the charges against him as well as significant violations of his due-process rights.  While he understands and respects the need for the DAIG to rely on the work of field IG's, the investigative standards of Army Regulation 20-1 (Inspector General Activities and Procedures) regarding unfavorable information were simply not met and the DAIG Office should have corrected this situation during its reviews after being presented the facts by multiple parties.  Moreover, the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation referred to in the IG record was incomplete.  Specifically, it never received a legal review nor were any specific findings approved by the battalion commander.  As a result, his Army career has been significantly impacted.  He has fallen substantially behind his peers as he has not been promoted, he is ineligible to attend the Sergeants Major Academy, he is unable to serve in an SGM assignment, and he has been ineligible to compete for CSM in three boards.  Even if the DAIG were to remove this case from his record today, the actions have caused permanent damage to his career due to lost professional opportunities.

26.  He states that in November 2008 after his selection for promotion to SGM, he unexpectedly received a letter from the DAIG Office stating a review of its records revealed he was never notified of a substantiated complaint of trainee abuse 6 years prior and that letter was the official notification.  He learned that unbeknownst to him, during the post board screening process on 11 September 2008, HRC received derogatory information in reference to him from the DAIG of an "ongoing USAIG inquiry."  He contacted the DAIG Office to determine the nature of the derogatory information, but was told he must use the Freedom of Information Act (FOIA) to obtain any information.  This response puzzled him because Army Regulation 20-1, paragraph 8-6, specifically requires that a subject/suspect be provided an opportunity to comment on unfavorable information during the interview process, which he was not.  He was further taken aback when the DAIG denied his request under the Privacy Act and issued a partial denial under the FOIA.  He was in the position of having to prove that something didn't happen, in effect, trying to prove a negative.  Although the STAB authorized him 30 days to respond, he was unable to acquire any specifics of the complaint or its findings from the DAIG during the allotted time.  He responded to the STAB by explaining the situation to the best of his ability on 13 January 2009, but he was subsequently informed on 9 April 2009 that the STAB removed him from the promotion list.  It was a month later in May 2009, after 5 months of multiple FOIA requests, that portions of the IG's records began to trickle in to him.

27.  He states he learned an anonymous DAIG complaint was originally filed against all the DS's of Company A, 309th MI Battalion, while he was serving as a DS in 2002.  A command-level investigation was conducted without notice to either him or his chain of command that he or any DS had been singled out as one of the subjects of the complaint.  The fact that there was no notification is evidenced in multiple letters of support from the brigade CSM, battalion commander, company commander, first sergeant, two senior DS's, and a fellow DS, as well as the DAIG FOIA response and a memorandum from the 2008 FHIG.

28.  He states an IO from the battalion S-3 interviewed all Company A DS's under the pretext of a separate investigation of allegations against the company's first sergeant, but the IO failed to explain that there was an actual complaint against the DS's.  They were asked to sign a rights warning waiver to ensure they told the truth.  He did that because he had nothing to hide and he still doesn't.  He would have answered the questions exactly the same way, but the IO (or subsequent member of his chain of command) was duty bound to notify him and any other DS if the focus of the investigation included them personally.  This criminal rights warning waiver was not the "notification" required during multiple different steps of an IG investigation in Army Regulation 20-1.  The IO had everyone she talked to execute a rights waiver.  He had no idea his conduct was under question and he was never asked to rebut any specific allegations.  He was only asked very general questions by the IO and never submitted a written statement or saw any written statements.

29.  He states that at no time was he ever informed of an IG complaint or subsequent investigation, contacted by an IG, or counseled by any member of his unit's chain of command.  As additional evidence that no genuine command or IG investigation ever took place, he was never suspended from DS duties in accordance with TRADOC Regulation 350-6, paragraph 2-7e.  Suspension is required when a serious incident occurs that requires an investigation, which was standing operating procedure (SOP) during all investigations in the 111th MI Brigade.  In fact, in marked contrast to the DAIG's position that an open and legal investigation took place, his chain of command provided him an outstanding performance evaluation the very next month, awarded him a Meritorious Service Medal 3 months later, and he was promoted to SFC only 4 months later.  

30.  The FHIG validated all of his assertions after he conducted an independent internal review of the record.  The FHIG subsequently recommended removal of the original complaint and findings from his records with concurrence from the TRADOC IG and re-categorization as an "assistance request" due to numerous cited violations of regulatory requirements, several due-process violations, and a startling lack of evidence.  It remains confounding that the DAIG did not accept the FHIG's recommendation.

31.  He states the FHIG failed to provide him an opportunity to respond to the allegations or notify him of the results of the case.  The right to respond to an allegation is fundamental.  Army Regulation 20-1, paragraph 4-6e, 
paragraph 8-4h, and paragraph 8-4d require the IG to provide an opportunity to respond and to notify the subject of the results.  This did not happen as is confirmed in the FHIG letter.  Had he been afforded the opportunity to properly address the original allegation in 2002, as required by Army Regulation 20-1 and other Army regulations, he would have been able to clearly and easily demonstrate the allegation was not only fictitious, but the circumstances surrounding the allegation were solely the result of following both the written orders and SOP's of his unit's chain of command as evidenced in the letters of support from the brigade CSM, battalion commander, company commander, first sergeant, two senior DS's, and a fellow DS.

32.  He states the DAIG investigation and conclusion fail to meet the standards for justifying a conclusion established in Army Regulation 20-1.

	a.  Army Regulation 20-1, paragraph 8-7b(2)(b), states an IG investigation must clearly state what standard is alleged to have been violated and provide documentary evidence and testimony or statements that support the conclusion.  Additionally, Army Regulation 20-1 requires a discussion that concisely analyzes all of the evidence considered, and a clear conclusion that states what specific standard or regulation was violated.  That did not happen.

	b.  Army Regulation 20-1, paragraph 7-2b, states "these conclusions will establish IG findings regarding violations by a specific individual of an established standard and will not be vague statements."  It is obvious that this requirement was not met in the report of commander's inquiry or the commander's determination letter as he will discuss in further detail.

33.  He states the IO's Report of Commander's Inquiry/Investigation does not attribute the violation to him.  The investigator's findings simply do not attribute the substantiated allegation that "unidentified Drill Sergeants improperly conducted PT on 6 & 7 May 2002 in an area that had been posted 'Do Not Enter' and 'Danger' finding against [him] in her written Report of Commander's Inquiry/
Investigation" under paragraph 2a.  In fact, the copy of the report provided by the DAIG through FOIA only has "DS A____" penciled in next to the paragraph.  There is absolutely no basis for the DAIG to substantiate this allegation against him.

34.  He states the battalion commander never substantiated the allegations against him.

	a.  The commander's decision memorandum, dated 9 July 2002, is very vague in its direction and makes no mention of him (or any DS), nor does it attribute any of the substantiated findings against him.  Therefore, the DAIG cannot substantiate the allegations against him.  If that were the commander's intent, he would have done so as he stated in his email discussing his decision letter.

	b.  In fact, Colonel (Retired) K____ has affirmed that it was not the intent of his decision memorandum.  Moreover, the battalion commander's letter was addressed to the company commander and it appears the investigation was directed at the chain of command and the company commander.  The investigator wrote the report in generalities which explains why none of the DS's were notified that they were subjects of an allegation.  If this were the case, it would be wrong to then simply substantiate allegations against the individual DS's.

	c.  As additional evidence, there was never any intent to substantiate trainee abuse against him, the recommendations (section 3) of the IO in her Report of Commander's Inquiry/Investigation recommends policy changes and informing the DS's of the new policies – not to substantiate trainee abuse against him or take any other type of administrative or punitive action.

35.  He states the DAIG does not have the regulatory authority to independently determine and substantiate trainee abuse.  The commander's decision memorandum does not make any determination that trainee abuse occurred.  TRADOC Regulation 350-6 clearly states under the definition of trainee abuse that "in accordance with this regulation, only a commander can determine that trainee abuse has occurred."  No such determination was ever made by the commander.  As additional evidence that trainee abuse was never determined, TRADOC Regulation 350-6, paragraph 2-7, mandates that commanders report allegations of trainee abuse as does TRADOC Regulation 1-8 (TRADOC Operations Reporting), chapter 2.  No such report was ever filed against him as evidenced by the FOIA response from TRADOC.  

36.  He states the DAIG improperly sent unauthorized information intended for use as an adverse action to the SGM Selection Board Post-Board Screen.  According to Army Regulation 20-1, paragraph 3-3a, IG records will not be used as the basis for adverse action against individuals, except when specifically authorized.  Paragraph 3-3b states that when an IG record is used as a basis for adverse action, the individual concerned may be entitled to additional due process.  Not only did he not receive "additional" due process, he never received his original due process.  This information should not have been sent to HRC to be used as a basis for his removal from the SGM list until he was afforded his due-process rights.

37.  He states the FHIGIDAIG failed to maintain the records.  The DAIG has placed him at an extreme disadvantage to defend himself against the allegations by not allowing him to review the evidence used to substantiate the allegation and provide a defense.  Army Regulation 20-1, paragraph 7-2a, mandates that "all Command products related to the allegation under IG investigation will become part of the IG record subject to the provisions outlined in Chapter 3."  Lieutenant Colonel (LTC) S____'s (FHIG) letter to the DAIG confirms there were no notification letters for either of the subjects of the investigation or for the commander of the subjects for the outcome of the case, nor were there any sworn statements from the 30 trainees interviewed.  When he requested copies of all sworn statements through FOIA, the DAIG Office responded that it did not have the records as did LTC S____ in his review.

38.  He states the Report of Commander's Inquiry/Investigation did not or should not have passed a legal review.  The proceedings did not comply with legal requirements.  He did not receive notice in accordance with Army Regulation 
20-1 as the investigation was initiated by the IG; lack of due process error is harmful; there was not sufficient evidence to support the overreaching and contradictory conclusions the IO made; and there were no recommendations specific to him, nor did the battalion commander approve any findings specific to him.  When the DAIG fails to meet all legal requirements and either intentionally or unintentionally fails to provide a subject with all due process rights, the IG Office falls short in achieving its organizational mandate.  Army Regulation 20-1, paragraph 8-7c, clearly states legal reviews are required for an ROII containing allegations with "substantiated" conclusions.  Considering that the DAIG Office admitted that "the IGARS case notes were empty, no ROII existed, and the synopsis contained non­specific information" in both its response to his FOIA request and in LTC S____'s letter to the DAIG, it is obvious that the case did not go through a legal review.  If it had gone through a review in 2002, all of the investigative shortcomings and process violations would have come to light as it did in LTC S____'s review in 2008, and he would not have had to go through this very trying and frustrating experience.

39.  He states the DAIG failed to properly close this case without findings during their 2008, 2009, and 2010 reviews.  In order to properly close a case, there are numerous requirements of notification to the subject.  Army Regulation 20-1, paragraph 4-10, states that closing an IGARS consists of notifying the subject and closing the files in the IGARS database.  Consequently, because this never happened, the DAIG never properly closed the case.  When the DAIG Office discovered this open case with allegations (upon promotion board review) that were considerably older than 3 years – combined with the fact that he had never been notified or given an opportunity to address the unfavorable information in a timely manner – Army Regulation 20-1, paragraph 7-2b(7)(a), dictates that the IG's will use the phrase "closed without findings."  The allegations would have been more than 6 years old at that point and the IG should have documented the relevant time period and "closed without findings" just as requested by the TRADOC IG and the FHIG after his review in 2008.

40.  He states that in a continued attempt to allow the system to work, he requested assistance from the DODIG in November 2010 to provide an impartial look by a disinterested third party.  After over 14 months and several requests to speak with the DODIG investigator in charge of this particular case, he was not contacted and the DODIG simply referred the case to the DAIG who simply did not respond.  While requesting a status of the case on 13 July 2012, the DODIG informed him that the case was closed on 5 January 2012 without any results or explanation.

41.  He states the FHIG and DAIG's failures noted above and their lack of documentation force him into a position where he is unable to demonstrate the specific allegations of the anonymous complaint were actually fictitious because he now does not have access to the policy letters and SOP's that governed all of Company A DS's actions in 2002.  To this end, however, he has obtained statements from the former members of his chain of command confirming the policies and SOP's as he will discuss in more detail.  Given the extreme untimeliness of these allegations and the impact on his ability to respond to these allegations, he requests the statements be considered sufficient to support his assertion that these documents did, in fact, exist at the time of the investigation.

42.  He states it is important to note that the notes taken by the IO are very misleading in that they only capture a small part of the conversation and only reflect portions of the conversation that answer specific aspects of a question versus the entire answer and explanation.  No greater discussion or explanation took place and they were all under the impression that it was in reference to a complaint filed against the company first sergeant.  He states the following information would have been provided and proven with supporting documentation if he was afforded the opportunity to address the allegation during the investigation.  Allegation 1:  Unidentified DS's improperly conducted PT on 6 and 7 May 2002 in an area posted "Do Not Enter" and "Danger" in violation of a local order.

43.  He states the PT area in question was part of the 111th MI Brigade's designated PT area where the brigade commander directed all DS's to conduct PT through a brigade policy letter.  Although he does not have access to the original policy letter due to the fact he was not informed of the complaint until 6 years after the investigation was completed, the policy is confirmed in the letters from the company commander, first sergeant, senior DS, and a fellow DS.  Simply stated, he was directed by the chain of command to conduct the PT on those fields.  
44.  He states that 100 percent of the fields on Fort Huachuca were irrigated with sprinklers that used water processed by the Fort Huachuca water treatment facility, as evidenced in a letter provided by the Fort Huachuca Department of Public Work's Physical Science Technician, Mr. C____ H____.  Because Fort Huachuca is located in the middle of the desert, PT cannot be conducted at any location other than the PT fields which require irrigation in order for grass to grow.  If there truly was an issue with conducting PT on these fields, the liability should not fall on the individual DS, but on the post commander.

45.  He states the very same fields continue to be used as the 111th MI Brigade's designated PT area to this day.  If there was a problem with the fields, they would have been placed off limits.  Not a single Soldier got sick from conducting PT in these areas; therefore, no trainee abuse occurred.  The investigator confirmed this when she stated, "None of the trainees interviewed reported any illness after this incident that may have been associated with contact with the recaptured waste water."  Additionally, Captain (CPT) H____ V____, Chief, Fort Huachuca Environmental Health, confirmed that "no medical documentation has been recorded/reported indicating that Soldiers, Department of Army Civilian Personnel, DOD Contract Workers and their dependents who may have come in direct contact with the reclaimed water from the irrigation systems(s) at Chaffee Field and Prosser Village Softball Fields have suffered or showed acute and/or chronic illness."

46.  He states he was not even present during the PT sessions in question; therefore, the allegation cannot be substantiated against him.

	a.  The investigator did not claim this allegation was attributed to him in her report.  The investigator did not claim in her findings that he was at the PT location (hence the reason she did not attribute the substantiated finding against him).  She only stated in her findings that "Both DS A____ and [Applicant] stated separately that the parade field was dry on both days in question."  He only knew this because he was conducting a platoon run with a route that took him by the PT field in question.

	b.  Even more telling is the fact that she never asked or wrote anything in her notes detailing an answer to question number 6 which asks, "Do you know what the policy is for conducting PT on any fields on post irrigated with recaptured waste water?"  The investigator's notes were blank because he was not accused of conducting PT on that field on the days in question.  The investigator never asked him this question because she knew he only ran by with his platoon conducting a platoon run.

	c.  The investigator's written notes for question number 6b only state "doesn't recall fields being wet."  She asked if he had noticed if the fields were wet or dry on 6 and 7 May.  His answer referred to all fields in the PT area, not just the specific fields in question.

47.  He states he is currently in a position where he finds it almost impossible to defend himself against the second substantiated allegation that unidentified DS's improperly made Soldiers break physical profiles in violation of Army Regulation 350-41 many years after the fact since the investigator does not explain the who, what, when, where, or why of the charge in her report.  The IG has been unable to produce the sworn statements, which leads him to conclude that they don't exist.  Additionally, if he had been afforded the opportunity to respond in 2002 as required, the investigator could have re-interviewed the Soldiers to get the whole truth – this option is forever lost.  

48.  He adamantly denies he ever knowingly made any Soldier violate his or her physical profile limitations.  He had Soldiers conduct PT in accordance with the limitations of their physical profiles.  He was the DS for the "Chapter Platoon" for a period of 5 months preceding this investigation.  As part of this duty, it was his responsibility to administer the company's Special Population PT Program which included all profiled Soldiers, Army Physical Fitness Test failures, and overweight Soldiers.  His program was such a success that he was selected to develop a Battalion Special Population PT Program by the battalion CSM.

49.  He states that Soldiers often were not exactly clear regarding the limits of their physical profiles and would mistakenly believe they did not have to conduct PT at all.  He never told a Soldier that he or she could not go to sick call or further injure or aggravate a Soldier's injury by making him or her conduct PT outside the limits of his or her physical profile.  In fact, he had a close working relationship with the battalion doctors and met with them several times a week to clarify the limitations of the physical profiles and determine the best program to maintain the Soldiers' physical fitness while they recovered from their injuries.  If he had been afforded an opportunity to address this issue at the time of the investigation, he could have provided specific information, and the investigator could have re-interviewed the Soldiers to find out the entire truth.

50.  He states the company did have a written barracks SOP signed by the company commander which was provided to each Soldier during in-processing.  The SOP stated Soldiers were required to "maintain" their physical profile forms on them at all times and, if not, it was as if the physical profile did not exist.  This was not his rule, this was the policy of the commander.  This is evidenced in the letters of support from the company commander, first sergeant, senior DS, and a fellow DS.  This procedure aided DS's to direct appropriate exercises when they wanted to have a Soldier conduct exercise as part of an on-the-spot correction throughout the training day, not only at PT time.  He always maintained a binder where he kept copies of all current physical profiles and ensured he took it to Special Population PT with him each morning, which normally solved the issue of the Soldier not having the physical profile form on him or her right there on the spot.  In the event that he did not have a copy of a new physical profile, he would send them to their room to retrieve the physical profile as described in the investigator's notes for "Question 1."  As noted in response to "Question 3," he didn't have any occasion where a Soldier couldn't find his or her physical profile (that actually existed).

51.  He states there was an instance of an exception to what he described above.  He recalls two Soldiers who were APFT failures and habitually said they "accidentally" destroyed their physical profile forms by washing them or something along those lines.  On two separate occasions when this happened, the Soldiers did not conduct PT and he marched the Soldiers to the Troop Medical Clinic after the PT session was completed where the doctor told him the Soldiers were never issued physical profiles.  After the same Soldiers again claimed the same thing, instead of taking them to the doctor after completing the PT session, he directed them to conduct PT.  After completion of the PT session, the doctor told him they were lying and were never physically profiled.  After this, they stopped trying to "get out of PT" in this manner.  This is the only thing he can think that the Soldiers may have told the investigator, but without knowing the whole situation (and those Soldiers would not have known), it would have appeared to them that he made them violate their physical profile limitations.  This course of action was approved ahead of time with the Senior DS.  This level of detail was explained to the investigator, but was not annotated in the notes.  This entire explanation was simply captured in the investigator's notes by stating, "If it seems habitual will make the Soldier do PT."  This was the basis for "confirming" the allegation that he required Soldiers to conduct full PT if they forgot their physical profile forms.  The procedures, the company's SOP, the way he conducted PT, as well as his professionalism in conducting PT with physically profiled Soldiers, is explained in the enclosed letters by the company commander, first sergeant, two senior DS's, and a fellow DS.

52.  In conclusion, he states he hopes it is now abundantly clear that the facts do not support either of the allegations against him and there were significant violations of his due-process rights on the part of the DAIG and FHIG.  As a result, he respectfully suggests that this is more than sufficient justification for the ABCMR to grant relief in his case, remove the substantiation from his record, and direct restoration of his promotion to SGM.  He asks that the Board give serious consideration to the fact that, simply put, he has suffered a great injustice in this case and he asks the Board to make this right.
53.  Army Regulation 20-1, chapter 7, states an IG investigation is a formal fact-finding process.  Investigations are the IG function that provides the commander or directing authority another means through which to resolve allegations of impropriety.  IG's may investigate violations of policy, regulation, or law; mismanagement; unethical behavior; fraud; or misconduct.  Commanders may opt for an IG investigation or investigative inquiry when extreme discretion is necessary or the allegation requires preliminary fact finding before deciding to resolve the alleged impropriety in command, IG, or other channels.  The primary purpose of IG investigations and investigative inquiries is to resolve allegations of impropriety; to preserve confidence in the chain of command; and, if allegations are not substantiated, to protect the good name of the subject or suspect.  IG's who conduct investigations or investigative inquiries obtain evidence to determine if the allegations are "substantiated" or "not substantiated" and if any issues associated with the allegation(s) are "founded" or "unfounded."  The preponderance of credible evidence is the standard of proof IG's use to substantiate or not substantiate allegations.  Preponderance is defined as superiority of weight and indicates that the alleged impropriety probably occurred.  Within the investigations function, IG's have two fact-finding methodologies they may use – investigative inquiries and investigations.  The definitions of these two methodologies are as follows:

	a.  An investigation is a formal fact-finding examination into allegations, issues, or adverse conditions of a serious nature that provides the directing authority a sound basis for making decisions and taking action.  IG investigations involve the systematic collection and examination of evidence that consists of testimony recorded under oath, documents, and, in some cases, physical evidence.  Only the directing authority can authorize IG investigations using a written and signed directive.  IG's normally do not resolve allegations using this methodology but instead rely on the investigative inquiry defined below.  IG's report the conclusions of their investigations using a report of investigation (ROI).

	b.  An investigative inquiry is an informal fact-finding examination into allegations, issues, or adverse conditions that are not significant in nature – as deemed by the command IG or the directing authority – and when the potential for serious consequences (such as potential harm to a Soldier or negative impact on the Army's image) are not foreseen.  The IG investigative inquiries involve the collection and examination of evidence that consists of testimony or written statements; documents; and, in some cases, physical evidence.  Command IG's direct investigative inquiries and provide recommendations to the directing authority or subordinate commanders as appropriate.  The directing authority reserves the right to direct an investigative inquiry if he or she feels an investigation is not appropriate.  IG's resolve most allegations using this methodology and report their conclusions using an ROII.
	c.  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 IG's use to substantiate or not substantiate allegations.  Preponderance is defined as "superiority of weight."  IG's will include in the ROI a complete, objective, and impartial presentation of all pertinent evidence gathered during the investigation.

54.  Army Regulation 20-1 in effect at the time of the allegations provided for the following:

	a.  Paragraph 3-3a stated IG records will not be used as the basis for an adverse action against individuals by directing authorities or commanders, except when specifically authorized by the Secretary of the Army, Under Secretary of the Army, Chief of Staff of the Army, Vice Chief of Staff of the Army, or the IG.

	b.  Paragraph 3-3b stated IG records of non-senior officials would not be used as a basis for an adverse action that would be filed in a non-senior official's official personnel file (as defined by Army Regulation 600-37 (Unfavorable Information)) unless the issuing authority had obtained approval as outlined in paragraph a above.

	c.  Paragraph 4-6e stated that if IG's initiate an inquiry or recommend an investigation, they will verbally notify appropriate commanders or supervisors and the subjects or suspects of the inquiry/investigation and inform them of the nature of the allegation.

	d.  Paragraph 4-10 stated the closing of IGARS consisted of providing the complainant a final reply, notifying the suspect/subject (see paragraph 8-4b(7) for investigations and paragraph 8-4b for inquiries), closing the file in the IGARS database, making the appropriate reports, and analyzing any developing trends.

	e.  Paragraph 8-4b stated an IG investigation is a formal fact-finding process.  Paragraph 8-4b(2) stated the procedures would include verbally notifying appropriate commanders or supervisors and the subjects or suspects of the investigation and informing them of the nature of the allegations.  The notifications would be documented and enclosed with the ROI.

	f.  Paragraph 8-4d stated that if the allegations in the IG investigation/
investigative inquiry are substantiated, it is mandatory for all Army IG's to formally notify the subject/suspect in writing as to the conclusions.  It is the right of all subjects or suspects to address the unfavorable information against them.

	g.  Paragraph 8-6 stated that during an IG investigation or inquiry, unfavorable information (any credible, derogatory information that may reflect on an individual's character, integrity, trustworthiness, or reliability) obtained about a suspect/subject may result in an unfavorable comment in the ROI/ROII.  The individual has a right to know of the unfavorable information during the IG inquiry or investigation.  The IG will orally notify the person concerned (notification) of the allegations and interview the subject or suspect before the IG inquiry or investigation is completed.  The IG will provide the person an opportunity to comment on the unfavorable information during the interview process.

	h.  Paragraph 8-7c stated the command or State IG would review and approve the ROI/ROII and forward the report to the supporting judge advocate or command counsel for legal review.  Legal reviews were required for all ROI's.  Legal reviews were also required for ROII's containing allegations with "substantiated" conclusions.

	i.  Paragraph 8-8 stated ROI's and ROII's would be entered into the IG electronic database.  IG's would ensure the summary of the case accurately addressed the allegations, facts, conclusions, findings, and recommendations.

55.  The current version of Army Regulation 20-1 provides for the investigative conclusions for all issues and allegations contained in ROI's and ROII's.  These conclusions will contain the specific allegation(s) and issue(s) and state that the allegation or issue occurred (substantiated or founded respectively) or did not occur (not substantiated or unfounded respectively).  These conclusions will establish IG findings regarding violations by a specific individual of an established standard and will not be vague statements.

56.  TRADOC Regulation 1-8 states, at a minimum, commanders must report allegations of trainee abuse as defined in TRADOC Regulation 350-6.  However, if the credibility of the allegation can be quickly assessed (within a few hours) and the command considers it not credible, an operations report is not required.

57.  TRADOC Regulation 350-6 defines trainee abuse as any improper or unlawful physical, verbal, or sexual act against a trainee.  It further states a determination that trainee abuse has occurred may be made only by a commander in accordance with this regulation.

58.  TRADOC Regulation 350-6 states suspension of a DS is required by Army Regulation 614-200 (Enlisted Assignments and Utilization Management) "when a serious incident occurs that requires an investigation."  This includes investigations conducted in accordance with Army Regulation 15-6 or those conducted by the Criminal Investigation Command or Military Police Investigator.  Commanders should not automatically suspend DS's or other cadre simply because they are pending a preliminary inquiry into a trainee abuse allegation.  Commanders will make suspension decisions based upon the facts of each case.

59.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states STAB's are convened to consider records of those selected for appointment to CSM but were referred by the CSM review board because of derogatory information that was identified during the post-board screening process.

60.  The HRC website states the purpose of the CSM post-board screen is to ensure that all SGM's selected for CSM are mentally, physically, morally, and professionally qualified to perform those command duties.  Immediately after the CSM/SGM promotion selection board recesses, the Soldier Records Data Center forwards the CSM select results to the HRC Promotion Branch.  The Promotion Branch sends a request for derogatory information files from the Criminal Investigation Command, the DAIG, and the Central Clearance Facility.  All information received from the agency checks is forwarded to the Director of Military Personnel Policy for a CSM Review Board.  The CSM Review Board reviews all alleged derogatory information and determines if the information warrants referral to an Enlisted STAB.  Those NCO's referred to a STAB are notified of their status.  They are provided a copy of the alleged derogatory information and given 30 days upon receipt of the notification letter to submit any information in their behalf, attesting as to why they should be retained on the CSM selection list.  They are informed that until a final determination is made, they will be deferred from appointment to CSM (this does not stop the promotion to SGM).  The NCO's rebuttal, along with his or her Enlisted Record Brief and DA Form 2-1 (Personnel Qualification Record – Part II), is forwarded to a STAB.  The STAB will recommend to the Chief of Staff Army removal from the selection list or retention on the selection list.  Approved results of the STAB are then forwarded to the NCO concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the substantiated allegations against him that he harassed and abused trainees while performing DS duties as reflected in the DAIG Record TJ 02 XXX should be changed to show they were unsubstantiated or removed from his records because the allegations are unfounded and because the DAIG has systematically violated his due-process rights and made other legal mistakes in regards to DAIG Record TJ 02 XXX, resulting in his removal from the 2008 SGM promotion list.

2.  Given the facts and circumstances presented by the applicant, it is understandable that he has arrived at conclusions that are contrary to the results of the Army Regulation 15-6 investigation and the DAIG findings based on his interpretation and view of the events and circumstances.  His contentions that the DAIG improperly sent unauthorized information intended for use as an adverse action to the CSM Post-Board Screen and failed to have a legal review conducted are not fully supported by the available evidence.

3.  However, his conclusions have merit.  The commander's inquiry substantiated that "unidentified" DS's conducted PT in an area, Chaffee Parade Field, that was marked with do not enter and danger signs due to the fact that it was irrigated with recaptured waste water.  The 2 July 2002 report of commander's inquiry's only mention of the applicant in relation to the field was that he stated the field was dry on both days in question. 

4.  The commander's inquiry also substantiated that "unidentified" DS's improperly made Soldiers break their profiles.  It appears there was a command policy that Soldiers were to have their profiles with them at all times.  The applicant is mentioned as having "enforced" this policy.  He also apparently confirmed to the IO that on occasion he made Soldiers who habitually failed to have their profiles with them do PT.  However, the finding does not make clear that the applicant's enforcement of his commander's policy necessarily resulted in Soldiers being forced to violate their profiles, especially given that not all profiles involve conditions implicating performance of PT events.

5.  In addition to the incredibly weak nature of the findings, the even more troubling aspect of this case is the utter failure of due process concerning notice and an opportunity to be heard.  At no point was the applicant or his chain of command even aware that he was somehow considered the subject of substantiated adverse findings.  In addition to his statement, this fact is borne out by statements from the applicant's then commander and peers as well as the glowing NCOER and the Meritorious Service Medal he received at the time in question.  Although he was interviewed by the IO conducting the commander's inquiry, he had no notice that he was being considered as a subject nor did he have notice that substantiated findings were entered against him in the IG realm.  He did not even become aware of the issue until 6 years later when it was revealed in a post-board scrub of his files.  The DAIG concedes the lack of notice and regulatory violation.  Because of the errors in the handling of the case, the applicant lost any meaningful opportunity to respond.

6.  Therefore, in the interest of equity and justice, it would be appropriate to grant the applicant some relief.  Because of the special requirements related to promotion to SGM/E-9, it would be appropriate:

* to enroll him in the next non-resident USASMC
* conditionally promote him to SGM/E-9 with a date of rank based on what would have been his original promotion date (with payment of all back pay)
* to make the promotion permanent upon the applicant's successful completion of the USASMC
* to remove from his Army Military Human Resource Record (AMHRR) any documents related to his removal from the FY 2008 SGM Promotion List and removal from the FY08 USASMC SGM Training and Selection List by the HQDA STAB

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 was 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:

* enrolling him in the next non-resident USASMC
* conditionally promoting him to SGM with an effective date consistent with his original selection for promotion (with payment of all back pay)
* making the promotion permanent upon the applicant's successful completion of the USASMC
* removing the AHRC memorandum directing removal of his name from the Fiscal Year 2008 SGM Promotion List and the AHRC memorandum removing him from the FY08 USASMC SGM Training and Selection List by the HQDA STAB from his AMHRR

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 removal of DAIG Record TJ020102 from his records/IGARS and assignment to a SGM position at his current duty station of Fort Bragg, NC. 




      _____________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)                                         AR20120020938



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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