IN THE CASE OF:  

		BOARD DATE:  14 September 2013

		DOCKET NUMBER:  AR20120021937 


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 that the substantiated Department of the Army Inspector General (DAIG) complaint, filed as Report of Investigation (ROI) Number DIH 10-6080, be set aside and expunged from IG records.

2.  The applicant states:

* the IG's findings were made in error
* when he directed Major (MAJ) Mxxxxxxxx to consult with a Behavioral Health Counselor, he did so with a concern for her safety and well-being, as well as the safety of all other Soldiers and civilians under his charge as Professor of Military Science (PMS)
* his direction to her was not intended as a means to classify her as fit or unfit for her position
* being geographically isolated, he did not have the alternative resources at his disposal that he would have had on an installation, such as a chaplain or Military Family Life Counselor (MFLC)
* his statements and actions during and following this referral for consultation clearly demonstrate this was not a Mental Health Evaluation (MHE) as guided by DOD Instructions
* he never sought, nor intended to seek, the results of the consultation for use in any administrative or punitive proceeding
* MAJ Mxxxxxxxx's needs at the time exceeded his capabilities as her commander to teach, coach, mentor, or counsel
* the medical clinic at Sarasota Springs, one hour distant, was the closest facility where greater capability could be found
3.  The applicant provided:

* a statement of support from Major General (MG) Pxxxxxx, the Commanding General of the 1st Armored Division and Fort Bliss, TX
* ROI Number DIH 10-6080, with Exhibits A, B, F, G, and H
* a letter to the applicant from the Chief, Assistance Division, DAIG, dated  1 March 2011
* a letter of appeal from the applicant to the DAIG, dated 25 July 2011
* a letter to the applicant from the Supervisory Investigator, Whistleblower Reprisal Investigations, DAIG, dated 27 September 2011
* a letter from the Chief, Legal Assistance, 1st Armored Division and Fort Bliss, TX, to the Department of the Army Suitability Evaluation Board (DASEB), dated 23 April 2012
* an extract from "Protecting the Force: Lessons Learned from Fort Hood," containing the headings "Chapter 2 – Personnel Policies" and "Indicators that DOD Personnel May Become a Danger to Themselves or Others"

CONSIDERATION OF EVIDENCE:

1.  On 28 May 1994, the applicant was appointed as a Reserve commissioned officer of the Army.  He entered active duty, served in numerous staff and command assignments in the continental United States, overseas, and combat locations, and on 1 August 2009, he was promoted to the rank of Lieutenant Colonel (LTC).

2.  On 9 October 2009, he counseled one of his subordinates, MAJ Mxxxxxxxx, wherein, in the presence of a witness, he directed her to seek a mental health consultation.

3.  On 4 February 2010, MAJ Mxxxxxxxx met with a Judge Advocate General (JAG) officer to discuss her recently-received referred Officer Evaluation Report (OER).  During the course of their discussion, the topic of mental health was addressed, at which time the JAG officer informed MAJ Mxxxxxxxx that she may have an IG complaint.  

4.  Consequently, on 26 March 2010, MAJ Mxxxxxxxx contacted the U.S. Army Cadet Command (USACC) IG office and filed an official IG complaint against the applicant, contending she was improperly referred for a mental health evaluation. 

5.  On 5 August 2010, after an appropriate investigation, the USACC IG substantiated the complaint that the applicant improperly referred the complainant for a non-emergency mental health evaluation, in violation of Department of Defense Directive 6490.1 (Mental Health Evaluations of Members of the Armed Forces).

6.  On 1 March 2011, the DAIG informed the applicant that its office had completed its investigation and had substantiated the complaint against him for an alleged procedurally-improper mental health evaluation referral.  The DOD IG approved their Report of Investigative Inquiry (ROII).

7.  On 25 July 2011, the applicant appealed the DAIG's previously-substantiated findings.  In his request for appeal, he contended:

* the allegation that he improperly referred a subordinate for a mental health evaluation was substantiated in error
* despite the finding by the investigating officer that the mental health consultation was in fact the equivalent of a mental health evaluation, the facts do not support such a finding
* the essence of the mental health consultation was to provide the Soldier an opportunity to speak to a mental health professional before the stress from life events escalated to a point where she became a harm to herself or others
* the consultation was provided in the best interests of the Soldier, as a means to provide her help and counseling for the issues she was facing
* his intent was to provide the Soldier with a support system in a non-traditional Army environment when she displayed abnormal behavior signaling a need for professional assistance

8.  On 27 September 2011, the DOD IG answered his appeal request, informing the applicant that their review of his appeal confirmed their original determination and found his appeal did not warrant reopening the investigation or changing the finding.

9.  The applicant provides a 4-page letter of support (attached) from an individual who identifies herself as the Chief, Legal Assistance, 1st Armored Division and Fort Bliss, TX, wherein she contends:

* no mental health evaluation occurred
* a referral for consultation does not amount to a mental health evaluation
* discouraging mental health care is contrary to Army policy

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

 DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for the removal from IG records of the substantiated DAIG complaint, filed as ROI Number DIH 10-6080, was carefully considered. 

2.  Following a complaint filed against him, the applicant was investigated for improperly referring a subordinate for a mental health evaluation.  The IG Investigator substantiated the complaint against him, and he was notified in writing of that result.  He was afforded the opportunity to appeal the findings of the initial IG investigation, which he did, and an independent review was conducted in which the reviewer found no fault with the original conclusion.  

3.  The applicant contends his referral of the complainant for mental health consultation was never intended to be construed as a referral for a mental health evaluation, as guided by DOD Instructions.  He contends his actions were governed by his care for the complainant's physical and mental well-being, as well as the well-being of all Soldiers and civilians under his charge.

4.  The applicant presented these same contentions, and other, lengthier explanations of his actions, during the initial IG investigation.  Once the initial complaint was substantiated, he elected to appeal and his ROI was independently reviewed.  Again, he submitted arguments to support his appeal; however, an independent DOD IG reviewer confirmed the original determination and found his appeal did not warrant reopening the investigation nor changing the finding.

5.  For historical purposes, the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  There is a reluctance to recommend that those records be changed.  While it is understandable the applicant desires the removal of the substantiated IG complaint from his IG record, there is not a sufficiently compelling reason for compromising the integrity of the Army's records.  


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)                                         AR20110018542



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ABCMR Record of Proceedings (cont)                                         AR20120021937



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