IN THE CASE OF:	  

		BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140003933 


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:

	a.  the substantiated allegations recorded in the Department of the Army Inspector General (DAIG) and the National Guard Bureau IG (NGB-IG) database systems be removed;

	b.  the Secretary of the Army (SA) letter removing him from the Fiscal Year 2011 (FY11) DA Colonel (COL) Promotion list be removed from his Official Military Personnel File (OMPF); and

	c.  he be reinstated as a COL in the Army National Guard (ARNG) as previously determined by the DA Selection Board and the ARNG Career Field Review (CFR) selection process.

2.  The applicant states his removal from the promotion list was based solely on one-sided, false information that had no merit.  The allegations against him were clearly discriminatory in nature and involved racial profiling, and were proven to be not thoroughly, impartially, or fairly investigated.  He was not afforded the opportunity to present evidence that would have disproved the allegation because the NGB-IG substantiated them without sending him a copy of the Army Regulation (AR)15-6 (Procedures for Investigation Officers and Boards of Officers) Report of Investigation (ROI).  He was never given his "due process" or the chance by NGB-IG or anyone in the NGB to rebut the allegations.  The DAIG determined the allegations considered by the NGB-IG to be "unsubstantiated" but substantiated a new allegation without investigation.  Without conducting a thorough investigation, NGB-IG and the DAIG reached erroneous conclusions.

3.  The applicant provides:

* Promotion Board Results
* letters from the NGB-IG and DAIG
* Freedom of Information Act (FOIA) requests and allied correspondence
* numerous FOIA-related emails
* letters, rebuttals, and results from the U.S. Army Human Resources Command (HRC)
* Legal Assistance Attorney letters
* NGB memorandums and allied documents

CONSIDERATION OF EVIDENCE:

1.  At the time of his request the applicant was a lieutenant colonel (LTC) serving in an Active Guard/Reserve (AGR) status with the Missouri Army National Guard (MOARNG).  His OMPF shows that he was retired due to permanent disability on 26 January 2015 in the pay grade and rank of LTC/O-5.

2.  A memorandum issued by the NGB-IG, Arlington, VA, dated 19 July 2010, shows the IG received complaints of alleged misconduct by the applicant while he was assigned as the Deputy G-6, Joint Forces Headquarters, MOARNG, with duty at the NGB, Arlington, VA.  The NGB-IG requested that the command initiate an AR 15-6 investigation/inquiry to address, at a minimum, the following:

	a.  Allegation 1: that the applicant improperly terminated Active Duty for Operational Support  (ADOS) orders in violation of AR 600-8-24 (Officer Transfers and Discharges); and

	b.  Allegation 2: that the applicant fostered a negative, unhealthy work environment and command climate resulting in Soldiers having experienced increased negative work behaviors, humiliation, and maltreatment in violation of AR 600-100 (Army Leadership).

3.  The applicant was considered and selected for promotion by the FY11 COL, Army Promotion List (APL), ARNG of the United States (ARNGUS) Promotion Selection Board which recessed on 27 July 2011.

4.  On 14 February 2012, the NGB-IG notified the applicant in a memorandum subject:  IG Final Subject Notification (Case Number NZ10-XXXX), that after conducting a thorough inquiry into the allegations, which included, in part, an AR 15-6 investigation conducted by the ARNG Chief of Staff (COS), it had been determined that both allegations against the applicant were substantiated.  The case was closed and the results would be maintained in the IG database for future official reference.  In addition, the applicant was given guidance on how to obtain a redacted copy of the ROI.

5.  On 3 July 2012, the applicant was notified that the DAIG reviewed Case Number NZ10-XXXX and noted the evidence did not support substantiation of the allegations.  Accordingly, the allegations were recorded in their database as not substantiated.  However, the DAIG also noted the evidence reflected that the applicant did not treat a subordinate with dignity and respect as required by all Army leaders.  Specifically, he routinely made dismissive, belittling, and insulting comments either to a subordinate or about the subordinate to other G-6 Soldiers.  A number of G-6 noncommissioned officers and officers corroborated the poor treatment that the applicant exhibited towards his subordinate.  Therefore, the allegation that he failed to treat a subordinate with dignity and respect in violation of AR 600-100 was substantiated.  As such, the DAIG had approved the two original allegations as not substantiated and the recording of the amended allegation that the applicant failed to treat the complainant with dignity and respect as substantiated in Division IG (DIG) Report Number 12-7XXXX, dated 28 June 2012.

6.  On 14 November 2012, the applicant appealed the decision to approve the substantiated findings.  He contended that he made several FOIA requests for the unredacted ROI; however, he was not provided witness statements, nor was he given copies of any statements made by the officer that made the allegation.  He categorically denied that he failed to treat any subordinate with dignity and respect.  He argued that the Investigating Officer's (IO) investigation into two other unsubstantiated allegations was assumed to provide enough information to support a substantiated finding as to this third allegation.  The approval of the fundamentally flawed investigation would have an adverse effect on his career, both in the near term and in the long run; therefore, he requested reversal of the approval of the adverse finding against him.  He provided numerous character references in support of his appeal.

7.  On 31 December 2012, the DAIG approved the recommendation that the allegations remain substantiated.  On 7 January 2013, the DAIG notified the applicant that after reviewing the documents provided by the applicant in his appeal they concluded that there was no new evidence to change the substantiated finding, stating that the character statements submitted by the applicant did not provide for a first-hand account of the event in question.  

8.  On 24 January 2013, the Chief of Promotions, U.S. Army Human Resources Command (HRC), informed the applicant of a delay of his promotion as the result of a post-board screening process of all COL level promotions wherein they received DAIG Report Number 12-7XXXX.  This report was referred to a General Officer Review Board and it was determined that this information warranted subsequent referral to a DA Promotion Review Board (PRB) which would recommend to the Secretary of the Army one or more of the following:

* retention on the promotion list
* removal of his name from the promotion list
* that he show cause for retention

9.  On 5 February 2013, the applicant, through his legal counsel, submitted a memorandum, Subject:  Denial of Due Process, DIG 12-7XXXX.  Counsel contended that the DAIG Legal Office reached this conclusion without the benefit of a fair, impartial, complete and thorough investigation into its new, substituted allegation and had failed to interview the applicant in reference to this new allegation.  Further, the applicant only received base reports that were missing statements supporting the conclusions and the referenced exhibits.  As a result, he was denied his chance to defend himself against a one-sided conclusion based upon only part of the information available.  Counsel asked that the report be removed from the PRB or that a truly fair, impartial, thorough investigation be conducted.

10.  On 25 April 2013, the applicant's counsel submitted evidence to the PRB contending that the DAIG report was incomplete and inaccurate and presented a distorted, negative picture of the applicant.  Counsel contended:

	a.  The applicant was not afforded due process and found himself in the position of having to prove the absence of conduct attributed to him almost three years after the events allegedly took place.

	b.  The DAIG file before the Board concluded the applicant "failed to treat a subordinate with dignity and respect."  However, the IO based her conclusions on limited information when she only spoke to some witnesses and not others.  The NGB-IG reviewed the IO's investigation and eventually determined that the allegations that the applicant (1) improperly terminated the subordinate's ADOS orders and (2) the applicant fostered a negative, unhealthy work environment and command climate were "substantiated."
	
	c.  The case was referred to the DAIG.  Upon review the DAIG determined that the evidence did not support the two findings that were substantiated by NGB-IG.  The DAIG Legal Office concurred and further concluded that the evidence presented in the NGB investigation established that the applicant failed to treat a subordinate with dignity and respect.

	d.  In making and substantiating a new finding, the DAIG assumed that it had all of the underlying facts necessary to arrive at its conclusion.  It did not.  It accepted as true and complete the findings of fact rendered by the AR 15-6 IO.  The applicant was never given the opportunity to timely provide input which would have tested the veracity, accuracy, and reliability of the witnesses interviewed by the IO and upon whom she relied in making her findings.  Despite his requests to the various agencies involved, the applicant still had not received the actual underlying witness statements upon which the conclusions were based.

	e.  Character references included with the rebuttal attest to the applicant's professionalism and his treatment of others in a reliably respectful, dignified, courteous way.  Some of the statements provided reasons to believe the information obtained by the IO may not have been completely reliable and that the IO did not conduct a thorough investigation.

11.  In his rebuttal to the PRB the applicant stated that the allegations that he routinely made dismissive, belittling and insulting comments either to the subordinate or about him/her to other Soldiers, and that he routinely called the subordinate a "dumbxxx" and referred to him as "lazy" or a failure for others in the staff area to hear were completely false.  This conclusion was untrue and unfounded.  At no time did he do anything but treat the subordinate with dignity and respect, consistent with his treatment of others.  He was never counseled or reprimanded by his leadership.  His record is absent of any administrative or disciplinary action which shows, contrary to the DAIG's conclusion, that he did not engage in any misconduct or violate any Army Regulation or customs.  He was selected for promotion to COL and a careful review of this matter would establish not only that the claims made against him were unjust, untrue, and unfounded, but also that there is nothing in his character or his past that would warrant removing him from the promotion list.

12.  On 30 October 2013, after reviewing the applicant's rebuttal and considering all matters available, the SA removed the applicant from the promotion list.  The SA's letter is currently filed in the restricted section of the applicant's OMPF.

13.  On 15 December 2013, his mandatory removal date (MRD) was corrected to 31 December 2013 from 6 November 2013, in order to allow him adequate time to out-process from the Title 10 program.

14.  In connection with the processing of this case, an advisory opinion was received from the Chief, Personnel Policy Division, NGB, dated 5 December 2014.  This office provided a detailed timeline of events relating to the applicant's selection for promotion to COL, the investigation of the allegations against the applicant, and his subsequent removal from the promotion list.  The official noted that the applicant does not have an endorsement by the Adjutant General of his State recommending promotion and being a DA select for promotion does not guarantee promotion.  All Title 10 AGR promotions must be approved by NGB leadership.  

15.  Applicant's counsel provided a response to the NGB advisory opinion stating:

* the Adjutant General endorsement is inherent in that the applicant was placed on the FY11 Promotion Board Selection List
* the applicant previously had received the approval of his State Adjutant General for promotion which was halted during the Federal Recognition phase
* the declination of the MOARNG to provide a recommendation on this matter is not surprising given the deep-seated racism infecting the MOARNG
* the NGB advisory opinion provided an insufficient and incomplete timeline of events as an attempt to gloss over and cloud the overwhelming injustices and prejudices against the applicant
* the applicant's due process rights were violated repeatedly and to date he has still not received a copy of the underlying AR 15-6 investigation leading to his ABCMR application

16.  The applicant provided:

	a.  Results of the FY11 LTC Career Field Review, dated 20 December 2010.

	b.  Numerous letters of support, one of which was written by a general officer.  This general officer stated that the allegation against the applicant was not credible.  He expressed serious concerns over whether the applicant was treated fairly and accorded basic due process in the matter before the PRB.  The allegation was completely out of character as there was never a report from any of his peers or subordinates of any treatment remotely resembling a lack of dignity or respect.  He would not deny him promotion to COL based on one allegation that is wholly inconsistent with his entire superior military record and inconsistent with the evidence of his overall treatment of others serving at the NGB during that period of time.  He should be promoted immediately.

	c.  Correspondence and emails related to his many FOIA requests.

	d.  His MyBoard File Notification email, dated 26 February 2014, adding him to the FY14 COL APL ARNGUS Board and his MyBoard File Notification email, dated the same day removing him as a candidate for promotion consideration.

17.  References.

	a.  NGB Memorandum, subject: Promotions for ARNG Title 10 AGR Officers, dated 20 December 2010, paragraph 2, states, "Being DA select for promotion does not guarantee promotion.  All Title 10 AGR promotions must be approved by NGB leadership."

	b.  ARNG and U.S. Army Reserve Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) states in paragraph 3-18 that commanders and Commander, HRC, Office of Promotions  will continuously review promotion lists to ensure that no officer is promoted who has become mentally, physically, morally, or professionally disqualified after being selected.  Commanders and the Commander, HRC, Chief, Office of Promotions (RC) may recommend officers for removal from the promotion list for any adverse documentation filed or being placed in the OMPF.

	c.  AR 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.

	d.  AR 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.

	e.  Title 10, U.S. Code, section 3961, provides the legal authority for the retired grade of Army personnel on the Retired List.  It states that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army who retires other than for physical disability retires in the regular or reserve grade that he or she holds on the date of his or her retirement.

	f.  AR 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Chapter 2, Section I, contains guidance on the establishment and functions of the ABCMR.  Paragraph 2-2 states, in pertinent part, that the ABCMR considers individual applications that are properly brought before it, and in appropriate cases, it directs or recommends correction of military records to remove an error or injustice.

	g.  Chapter 2, Section III, of the ABCMR regulation contains guidance on ABCMR actions.  Paragraph 2-9 contains guidance on the burden of proof and states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, that is, that what the Army did was correct.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for the removal of unjust "substantiated allegations" from the DAIG and NGB-IG database and reinstatement as a COL in the ARNG was carefully considered and found to lack merit.

2.  Following a complaint filed against him, the applicant was investigated for improperly terminating ADOS orders and for fostering a negative, unhealthy work environment and command climate resulting in Solders having experienced increased negative work behaviors, humiliation, and maltreatment.  The NGB-IG 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.  Subsequently, upon review of the NGB-IG ROI, the DAIG found that the original two complaints were not substantiated and approved the recording of an amended complaint that the applicant failed to treat a subordinate with dignity and respect as substantiated. 

4.  Again, the applicant, through his counsel, presented the same contentions, and other, lengthier explanations of his actions to support his appeal of the modified allegation.  The DAIG reviewer confirmed the original determination and found his appeal did not warrant reopening the investigation or changing the finding.  A review of the documents provided by the applicant clearly show that the AR 15-6 investigation and subsequent IG reviews were found to be legally sufficient in November 2011 and as such it appears that all requirements of law and regulation were met and his rights were protected throughout the investigative process.  His contention that he was not afforded due process is not supported by the evidence.

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.  

6.  At the time the ROI was placed in his OMPF, the applicant was awaiting promotion to COL and this information was forwarded to the PRB and subsequently to the SA for review.  On 30 October 2013 the SA directed that the applicant be removed from the FY11 COL ARNGUS, Army Promotion List effective the same day.  The applicant retired due to permanent disability in the pay grade of LTC on 26 January 2015.

7.  There is no evidence nor has he presented sufficient evidence to show that his removal from the COL Promotion List was in error or that an injustice occurred.  In the absence of evidence to the contrary, it is presumed that the removal of his name from the list was accomplished in accordance with applicable Army regulations and policies.  

8.  Based on the foregoing, his request should be denied.



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)                                         AR20140003933





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ABCMR Record of Proceedings (cont)                                         AR20140003933



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