BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140010390 


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 correction of the Department of the Army Inspector General's (DAIG) decision, dated 24 March 2014, to show the allegations were not substantiated in the IG Action Request System (IGARS).

2.  The applicant states:

	a.  The basis for his request is that it is erroneous and/or unjust to permit the allegations to remain as "substantiated" in IGARS.

	b.  This petition follows the DAIG review of allegations against him, which is a case from 2000.  In November 2013, over 13 years later, the DAIG sent him a letter while he was deployed.  The letter stated that a preponderance of the evidence supported a substantiation of allegations against him, but that a review of the file could not determine that he had been officially notified of the result.  In fact, he had never been notified of the result and this was the first time he had been advised that an IG investigation had ever been initiated.

	c.  While deployed, he submitted a request to the DAIG for records relating to his case or the investigation which apparently served as the basis for the DAIG investigation.  His request was denied in part and he was referred to the Fort Campbell Freedom of Information Act (FOIA) Office for a release determination.  The FOIA Office advised him that he would not receive an official response any earlier than 2 January 2014 and also denied the request in part and referred him to other organizations.  Those organizations did not respond before his 29 December 2013 deadline to respond to the DAIG.  As a result, he never received a complete copy of the materials that apparently served as the basis for the DAIG decision in 2000.

	d.  He requested reconsideration of the DAIG decision to substantiate those allegations in December 2013.  In March 2014, he received the DAIG's letter denying his request for reconsideration.

	e.  Multiple violations of Army Regulation 20-1 (IG Activities and Procedures) occurred during and after the IG investigation, making the IG's 24 March 2014 denial of his request for reconsideration erroneous.  He contends the IG failed to provide the required notification which violated his due-process rights, failed to conduct required independent fact-finding, failed to notify him of the results in a timely manner, and failed to obtain a legal review.

	f.  He started dating a Soldier in April 2000.  They discussed marriage at one point when she stated she was pregnant with his child, but she subsequently told him she had miscarried.  In July 2000, he decided to end their relationship.  Immediately following the break-up and in apparent retaliation for his decision to end the relationship, the female Soldier claimed she feared for her life and obtained a court-imposed emergency protection order (EPO) against him.  Subsequently, she accused him of violating the EPO and two male witnesses backed her story.  He unjustly spent 30 days in a detention center.  His company first sergeant testified on his behalf and his platoon sergeant provided a letter on his behalf.

	g.  He honestly and reasonably believed the female Solder was not married.

	h.  In her July 2000 sworn statement, the female Soldier stated she was deathly afraid of him and that he physically abused her 30 times during their 
90-day relationship.  These wild allegations are simply untrue.  He was in a military course from 20 April to 19 May 2000 and their relationship ended in 
mid-July 2000.  In recent email correspondence, she describes their relationship in glowing terms.  Common sense suggests that a physically-abused woman would not forget constant physical abuse.

	i.  At no point did he ever threaten the life of a witness.  It appears the witness he was accused of threatening was a subordinate in the company.  He was subsequently removed from the company by the chain of command for acts of indiscipline unrelated to the allegations against him.

	j.  The battalion commander had all the evidence at the time and determined that a local letter of reprimand was the appropriate response to the investigation's findings.

	k.  Due to his incarceration during the course of the August investigation, he believes the results were heavily biased based on falsified information provided by the female Soldier in question and her friends.  It appears the investigating officer never interviewed anyone who would have disputed the allegations brought against him.  Had he been notified by the IG regarding the investigation in 2000 and provided an opportunity to respond, he could have requested to have the IG interview many other witnesses in his defense who he cannot now locate.  The female Soldier continued to try and contact him throughout the years and never feared him like she stated during the investigation.  Email from the female Soldier shows she considered him to be a very good man who treated her with dignity and respect throughout the course of their short relationship.  This information undermines the statements written over 13 years ago and shows that permitting the substantiated determination to remain in IGARS would be unjust.

	l.  He faced these allegations 13 years ago, waived his rights, and made a statement addressing his former relationship with the female Soldier.  His commander considered the evidence against him and decided against taking any action under the Uniform Code of Military Justice.  His integrity has never been questioned before or after this time.

3.  The applicant provides 31 exhibits outlined on page 8 of his statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 May 1997.  He is currently serving on active duty in the rank of master sergeant.

2.  A DAIG report shows an anonymous complaint was made to that office in July 2000, alleging the applicant was having an adulterous relationship with a married woman and that he physically abused her.  An investigation was conducted.  The investigating officer found the following allegations were substantiated and recommended a summary court-martial:

* adultery
* simple assault
* sodomy
* obstruction of justice

3.  The DAIG report also shows the applicant was incarcerated in the county jail for violating an EPO.



4.  In November 2013, the DAIG notified the applicant by letter that:

	a.  the DAIG recently completed the review of a case in which he was named as a subject;

	b.  the preponderance of evidence supported a substantiation of the allegation against him.  However, the review could not determine that he was officially notified of the result; and

	c.  this correspondence serves that purpose.

5.  In December 2013, the applicant's defense counsel submitted a request to the DAIG to dismiss the allegations against the applicant or deem them to be not substantiated.  She based this recommendation on her legal review and analysis of the applicant's case, the failure of the IG to afford the applicant due process, the time-barred nature of the allegations against the applicant, and the prior consideration by his command with respect to this matter.

6.  Per the applicant's request for reconsideration, the DAIG completed a review of his case on 24 March 2014.  The DAIG denied his request for amendment and directed the allegations remain as substantiated in the IGARS.  The allegations that he committed adultery with a married female Soldier and committed an assault by grabbing a Soldier forcibly by the arms were substantiated.

7.  He provides numerous character reference statements from fellow Soldiers attesting to his good character and that he displayed the highest standard of professionalism and personal conduct throughout his military career and 12 years of marriage.

8.  Army Regulation 20-1 prescribes policy and procedures concerning the mission and duties of The Inspector General.  The IG records are protected documents that contain sensitive and confidential information and advice.  Army IG records are any written or recorded IG work-product created during the course of an IG assistance inquiry, inspection, investigative inquiry, or investigation.  An IG record includes, but is not limited to, correspondence or documents received from a witness or a person requesting assistance, IG reports, Inspector General Network (IGNET) data, or other computer automatic data processing files or data, to include IG notes and working papers.

	a.  An IG investigative inquiry is defined as an informal fact-finding examination into allegations, issues, or adverse conditions that are not significant in nature – as deemed by the command IG or 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 a Report of Investigation.

	b.  IGARS is a subsystem of IGNET that provides an automated means of recording, storing, and analyzing data pertaining to IG casework.

	c.  "Not substantiated" is defined as a conclusion drawn by an IG at the close of an investigative inquiry or investigation when the preponderance of credible evidence suggests that the subject or suspect did not do what was alleged in the allegation.

	d.  "Substantiated" is defined as a conclusion drawn by an IG at the close of an investigative inquiry or investigation when the preponderance of credible information suggests that the subject or suspect actually did what was alleged.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows an investigation was conducted in 2000 based on an anonymous complaint alleging the applicant was having an adulterous relationship with a married woman and that he physically abused her.  The investigating officer found the preponderance of evidence supported substantiation of the allegations against him.  As a result, the substantiated allegations are filed in IGARS.

2.  He contends the IG failed to:

* provide the required notification which violated his due-process rights
* conduct required independent fact-finding
* notify him of the results in a timely manner
* obtain a legal review

3.  He also contends that it is erroneous and/or unjust to permit the allegations to remain substantiated in IGARS.

4.  Although he contended the allegations are untrue, there is no evidence and he provided no evidence to show he did not know the female Soldier was married during their relationship or that she denied he physically assaulted her.

5.  The evidence of record does not support his contention that the first time he was advised that an IG investigation had been initiated was in November 2013.  In his application, he indicated the battalion commander had all the evidence at the time and determined a local letter of reprimand was the appropriate response to the investigation's findings.

6.  There is no evidence showing the investigation was erroneously conducted.  Without evidence to the contrary, it appears the investigating officer made a proper determination that allegations the applicant committed adultery and assault were substantiated.  Regrettably, there is an insufficient basis for granting the applicant’s request.

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 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)                                         AR20140010390



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ABCMR Record of Proceedings (cont)                                         AR20140010390



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