BOARD DATE: 6 June 2015
DOCKET NUMBER: AR20150001565
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:
This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States District Court for the District of Columbia. The Court directs the ABCMR to reconsider the remanded claims based on the evidence the Plaintiff (hereinafter referred to as the "applicant") chooses to submit in support of her application.
a. In an attached Unopposed Motion for a Voluntary Remand to the Agency and Motion for Stay of Proceedings, counsel for the Defense (Secretary of the Army) requested that he be permitted to voluntarily remand the applicant's claims to the ABCMR, to allow the ABCMR to reconsider the issues raised in the applicant's application for correction, and stay proceedings until a determination is rendered by the ABCMR. Defense counsel states:
(1) The applicant is a Colonel (COL) and member of the United States Army who challenges the ABCMR's decision in its denial of her application for correction of her military records. She sought relief from the ABCMR in 2013, alleging the Army Inspector General (DAIG) improperly found that she violated the Military Whistleblower Protection Act (MWPA).
(2) The applicant was the Command IG (CIG) for the U.S. Army Reserve Command (USARC) when she was found to have violated the MWPA by reprising against a subordinate IG for a protected communication.
(3) In June 2013, the applicant submitted a 15-page memorandum to the ABCMR, in which she set forth her arguments for relief. On 22 October 2013, the Board denied her request for relief, finding that she provided insufficient evidence to support her contentions.
(4) In the course of compiling the Administrative Record for this matter, the ABCMR was unable to provide the even-numbered pages of the applicant's submission to the Board and only possessed a digital copy of the odd-numbered pages. The applicant was informed of this error; however, she was unable to provide a complete copy of her submission to the ABCMR.
(5) In order to ensure judicial economy, efficient use of resources, and a full and complete administrative record of the agency's decision, Defense counsel requests the case be voluntarily remanded to the ABCMR for reconsideration of this matter. Rather than certifying an incomplete record and attempting to address whether the ABCMR fully considered the contentions raised in her submission, the Defense seeks a voluntary remand of this matter to the ABCMR for a new and full review of her application and matters in support that she wishes to submit on remand.
b. The United States District Judge approved Defense counsel's Unopposed Motion for a Voluntary Remand to the Agency and Motion for Stay of Proceedings on 18 December 2014.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests, in effect, reconsideration of the previous ABCMR decision promulgated in Docket Number AR20130011464, dated 22 October 2013, wherein the applicant requested:
* correction of her military records by reversing the findings of the DAIG, wherein she was found to have violated the MWPA
* that all references to these findings be removed from her official military records, to include the substantiated allegation in the DAIG database
2. In a 17-page continuation of the applicant's DD Form 149 (Application for Correction of Military Record under the Provision of Title 10, U.S. Code, Section 1552), Counsel states the following:
a. The applicant is an active duty judge advocate with over 29 years of commissioned service. Her military record has been one of distinction and merit, which is demonstrated by the fact that she has been promoted to the rank of COL (O-6) and is reflected throughout her Officer Evaluation Reports (OER). From 30 April 2012 until February 2013, she served as the USARC CIG, where her performance throughout the entire rating period was rated as "outstanding" by her rating officials.
b. As the USARC CIG, she was a member of the USARC Commanding General's personal staff and was directly responsible for leading, mentoring, and training a directorate of 27 IG personnel and oversight of over 300 USAR IGs supporting over 45 Major Subordinate Commands (MSC). Assignment as the USARC CIG required the approval of 3 different lieutenant generals (LTG); specifically, the Commanding General of the United States Army Reserve (USAR) [Chief, Army Reserve (CAR)/Commanding General, USARC], The Judge Advocate General of the Army (TJAG), and The Inspector General of the Army (TIG).
c. As an IG, she was responsible for ensuring the rights of individuals and the protection of USAR interests as prescribed by law and regulation within the scope of governing IG regulatory protocols. As an IG, one of her core responsibilities was to protect "whistleblowers." On 19 February 2013, she was removed from her appointment as the USARC CIG on the basis of a DAIG substantiated finding that she committed a reprisal in violation of the MWPA (Title 10, U.S. Code, section 1034 (10 USC § 1034)).
d. As the USARC CIG, one of her responsibilities was to review and make decisions on tour of duty extensions for any of the 300 IG personnel assigned throughout the USARC. Only three months into her three-year tenure, she made a decision to reverse her prior approval of Lieutenant Colonel (LTC) F's request to serve a 5th year as an IG, a second extension of his normal tour length of 3 years.
e. Pursuant to Army Regulation 20-1 (IG Activities and Procedures), the USARC CIG may approve an additional year for an IG assigned to the USARC. To serve a second additional (5th) year, TIG's approval is required. Requests for a 5th year (that is, a second extension) require the USARC CIG's favorable endorsement for approval before being forwarded to TIG for final approval. If the USARC CIG does not support the extension, the request is effectively denied and should not be forwarded to DAIG for consideration. The applicant's authority to recommend or not recommend an extension was discretionary, as the governing Army Regulation is silent on the criteria that should be applied as a matter of discretion to consider a request for tour of duty extension. In the absence of specific guidance on how discretion should be applied, the applicant applied "best-interest-of-the-Army" criteria.
f. LTC F made his extension request on 13 February 2012, prior to the applicant's assumption of duties as the USARC CIG on 30 April 2012. The applicant initially recommended approval of his request on 10 June 2012; however, on 17 July 2012, she became aware of issues reflecting poorly on LTC F's abilities to serve as an IG, based upon credible reports from her senior enlisted leader, Sergeant Major (SGM) J, that LTC F was perceived as employing "bullying" tactics by some key IG personnel, receiving from SGM J an email authored by LTC F and other documents that strongly suggested to her that LTC F lacked the objectivity the Army expects of its IGs.
g. SGM J made a command visit to the 311th Expeditionary Sustainment Command (ESC) in Los Angeles, CA. Upon returning from that site visit on 17 July 2012, SGM J provided an oral report to the applicant concerning problems she observed at the 311th ESC, including specific problems with the performance of a subordinate IG, LTC F, who had accused a member of the 311th ESC Office of the Staff Judge Advocate (SJA), CPT C, of inability to perform his duties, an accusation that lead to a formal credibility determination.
h. During her trip, SGM J met with both SGM F of the 311 ESC and with CPT C. According to SGM J, the conversation she had with both SGM F and CPT C concerning LTC F led her to believe that LTC F's behavior needed to be brought to the applicant's attention as it was not conducive to a positive work environment. Additionally, SGM J provided to the applicant CPT C's responses to LTC F's accusations, which she also received directly from CPT C. The accusations by LTC F against CPT C were thoroughly investigated and following the investigation, the appointing authority concluded that there was no credible evidence to support allegations that CPT C committed professional misconduct.
i. On or about 25 July 2012, CPT C filed a formal IG complaint with the applicant. The gravamen of the IG complaint was that LTC F was threatening CPT C and his superiors, practicing law without a license, and improperly attempting to interfere with the advice CPT C was providing to his commander on legal matters outside of the purview of the IG.
j. After reviewing the report from her senior enlisted leader, CPT C's memo addressing the allegations against him, and the IG complaint filed by CPT C, the applicant discussed LTC F' s conduct as an IG with staff members of the 311th ESC Office of the SJA, and by email with LTC SF, the 311th ESC SJA. In those discussions, LTC SF explained that LTC F was acting in an irresponsible, unprofessional, and disruptive fashion; was "far outside the IG lane" on a number of matters; and that his conduct suggested he was practicing law without a license. The applicant also contacted her technical supervisor, the U.S. Army Forces Command (FORSCOM) IG, showed him LTC F's email and discussed with him the facts related to her by her SGM and in CPT C's IG complaint. After discussing the facts, the FORSCOM IG concurred that he would not approve a 5th year extension as an IG for LTC F, based upon a totality of the circumstances.
k. Based upon the totality of the evidence she received, the applicant withdrew her recommendation for LTC F's extension because, applying her "best-interest-of-the-Army" criteria, she had lost confidence in LTC F's ability to be perceived as fair and impartial as well as actually acting fairly and impartially as an IG. In August 2012, she communicated to DAIG her reversal of her decision and disapproval of LTC F's 5th year extension, which had the effect of disapproving the extension.
l. The email that was of concern to the applicant was authored by LTC F to COL JS on 6 June 2012. Both were staff officers at the 79th Sustainment Support Command (SSC); COL JS was the SJA and LTC F was a military policeman detailed as the command's IG. The email was requested by COL JS to officially document LTC F's prior oral complaints of alleged mishandling of legal matters by CPT C, assigned to 311th ESC, a command subordinate to the 79th SSC. Pursuant to Army Regulation 20-1, an IG such as LTC F is required to refer all allegations involving professional misconduct by an Army lawyer (military or civilian) through TIG's legal advisor to the senior counsel having jurisdiction over the subject lawyer for disposition. LTC F did not follow this mandatory procedure and instead submitted his complaint to the SJA on his own staff. The applicant was provided the email by SGM J after SGM J's return from a visit to the 311th ESC, and later was provided the same email by CPT C when he submitted a separate IG complaint against LTC F on 26 July 2012.
m. CPT C reported that LTC F's inaccurate statements about CPT C had caused CPT C's credentials as an attorney to be questioned. The email prepared by LTC F made five vague allegations against CPT C:
(1) CPT C did not appreciate the type of evidence necessary, or the level of proof required, to justify an administrative separation or the imposition of nonjudicial punishment against a sergeant accused of committing adultery.
(2) CPT C's legal review of an IG investigative report was sloppy and incorrectly claimed that some allegations did not require investigation.
(3) CPT C did not pay enough attention to detail in reviewing a report pertaining to an Equal Opportunity case (LTC F did not list specific failures, but concluded generally that the report sent to the decision maker for signature was incomplete).
(4) CPT C was late in reviewing and redacting documents sought pursuant to the Freedom of Information Act (FOIA).
(5) CPT C's demeanor was unprofessional based on one email and because he withdrew from a conference call without his higher headquarters' permission.
n. As a result of LTC F's email, a professional responsibility inquiry was initiated, which ultimately cleared CPT C of any professional responsibility violations. In her IG testimony, the applicant expressed concern about the tone of the email, the air of superiority it expressed and over-confident expression regarding LTC F's claimed knowledge of military law, and based on the best interests of the Army, decided that she should reconsider the wisdom of her earlier support for a second extension to allow LTC F to serve as an IG for a 5th consecutive year. She also informed the IG investigators of the other evidence she collected on that issue, including CPT C's detailed IG complaint, reports from the 311th ESC SJA office, and her discussions with her technical supervisor, the FORSCOM IG.
o. The applicant concluded, as a matter of her discretion, that LTC F's actions imperiled the ability of the 79th SSC IG office to be viewed as fair and impartial. At the time the applicant received and reviewed LTC F's email, she had only been serving as the CIG for approximately three months. She consulted with her technical supervisor, the FORSCOM IG, and showed him a copy of the email. After reviewing the email, the FORSCOM IG stated that he concurred and would not have supported a 5th year extension for LTC F.
Considering the totality of the circumstances, the applicant withdrew her support for the extension of tour of duty length for LTC F because she believed it was in the best interest of the Army that LTC F return to service in his basic branch, Military Police.
p. In response to this decision, LTC F filed a MWPA complaint of reprisal against the applicant, which also generated a professional responsibility investigation. The applicant cooperated fully in both investigations. DAIG substantiated the whistleblower reprisal complaint; however, in doing so they denied the applicant the opportunity to review the actual allegation against her, be provided a list of witnesses interviewed, and access to any documents compiled during the investigation, including a copy of her own sworn testimony. A professional responsibility investigation generated by the whistleblower complaint resulted in a finding of no attorney misconduct. According to the DAIG letter provided to the applicant, the DAIG concluded she disapproved LTC F's extension request because LTC F "questioned an attorney." The DAIG's redacted report states, "from direct testimony and her actions, COL [Applicant's] motive was loyalty to her branch." The applicant appealed the DAIG's findings to the Department of Defense IG (DOD-IG); however, by letter dated 26 March 2012, the DOD-IG denied her appeal.
q. The DAIG committed fundamental prejudicial legal error in its application of the law and regulation governing whistleblower reprisal allegations. According to the IG, assessment of a whistleblower reprisal complaint requires answering four questions:
(1) Question 1: Was there a protected communication made or prepared that was protected by 10 USC § 1034?
(2) Question 2: Was there an unfavorable personnel action taken after the protected communication was made?
(3) Question 3: Did the responsible management official know about the protected communication?
(4) Question 4: Does the evidence establish that the unfavorable personnel action would have been taken if the protected communication had not been made?
r. The DAIG erred as a matter of law and regulation when it concluded that LTC F's email was a protected communication. In order to be a protected communication, the communication must be directed to a person or organization in the chain of command or other person designated by regulation to receive a protected communication. In the particular case of an IG making a complaint against a judge advocate, Army Regulation 20-1 is the regulation that governs who is empowered to receive such a communication. In accordance with Army Regulation 20-1, an IG such as LTC F is required to refer any allegations involving professional misconduct by an Army lawyer (military or civilian) through TIG's legal advisor to the senior counsel having jurisdiction over the subject lawyer for disposition (in this case, the USARC SJA). LTC F failed to comply with this mandatory provision of regulation. Even if the communication by LTC F could be considered a protected communication, it was not submitted or delivered to the authority required according to the regulation governing such reports by IGs concerning attorney misconduct, was not received by TIG's legal advisor, and the violation of specific regulatory procedure alone by an IG, would have been a valid reason for the applicant to reconsider her discretionary approval of a 5th year of IG service for LTC F, due to his inability or unwillingness to comply with regulation having the force and effect of law.
s. More importantly, the email did not qualify as a "protected communication" as that term is defined in statute and regulation.
(1) The email was not directed to an IG or a member of Congress, so DOD Directive 7050.06 (Military Whistleblower Protection) did not apply.
(2) The email did not report a violation of law or regulation, gross mismanagement, gross waste of funds or other resources, an abuse of authority, or a substantial and specific danger to public health or safety, which excludes it from the bounds of DOD Directive 7050.06.
(3) Simply stated, no one involved in the IG investigation of alleged reprisal appears to have read the definition of "protected communication" provided by statute and regulation to compare it to what was actually communicated in the substance of the email concerning CPT C.
t. LTC F's email identified 5 issues with CPT TC, and a review of those allegations against the standard set forth in law and regulation demonstrates his email did not qualify as a "protected communication."
(1) CPT C did not appreciate the type of evidence necessary, or the level of proof required, to justify an administrative separation or imposition of non-judicial punishment against a sergeant accused of committing adultery.
This is not a violation of law or regulation; it is not gross mismanagement; it is not a gross waste of funds or other resources; it is not an abuse of authority and it is not a substantial and specific danger to public health or safety. At best, it is lack of competence to perform legal duties, which does not qualify as a protected communication.
(2) CPT C's legal review of an IG investigative report was sloppy and incorrectly claimed that some allegations did not require investigation.
This is not a violation of law or regulation; it is not gross mismanagement; it is not a gross waste of funds or other resources; it is not an abuse of authority and it is not a substantial and specific danger to public health or safety. At best, it demonstrates a sloppy and incorrect application of legal judgment, which does not qualify as a protected communication under the statute.
(3) CPT C did not pay enough attention to detail in reviewing a report pertaining to an Equal Opportunity case.
This is does not describe a violation of law or regulation; it is not gross mismanagement; it is not a gross waste of funds or other resources; it is not an abuse of authority and it is not a substantial and specific danger to public health or safety. At best, it demonstrates a negligent inattention to detail that does not qualify as the subject matter of a protected communication.
(4) CPT C was late in reviewing and redacting documents sought pursuant to the FOIA.
This is not a violation of law or regulation as FOIA processing goals, are just that - goals; it is not gross mismanagement; it is not a gross waste of funds or other resources; it is not an abuse of authority and it is not a substantial and specific danger to public health or safety. At best, it demonstrates a less than optimal dedication to the job with is not a proper subject matter for a protected communication.
(5) CPT C's demeanor was unprofessional based on one email, and because he withdrew from a conference call without his higher headquarters' permission.
This is not a violation of law or regulation; it is not gross mismanagement; it is not a gross waste of funds or other resources; it is not an abuse of authority and it is not a substantial and specific danger to public health or safety. At best, as described, it is indicative of rude behavior not a proper subject matter of a protected communication.
u. The DAIG was not at liberty to ignore the requirements of the law in assessing whether the email contained subjects entitled to protected communication status, inasmuch as the email reported no violations of law or regulation, no gross mismanagement, no gross waste of funds or other resources, no abuse of authority, nor a substantial and specific danger to public health or safety. Indeed, the IG characterizes the communication as one where complainant merely was "voicing concerns to a supervisory chain of perceived incorrect legal opinions." The IG appears to have simply assumed that a communication "voicing concerns over perceived incorrect legal opinions" not amounting to the governing statutory criteria was protected without application of the statutory standards to the substance of the communication.
v. Even if the email contained a report of violation of law or regulation, of gross mismanagement, of a gross waste of funds or other resources, an abuse of authority, or a substantial and specific danger to public health or safety, which it did not, the report was not made to the "chain of command" as is required by law and statute. The statute and regulation make clear that for purposes of the MWPA, the definition of "chain of command" includes "not only the succession of commanding officers from a superior to a subordinate through which command is exercised, but also the succession of officers, enlisted members or civilian personnel through whom administrative control is exercised, including supervision and rating of performance." The evidence is clear and unequivocal that LTC F did not send his email to his supervisor or his rater of his performance rather, he sent it to a peer on the staff to which he had been detailed, the SJA, an officer who neither supervised nor rated him and who, pursuant to Army Regulation 20-1, was not a proper recipient of a complaint by an IG about a judge advocate.
w. The definition of "chain of command" was drafted by Congress such that it required a report to a commander, supervisor or rater. And, importantly, for the specific circumstances in this case - an IG making a reporting of a judge advocate's alleged deficiencies - there is a specific procedure set forth in regulation that the author of the document failed to follow. Accordingly, and for the above reasons, the DAIG erred as a matter of law in concluding that the email constituted a protected communication.
x. It is clear the applicant knew of the communication and that an unfavorable personnel action was taken after the communication was made. However, those questions do not end the inquiry. The "acid test" for examination of an alleged retaliation for protected communication, assuming there was a protected communication under the statutory subject matter definitions, resides in the answer to Question 4:
Does the evidence establish that the unfavorable personnel action would have been taken if the protected communication had not been made?
In this case, the IG misstated evidence and made key redactions that hid substantive information that, in addition to the LTC F email, provided ample justification for the applicant's decision to revoke her approval of LTC F's 5th year extension.
(1) The IG virtually ignores the information provided to the applicant by her SGM describing "bullying" tactics by LTC F and complaints across the 311th ESC staff about him.
(2) The IG failed to address the fact that the 311th SJA staff addressed concerns with the applicant about LTC F's demeanor and conduct prior to her decision to revoke her approval of LTC F's extension request.
(3) At page 17 of the redacted IG report, the IG pointedly redacted from its report that on 25 July 2012, well before her decision to revoke her recommendation of an extension for LTC F, the applicant received a detailed, factual IG complaint from CPT C detailing alleged specific acts of misconduct by LTC F. Additionally, the applicant was provided a copy of the matters submitted by CPT C in response to the professional responsibility inquiry. Although CPT C's IG report was made a week prior to the applicant's decision, the IG failed to include CPT C's documentary evidence - which had been received and reviewed by the applicant as part of her decision-making process as a part of its investigation.
(4) The IG redacted from the report substantial favorable evidence supporting the applicant; specifically, her consultation with the FORSCOM IG, whose advice and counsel she sought prior to taking her action. Based on the information provided by the applicant, her technical supervisor concurred with her judgment that an extension should not be approved. This evidence supporting the applicant and corroborating her statement that she would have made the same decision absent the email was deliberately redacted because it was contrary to the conclusion the IG sought to reach. The IG asserts the applicant's motive for an adverse personnel action against LTC F was because LTC F "should not have questioned the legal opinions of an attorney." The evidence that the applicant had was far more than what was represented by the IG substantial information that LTC F's demeanor, conduct and apparent bias, was a detriment to the IG mission, he was not "playing well with others," and he lacked the objectivity and demeanor that was expected of an IG.
y. The applicant's decision was concurred with by her technical superior prior to making the decision and did not rely solely on the protected communication. Indeed, the other information relied upon, particularly the detailed information provided by her SGM, LTC SF and his staff, and CPT C was far more damaging to LTC F's circumstance than just his email to COL JS and, independently of the email, amply supported her decision to withdraw her recommendation for a 5th year extension for LTC F. Importantly, as a result of the Whistleblower Reprisal complaint, a professional responsibility investigation was initiated against the applicant for violation of law and regulation.
z. The results of that investigation concluded the applicant had not engaged in misconduct. While Army Regulation 20-1 mandates that appropriate disciplinary or administrative action be taken against an officer found to have engaged in a Whistleblower Reprisal, the applicant suffered no adverse legal or administrative consequences from her commander. Indeed, her OER covering the period of the IG investigation was entirely superior and her Rater made no mention of the investigation. Finally, both statute and regulation require that remedial action be taken on behalf of the Complainant in the event an adverse personnel action is alleged to have been taken as a result of a protected communication, the applicant's denial of a 5th year extension for LTC F was not reversed, demonstrating the fact that the applicant's concerns over the propriety of LTC F continuing as an IG, as reflected in CPT C's IG Complaint, and corroborated by other military personnel, were well-founded.
3. Counsel provides the following documents in support of the applicant's request:
a. Enclosure 1
(1) memorandum from the Commanding General, USARC to TJAG, dated 31 January 2012, subject: Gaining Commander's Statement Selection of a Judge Advocate Officer for a non-JAGC Assignment;
(2) memorandum from the Operations Officer, Operations and Plans Division, Officer Personnel Management Directorate, U.S. Army Human Resources Command (HRC) to TIG, dated 4 February 2012, subject: Nomination for USAR Active Guard Reserve (AGR) Inspector General Tour COL [Applicant], XXX-XX-1021;
(3) DA Form 4187 (Personnel Action), dated 3 February 2012;
(4) DA Photograph;
(5) extract of an Army authorization document detailing a portion of the USARC's authorized positions, dated 20 October 2011;
(6) DA Form 705 (Army Physical Fitness Test Scorecard), dated 28 January 2012;
(7) spreadsheet of unknown origin, titled "Evaluation Review Sheet";
(8) 12 successive DA Forms 67-9 (OER), covering the overall period 25 May 2001 through 16 May 2011;
(9) DA Form 4037-E (Officer Record Brief (ORB)), dated 30 January 2012;
(10) memorandum from TJAG to the Commanding General, USARC, dated 2 March 2012, subject: Request for Out-of-Branch Assignment COL [Applicant]; and
(11) memorandum from the Chief, Operations & Support Division, Office of TIG to the Commanding General, USARC, dated 9 March 2012, subject: IG Detail.
b. Enclosure 2 OER, covering the period 2 April 2012 through 1 April 2013.
c. Enclosure 3 Declaration of COL [Applicant], Judge Advocate, U.S. Army.
d. Enclosure 4 memorandum for record (MFR) from SGM J, dated 27 July 2012, subject: Trip Report IG Office Site Visit/311th ESC, Los Angeles, California.
e. Enclosure 5 memorandum from SGM J to the ABCMR, dated 10 May 2013, subject: Letter of Support for COL [Applicant].
f. Enclosure 6 MFR from CPT C, dated 30 April 2013, subject: Detrimental Conduct of LTC F.
g. Enclosure 7 MFR from COL JS, dated 13 October 2012, subject: Decision Concerning Alleged Professional Misconduct: CPT C.
h. Enclosure 8 memorandum from COL JS to Major (MAJ) H, Office of the SJA, 364th Sustainment Command (Expeditionary), dated 21 June 2012, subject: Appointment to Conduct Credibility Determination/Preliminary Screening Inquiry CPT C.
i. Enclosure 9 memorandum from CPT C to the applicant, dated 25 July 2012, subject: Statement in Support of Request for IG Action (IGAR) (DA Form 1559 (IG Action Request )).
j. Enclosure 10 MFR from LTC SF, dated 29 April 2013, subject: Letter of Support for COL [Applicant].
k. Enclosure 11 email from LTC F to COL JS, dated 6 June 2012.
l. Enclosure 12 memorandum from LTC S, Acting SJA to the applicant, dated 1 July 2013, subject: Disposition of Allegations of Professional Misconduct.
m. Enclosure 13 redacted DAIG Report of Investigative Summary.
n. Enclosure 14 a memorandum from CPT C to MAJ H, Office of the SJA, 364th Sustainment Command (Expeditionary), dated 24 July 2012, subject: Response to Credibility Determination Inquiry.
CONSIDERATION OF EVIDENCE:
1. The applicant currently serves on active duty in the USAR AGR Program; however, effective 31 May 2015, she will have retired by reason of sufficient service for retirement with placement on the Retired List in the rank of COL the following day.
2. The applicant was initially appointed as a Reserve commissioned officer of the Army on 3 May 1985. She was subsequently appointed as a CPT in the JAG Corps on 26 April 1996; entered active duty in the USAR AGR Program on 15 September 1996; served in numerous stateside, overseas, and combat assignments of increased responsibility; and was promoted to COL on 8 December 2008.
3. She was released from assignment to Headquarters, XVIII Airborne Corps (Mission Support), Fort Bragg, North Carolina and reassigned to Headquarters, USARC, Fort Bragg, North Carolina as the CIG, effective 30 April 2012. As the USARC CIG, her responsibilities included, in part, the oversight of over 300 USAR IGs supporting over 45 MSCs.
4. Shortly after beginning her tenure as the USARC CIG, she reviewed and favorably endorsed the request for a 5th year extension of a subordinate IG, LTC F, on 10 June 2012.
5. Subsequent to her initial favorable endorsement of LTC F's 5th year extension request, she became aware of issues between LTC F, acting in his capacity as the 79th SSC IG, and CPT C, a judge advocate of the 311th ESC Office of the SJA.
a. On or about 17 July 2012, upon her senior enlisted advisor's (SGM J) return from a staff assistance visit to the 311th ESC, she was briefed by the SGM on problems observed at the 311th ESC, including specific problems with the performance of a subordinate IG, LTC F, who had accused a judge advocate of the 311th Office of the SJA, CPT C, of inability to perform his duties, leading to a formal credibility determination.
b. Members of the 311th ESC Office of the SJA discussed with SGM J elements of LTC F's behavior that ultimately SGM J determined should be brought to the applicant's attention as it was not conducive to a positive work environment.
c. SGM J provided the applicant with a copy of an email message LTC F drafted and sent to COL JS on 6 June 2012. The email was requested by COL JS to officially document LTC F's prior oral complaints of alleged mishandling of legal matters by CPT C, assigned to 311th ESC, a command subordinate to the 79th SSC. The complaints by LTC F led to a formal credibility determination.
d. SGM J provided to the applicant CPT C's responses to LTC F's accusations, which the applicant had also received directly from CPT C. The accusations by LTC F were thoroughly investigated, and following investigation, the appointing authority concluded that there was "no credible evidence to support allegations that CPT C had committed professional misconduct."
e. CPT C filed a formal IG complaint with the applicant on or about 25 July 2012. The gravamen of the IG complaint was that LTC F was threatening CPT C and his superiors, practicing law without a license, and improperly attempting to interfere with the advice CPT C was providing to his commander on legal matters outside of the purview of the IG.
f. After the report from her senior enlisted leader, a review of CPT C's memo addressing the allegations against him, and the IG complaint filed by CPT C, the applicant discussed LTC F's conduct as an IG with members of the staff of the 311th ESC Office of the SJA and by email with LTC SF, the 311th ESC SJA. Additionally, she discussed these issues and LTC F's email with her technical supervisor, the FORSCOM IG.
6. She rescinded her favorable endorsement of LTC F's 5th year extension on or about 1 August 2012, which ultimately stopped the process and denied LTC F's request.
7. In response to her actions, LTC F filed a MWPA complaint of reprisal against the applicant, which also generated a professional responsibility investigation.
8. The applicant is the subject of a Report of Investigative Inquiry (ROII) pertaining to a DAIG investigation concerning the following two allegations:
a. She improperly denied a subordinate IG his request for an IG duty extension and deployment in reprisal for making a protected communication in violation of DOD Directive 7050.06.
b. She denied a subordinate IG an opportunity to compete for a position at The Inspector General School (TIGS) in reprisal for making a protected communication in violation of DOD Directive 7050.06.
9. The redacted ROII provides the following dates and background information:
a. On 8 February 2012, an individual [name redacted] submitted a request for extension for an additional 12 months as a detailed IG, as a prerequisite for deployment as an IG with the 800th MP Brigade of the USAR. The duty extension was to fill an IG Worldwide Individual Augmentation System (WIAS) tasker for deployment to Qatar.
b. An officer within the 79th SSC [name redacted] was tasked with reviewing case documentation for IG, Equal Opportunity (EO), and SJA cases. The 79th SSC IG Office believed certain IG cases had legal reviews that were not done to standard; these legal reviews were written by a judge advocate from the 311th ESC. The quality of legal reviews was found to be a systemic problem over time (November 2011 through June 2012) and despite addressing the issue with the judge advocate who authored the suspect legal reviews, there was no correction to procedure. Accordingly, an unspecified individual [name redacted] communicated his concerns in an email on 6 June 2012.
c. On 10 June 2012, the applicant signed a memorandum recommending approval of the individual's extension request, commenting that his performance of duty was remarkable and a 5th year extension would allow the retention of a highly skilled IG who would greatly contribute to mission success by providing quality IG support and leadership in a deployed environment.
d. On 15 June 2012, the extension packet was emailed to the DAIG Operations and Support Division for TIG approval/disapproval.
e. On 21 June 2012, an officer [name redacted] was appointed to conduct a credibility determination/preliminary screening inquiry pertaining to a JAG Corps officer.
f. The applicant testified she first became aware of the subject email on
16 July 2012.
g. On 25 July 2012, an unspecified individual [name redacted] filed an IG complaint with the applicant.
h. On 25 July 2012, the applicant sent an email to DAIG Operations and Support requesting that the individual's extension request be pulled. On 30 July 2012, the applicant sent another email reversing her request and to keep her original recommendation. The applicant testified she did not recall sending the second email requesting to continue the extension processing with a favorable recommendation.
i. On 1 August 2012, the applicant signed a memorandum disapproving the individual's extension request. She wrote, "Although [individual's] performance as a detailed IG for the 79th SSC has been solid, I believe it is time for this officer to return back to his branch for another branch assignment."
j. On 2 August 2012, the applicant sent an email to DAIG Operations and Support requesting to know whether the requested extension packet would stop at her desk if she recommended disapproval. She received confirmation that same day advising her that if she recommended disapproval, the packet would not be forwarded to TIG, effectively delegating the disapproval authority to her level.
k. On 2 August 2012, the applicant testified she called the individual to inform him that she was disapproving his extension and deployment. She also stated, "I've had it (the email) on my desk have been looking at it every day and I've been trying to figure out how to deal with you." "You were out of line - what were you thinking? Initiating an inquiry into a JAG officer is a serious thing. Do you realize what you did?"
l. After reviewing the subject email, an unspecified individual [name redacted] opined on 3 August 2012 that the subject email did not violate any policy, and "expressing your concerns about your legal support to the command SJA does not violate Army Regulation 20-1."
m. On 3 August 2012, the applicant sent an email to HRC, informing certain individuals [names redacted] that the individual's 5th year extension was denied.
n. On 5 August 2012, an individual [name redacted] sent an inquiry to the DAIG Whistleblower Investigations Oversight Branch seeking guidance and provided input on the situation.
o. On 14 August 2012, an unspecified office of the USARC [name redacted] solicited the field requesting nominations for an instructor position at TIGS. On 20 August 2012, an unspecified individual [name redacted] responded and indicated his interest in the position.
p. The suspense for the TIGS instructor candidates was 24 August 2012. DAIG informed the applicant there was no requirement for USARC to fill the instructor position. No names were forwarded to the DAIG because USARC was not required to provide nominations.
q. On 27 August 2012, the 79th SSC CIG emailed the applicant inquiring about the status of the individual's extension. The applicant informed the CIG that her email response served as the final notification of the extension and deployment disapproval.
r. On 30 August 2012, an unspecified individual [name redacted] spoke with the Operations office, USARC, requesting a status on an individual's extension [name redacted]. Based on being told of the disapproval, HRC pulled an individual's name [name redacted] from the tasking and began working on his next assignment.
s. On 4 September 2012, DAIG Whistleblower Investigations Oversight Branch (WIOB) received an unspecified individual's [name redacted] reprisal complaint. A preliminary inquiry review sheet was completed and the case was referred to the FORSCOM IG office on 11 October 2012, noting that the complainant's allegations were against the USARC CIG.
t. On 13 October 2012, the credibility determination inquiry findings for an unspecified individual [name redacted] were adopted. The unspecified individual [name redacted] was found to not have committed any professional misconduct.
u. On 25 October 2012, the case was referred back to DAIG due to a conflict of interest at FORSCOM.
10. The redacted ROII identifies the 6 June 2012 email as a protected communication. It further identifies the applicant's denial of the individual's 5th year IG extension and deployment request, as well as the denied opportunity for the individual to compete for a TIGS instructor position, as the specific acts of reprisal taken against the author of the protected communication.
11. The ROII provides an analysis of the evidence, including the applicant's additional statement with three enclosures relating to the MWPA complaint against her.
a. The applicant contended the allegation that she had improperly denied a request for extension could not be substantiated because, in her opinion, the individual's email was not a protected communication. The analysis of this statement showed that she had incorrectly argued that the email was not a protected communication because it was sent using an official signature block with official email addresses, and done in an official capacity, not in a personal capacity. DOD Directive 7050.06 and 10 U.S.C. § 1034 define protected communication as a communication in which a member of the Armed Forces communicates information that a member reasonably believes evidences a violation of law or regulation. The method or source of the communication does not determine whether it is, or is not, a protected communication.
b. The applicant contended the individual had colluded with the 79th SSC SJA to undermine and harm a junior officer. She concluded that the professional conduct inquiry was a scheme hatched by the individual and the 79th SSC SJA and that there was no justification for such action because the nature of the complaints were against an attorney's legal opinion. The analysis showed that the individual had brought the matters to the attention of the 79th SSC SJA because his previous raising of these issues directly with the JAG officer and his supervisor did not resolve anything and the issues continued. Before the 79th SJA directed the credibility determination inquiry, he had consulted with OTJAG, Office of Professional Responsibility, and the SJA Office, USARC. Those offices opined that there was enough evidence from the email sent by the individual to proceed with a credibility determination on the JAG officer.
c. The applicant had stated she did not deny any personnel action related to the individual, but had only recommended he not be extended to deploy.
d. The applicant's statement indicated the reasons she withdrew her favorable recommendation were conduct, policy, and law. She believed the individual's conduct jeopardized the 79th SSC IG office's ability to be viewed as fair and impartial and she was disturbed by his tone of sarcasm and assuredness that he was correct regarding legal matters. The analysis showed that while she had cited regulatory guidance indicating IGs normally would not serve consecutive or repetitive tours, she had supported the complainant's request prior to seeing the protected communication. Finally, the applicant had asserted that the individual had practiced law without a license by voicing concerns about the JAG officer's legal opinions.
12. The ROII included the following testimony:
a. The email sent by the individual detailed systemic issues the individual's office had with the 311th ESC Judge Advocate. The issues had been addressed directly with the JAG officer and his supervisor, but a number of issues were still continuing.
b. The applicant testified she received a hard copy of the individual's email on 16 July 2012 from the USARC IG SGM after the SGM returned from a site visit. The SGM received the email directly from the JAG officer who was the subject of the email. The applicant further testified she had asked the 79th SSC SJA if there was a rogue IG, referring to the individual who sent the email. She further testified that in response to her questions to the 79th SSC she was told that the individual was a great guy and that she had it all wrong.
c. The individual testified the applicant told him she had the email on her desk for 2 to 3 weeks and had been looking at it every day trying to figure out how to deal with him. She also told him he was out of line and as a result she was pulling his extension request.
d. The applicant also testified the reason she disapproved the individual's extension request was because he had crafted the email questioning the legal opinion of an attorney. She was visibly upset by the individual's actions and reiterated several times during her testimony that his actions were not justified. She could no longer support the extension because he had questioned the legal findings of an attorney.
e. When asked directly by the investigating officer what led her to recommend disapproval, she stated it was the memorandum referring to the email sent by the complainant. On more than one occasion, the applicant testified that the individual was working out of his scope in crafting the email about an attorney. She testified that the tone of the email was not appropriate. She saw the email as a direct request to have an attorney's credentials reviewed even though it was the 79th SSC SJA who had directed the credibility determination inquiry. She testified she did not know and did not inquire to determine the reason why the 79th SSC IG office provided the email of mismanagement concerns to the 79th SSC SJA.
f. The applicant felt justified in her decision to reverse her approval to disapproval decision because she received a concurrence from the FORSCOM CIG. However, the FORSCOM CIG had advised her as he did because he believed detailed Soldiers should be returned to the field after about 2 years so they can refresh and stay relevant.
g. The 79th SSC CIG testified that the applicant had told him she was concerned that the 79th SSC IG office was nosing in on the SJA business of the subordinate unit and that their method of legal review was not the 79th SSC's concern. The 79th SSC CIG testified he believed the individual was denied his extension as reprisal. He based his belief on the sudden reversal of the decision from approval to disapproval, which had to have been triggered by something, like the email that was the topic the applicant had discussed with the individual.
h. The 79th SSC SJA testified that the applicant had told him the email caused the applicant to change her mind about the individual's extension request.
13. The ROII analysis of the complaint:
a. Question 1: Was there a protected communication made or prepared that was protected by 10 USC § 1034? Yes, the 6 June 2012 email the individual sent to the 79th SSC SJA was a protected communication. The email discussed concerns about the 311th ESC Judge Advocate's mishandling of legal matters from November 2011 through June 2012. The individual reported what he perceived to be a violation of law and regulation (mishandling of legal matters) to the supervisory chain of command. The email was sent to the 79th SSC to address the continuing perceived issues within the 311th ESC SJA office.
b. Question 2: Was there an unfavorable personnel action taken after the protected communication was made?
(1) Yes, regarding the 5th year extension that was a precursor to deployment. The applicant originally recommended approval of the request, then later, after receiving the protected communication, she reversed her decision to support the request, effectively denying the request.
(2) No, regarding the decision by the applicant not to submit a nominee for the TIGS instructor position. The decision to relieve the USARC from the requirement to provide candidate nominations for the TIGS instructor position was made at the DAIG level.
c. Question 3: Did the responsible management official know about the protected communication? Yes, the applicant was given a copy of the email on 16 July 2012.
d. Question 4: Does the evidence establish that the unfavorable personnel actions would have been taken if the protected communication had not been made?
(1) No, for the first personnel action concerning the individual's request for extension. This action was originally approved by the applicant. When the applicant became aware of the email, she then disapproved the extension request. The applicant testified the reason for her disapproval was because the individual sent an email to the 79th SSC SJA. She believed the individual's reasons were not justified because he was questioning the legal opinions of an attorney. She considered the email to be the rationale for the JAG officer's credentials review. She testified several times that she disapproved the extension request because the individual questioned the legal opinion of an attorney.
(2) Yes, for the second personnel action concerning the TIGS instructor position. The applicant's office was relieved of the requirement to provide nominations for the position.
14. The ROII conclusions of the complaint:
a. The allegation that the applicant improperly denied the complainant's request for extension of IG duty and deployment, in reprisal for making a protected communication, in violation of DOD Directive 7050.06 was substantiated.
b. The allegation that the applicant had denied the complainant an opportunity to compete for a TIGS instructor position, in reprisal for making a protected communication, in violation of DOD Directive 7050.06, was not substantiated.
15. The ROII recommended concurrence with the conclusions and that the case be forwarded to the DOD-IG for final approval.
16. In a memorandum, dated 13 February 2013, the applicant was informed by the Chief, Assistance Division, U.S. Army IG Agency, that the DAIG had completed its inquiry into the whistleblower reprisal allegations made against her and that the DOD-IG had approved the DAIG ROII. The results substantiated that she had improperly denied a Soldier's request for an IG duty extension and deployment in reprisal for a protected communication. The case was considered closed.
17. On 26 March 2013, the Director, Whistleblower Reprisal Investigations, DOD-IG, responded to the applicant's Hotline appeal of the DAIG finding that she had reprised against a Soldier as a result of his email complaint. The applicant believed the email did not amount to a protected communication under DOD Directive 7050.06. She was advised that after a careful and extensive review by the DAIG Legal Advisor and the associated documentation, the DOD-IG concluded that she had not provided any new or compelling information or evidence to warrant overturning the DAIG original finding that she did reprise against another Soldier for making a protected communication.
18. The applicant's OER, for the period ending 1 April 2013, shows she served as the USARC CIG since 2 April 2012. The OER appears to be a regularly scheduled annual report that shows she met all of the Army values and leader attributes. Her performance was rated as outstanding with recommendations for further assignments to challenging positions to capitalize on her tremendous potential. Her senior rater evaluated her as best qualified. There is no evidence in the report indicating anything derogatory or questionable with her performance of duty. It is not a relief-for-cause report.
19. Orders R-05-383827, HRC, dated 23 May 2013, reassigned the applicant to duty as Deputy Command Judge Advocate, HRC, Fort Knox, Kentucky, with a report date of 22 July 2013.
20. Orders C-09-412641, issued by HRC on 9 September 2014, released the applicant from assignment with HRC and reassigned her to the Fort Knox Transition Office for separation processing effective 10 February 2015. These orders show her scheduled date of separation as 31 May 2015.
21. Counsel provides:
a. The applicant's 5-page, self-authored declaration (Declaration of COL [Applicant], Judge Advocate, U.S. Army), wherein she states:
(1) She is an active duly judge advocate with over 29 years of commissioned service. From 30 April 2012 until April 2013, she served as the Command IG for the USARC. As the USARC CIG, she was a member of the USARC Commanding General's personal staff and was directly responsible for leading, mentoring, and training a directorate of 27 IG personnel and oversight of over 300 USAR IGs supporting over 45 MSCs.
(2) She was responsible with ensuring the rights of individuals and the interests of the Army Reserve were protected as prescribed by law and regulation within the scope of governing Inspector General regulatory protocols, including providing technical oversight of subordinate IG. A core responsibility is protection of "whistleblowers."
(3) The standard tour of duty for an inspector general is three years, after which the officer returns to the officer's assigned branch in the Army. The USARC Command IG may approve an additional year for an IG assigned to USARC. To serve a 5th year, TIG approval is required. Requests for a 5th year extension require the USARC's favorable approval before the request is forwarded to TIG for final approval. If the USARC is not supported by the USARC IG, the request is effectively denied and should not be forwarded to TIG. Whether to approve or deny a request for extension is discretionary, however, the governing regulation is silent on the criteria to be applied to the exercise of discretion. The only guidance provided by regulation is that officers will "normally not serve consecutive or repetitive tours as an IG."
(4) LTC F requested his extension on 13 February 2012. She was assigned as the Command IG on 30 April 2012. She initially recommended approval of LTC F's request on 10 June 2012. Beginning on 16 July 2012, she became aware of issues reflecting poorly on LTC F's abilities to serve as an IG. Her USARC IG SGM made a trip to the 311th ESC and orally described concerns of a dysfunctional relationship between LTC F and the 33th ESC Office of the SJA. The IG SGM related communications from individuals in that command that suggested that LTC F was "bullying" members of that command and that as a result there was a "tumultuous" relationship between the IG and the 311th ESC Office of the SJA.
(5) When her SGM returned from the trip, she provided her with a copy of an email written by LTC F and addressed to the COL JS, the 79th SSC SJA, addressing the alleged shortcomings of one of the judge advocates of the 311th ESC, CPT C, along with a memorandum prepared by the subject of the email, CPT C, contradicting those allegations. Along with the oral report of the SGM, the contents of the documents gave her (the applicant) pause and concern that LTC F lacked the objectivity and fairness required to be an effective IG.
(6) Significantly, over the course of the following month, she learned additional disturbing facts about LTC F. First, on or about 25 July 2012, the SGM reduced her trip report to writing. In that report, she reiterated in writing the negative information about LTC F that she had conveyed orally in person on or about 17 July 2012, emphasizing her concern about the "tumultuous" relationship between LTC F and the 311th ESC, and naming him as a problem with harmonious relations between the two commands. Second, on or about 25 July 2012, she received a written IG complaint from CPT C, the subject of LTC F's complaint. The IG complaint was detailed, specific and factual. As she was required to do, she submitted the complaint through channels to the DAIG. CPT C's complaint heightened her concerns about the conduct, demeanor and professionalism of LTC F. The information in the complaint was corroborated by members of the 311th ESC Office of the SJA, including LTC SF, 311th ESC SJA, who was CPT C's superior.
(7) As a result of LTC F's email to COL SF, a Professional Responsibility Inquiry was initiated against CPT C. She was aware of this because CPT C provided with his complaint a copy of his response to the allegations provided to the IO conducting the Professional Responsibility Inquiry. The sum of this information led her to reconsider her recommendation to approve a 5th year extension of service as an IG to LTC F. However, before she made a decision, and because she had only been the Command IG for approximately three months, she contacted her technical supervisor, the FORSCOM Command IG, showed him a copy of the LTC F email and discussed the matter of the reports she was receiving from multiple sources to ascertain whether she was headed down the right path. After reviewing the email and discussing the matter with her, the FORSCOM Command IG stated that he likewise would not support a 5th year extension for LTC F. As a result of the information she had collected, and with the concurring opinion of her technical supervisor, she felt it was not in the best interest of the Army to recommend LTC F for a 5th year extension as an IG. In early August, she informed DAIG that she no longer supported LTC F's extension and she rescinded her recommendation for approval and disapproved the request, which had the effect of denying the request.
(8) Having reviewed the redacted IG report, it is clear that the IG failed to credit the evidence that she had collected and corroborated prior to her decision, "cherry picking" portions of her testimony and failing to address other clearly available facts and evidence, to reach a pre-determined conclusion. It is true that the email was the genesis of her concerns, because on its face it lacked specificity, was based on hearsay, and mostly concerned trivial matters, yet could have a profound effect on an officer's career, but was not submitted in accordance with the provisions of Army Regulation 20-1, requiring submission to the DAIG legal advisor. Her concern with the email was, that as an IG who is trained to collect facts, the email lacked the facts to support the potential damage to an officer's career and was submitted contrary to the provisions of a specific mandate of the IG regulation, Army Regulation 20- 1. Her concern with LTC F was that his reported conduct, reported by multiple individuals, was contrary to the demeanor, appearance of fairness, and character expected of an IG and that his useful tenure as an IG had expired. Her concerns were validated by evidence received by multiple sources independent of the LTC F email.
(9) As set forth by her counsel, she disputes the IG's findings that the email was a protected communication, given the definitions set forth in law and regulation. But even if it were a protected communication, based on the facts she obtained subsequent to 16 June 2012, including information provided to her by her SGM, information provided to her in writing by CPT C and her conversations with members of the 311th Office of the SJA and COL RJ, she would have made the same decision even if she had not reviewed the email. Information provided by members of the 311th ESC to her SGM, her SGM's concerns stated to her about LTC F's relationship and bullying members of the 311th ESC and the reporting she received from the command on her trip regarding LTC F, and the detailed, factual information provided by CPT C demonstrating biased, inappropriate and threatening conduct by LTC F would have led her to the same conclusion, that LTC F needed to return to his branch and that his request for extension to a 5th year should be denied (emphasis added).
(10) It is also important to note that as a result of LTC F's claim of whistleblower reprisal, a Professional Responsibility Inquiry was generated by TJAG into whether she had committed misconduct. That review concluded that she had not violated any provision of law, regulation or Rules of Professional Responsibility and the investigation was closed. Similarly, despite the findings of the IG investigation, she suffered no adverse administrative or disciplinary action and she received a superior OER from her three-star Rater/Senior Rater, who was cognizant of all of the facts and privy to the IG report. Finally, despite the finding by the IG, her disapproval of the extension request was not overturned, and LTC F was transferred.
b. A memorandum for record (MFR) from SGM J, dated 27 July 2012, subject: Trip Report IG Office Site Visit/311th ESC, Los Angeles, California, wherein the author, SGM J, states:
(1) She conducted a site visit to the 311th ESC IG office to meet the staff, receive an information brief on office operations, and discuss issues and concerns the staff may have with IG mission requirements. She arrived on 16 July 2012 and departed on 17 July 2012.
(2) She met with MSG F, Assistant IG at the 311th ESC. Among other things, MSG F expressed her concerns about the tumultuous relationship between the 311th IG office and the 79th SSC IG office. MSG F believes this is due to LTC F's influence on other 79th SSC staff members. She believes LTC F uses his position as a means to persuade others to see things his way. This conversation led to her concern about a case the 311th JAG office had reviewed. LTC F did not agree with the 311th JAG officer's findings, which led him to question the JAG officer's credentials. MSG F introduced her (SGM J) to the JAG Officer, CPT C; he provided her a copy of his response (previously provided) to LTC F allegations of CPT C's inability to perform his duties.
c. A memorandum from SGM J to the ABCMR, dated 10 May 2013, subject: Letter of Support for COL [Applicant], wherein she states:
(1) In her 30 years of service, she has met very few leaders with such true professionalism and high regard for equality for seniors and subordinates alike. She is always genuine and forthright in doing the right thing.
(2) She (the applicant) initially became aware of LTC F's inappropriate behavior as a detailed IG from the information she (the SGM) shared with her pertaining to a site visit she made to the 311th ESC. Upon her return, she shared with the applicant both verbally, and in her trip report, a matter that deeply troubled her. This matter was brought to her attention during a conversation with the 311th ESC Assistant IG, MSG F. MSG F stated the 311th ESC IG office and their higher command, the 79th SSC IG office, have a tumultuous relationship. MSG F expressed the primary reason for this tumultuous relationship seemed to be centered on one person, LTC F. She further stated to me that she believes LTC F uses his position in the 79th SSC IG office as a means to persuade others to see things his way; this included other members of the 79th SSC staff. This conversation led to her providing an example of LTC F's inappropriate behavior as a detailed IG; specifically, when he tried to persuade a 311th ESC JAG officer to change his legal opinion to be in agreement with his own.
(2) MSG F explained the incident involved a case the 311th ESC JAG office had reviewed for the 311th ESC IG office. LTC F did not agree with the 311th ESC JAG officer's findings, which led to him to request the 79th's SSC JAG office initiate action to review the JAG officer's credentials. It is doubtful that LTC F was not aware that each JAG office is to work in autonomy of the higher command IG office. MSG F introduced her to the JAG officer that LTC F tried to bully, CPT C, and he provided her a copy of his response to LTC F allegations of CPT C's inability to perform his duties. CPT C stated the allegations LTC F provided to the 79th SSC Office of the SJA against him included inaccurate statements. CPT C expressed LTC F had undue influence on the 79th SSC Office of the SJA staff, which caused the questioning of his credentials to be considered for review. Before this incident, the 79th SSC Office of the SJA had not questioned any of CPT C's work or addressed his performance with the 311th ESC CG. The conversation she had with both MSG F and CPT C concerning LTC F led her to believe that his behavior needed to be brought to the attention of the applicant as it was not conducive to a positive work relationship for productivity.
(3) CPT C's response to LTC F's allegations against him clearly spelled out that LTC F acted outside of the parameters of a detailed IG as prescribed in Army Regulation 20-1. The applicant's decision to recommend that LTC F not be extended for a 5th year was a sound decision in line with the guidance of DAIG, TIG, and in the best interest of the Army Reserve. In discussing the matter with her, there was never a moment that she expressed any degree of impartially [sic] for or against LTC F. The applicant took all matters into consideration, to include the fact that there was already an incoming replacement identified for LTC F, and made a decision expected of her as the USARC Command IG. Her decision and action was in no way reprisal against LTC F. It was solely in the best interest of the 79th SSC and the 311th ESC IG offices. Once again, LTC F manipulated the system because someone disagreed with him, when he made allegations of Whistle Blower Reprisal against the applicant. Her removal as the USARC Command IG was an injustice to her and the Soldiers who serve with her. This one decision in no way reflects her heart as a Soldier, Warrior, and Leader among Leaders. She would proudly serve with her again.
d. An MFR from CPT C, dated 30 April 2013, subject: Detrimental Conduct of LTC F, wherein CPT C states:
(1) This memorandum is submitted at the request of the applicant to explain the reasons why he (CPT C) was compelled to report certain actions of LTC F, who was during the relevant periods of time the IG for the 79th SSC. He adds that he was a judge advocate assigned to the 311th ESC during the relevant periods of time referenced herein. He affirms that all statements in this memorandum are true to the best of his recollection and review of records available to him.
(2) In July 2012, he reported certain matters of serious concern regarding the behavior of LTC F to the USARC Command IG (Applicant). His enclosures include a memorandum "Statement in Support of Request for Inspector General Action (DA Form 1559), dated 25 July 2012; a memorandum, "Response to Credibility Determination Inquiry," dated 24 July 2012; a memorandum, "Appointment to Conduct Credibility Determination/Preliminary Screening Inquiry - CPT C," dated 21 June 2012; and a memorandum, "Decision Concerning Alleged Professional Misconduct: CPT C," dated 13 October 2012.
(3) His concerns about the conduct of LTC F pertained to his engagement in the unlawful practice of law, interfering with the ability of judge advocates to provide independent legal advice to commanders, losing all objectivity and impartiality as required of IGs by openly stating that he personally needed to be punished, causing the initiation of a frivolous and, he believed, personally-motivated investigation against him, blatantly misstating facts, failing to comprehend the most basic principles of due process, threatening to get him (and commanders) in trouble if they did not do as he said, twisting differences in opinion into acts of disrespect towards him, and causing a significant rift between his office and 79th SSC. In short, the actions of LTC F, conducted in his official capacity as an IG, were so detrimental to him, his command headquarters, and their downrange units, that he had no choice but to formally raise his concerns with the applicant in her capacity as the USARC Command IG.
(4) Regarding the frivolous investigation that LTC F caused to be initiated against him, it must be noted that other JAG officers in his office and a down trace brigade had expressed concerns to him about facing adverse action (i.e. investigations) if they also provided legal opinions that LTC F disagreed with. This potential chilling effect on the judge advocates was one of the main reasons he felt compelled to formally raise his concerns with the applicant.
e. An MFR from COL JS, dated 13 October 2012, subject: Decision Concerning Alleged Professional Misconduct: CPT C. In this memorandum, COL JS, the 79th SSC SJA, affirms that he appointed an IO to conduct a credibility determination/preliminary screening inquiry concerning allegations by LTC F of professional misconduct by JAG officer CPT C. He (the appointing authority) had reviewed the IO's thorough, well-documented, and well-reasoned report of inquiry and he adopted the IO's finding of no credible evidence to support allegations that CPT C had committed professional misconduct, specifically Rules 1.1 and/or 1.3 of Army Regulation 27-26 (Rules of Professional Conduct for Lawyers).
f. A memorandum from COL JS to MAJ H, Office of the SJA, 364th Sustainment Command (Expeditionary), dated 21 June 2012, subject: Appointment to Conduct Credibility Determination/Preliminary Screening Inquiry CPT C. This memorandum shows that COL JS, the 79th SSC SJA, appointed an IO to assist in conducting a credibility determination into alleged professional misconduct on the part of CPT C. The primary purpose in conducting an inquiry was to secure sufficient evidence to make factual findings regarding the issues in question.
g. A memorandum from CPT C to the applicant, dated 25 July 2012, subject: Statement in Support of Request for IG Action (DA Form 1559 (IG Action Request)), wherein CPT C provides his background and assignment and describes in detail points of disagreement between himself and LTC F. He concludes that LTC F had demonstrated clear, personal bias against him personally, and his office in general. LTC F is incapable of acting in a fair, impartial, and objective manner required of an IG. He failed to understand the boundaries of his authorized activities, as set by the regulation. He does not comprehend the basic and critical difference between his disagreements with other officers' findings of fact or law and due process. He makes inappropriate demands and follows them up with threats if his demands are not satisfied.
h. An MFR from LTC SF, dated 29 April 2013, subject: Letter of Support for COL [Applicant], wherein he states:
(1) This memorandum is written in support of [Applicant]. During his correspondence with [Applicant] regarding LTC F's inappropriate and illegal actions, she was always extremely professional and demonstrated a desire to make sure that due process was completely afforded all service members who sought the IG's assistance. He took it upon himself to explain to her that LTC F was acting in an irresponsible, unprofessional and disruptive fashion. In particular, there was a case that his office was handling in which there was substantial evidence that a service member was engaging in adultery as well as other enumerated offenses. LTC F impeded the investigation by telling the member's commander that he should not proceed with the adultery allegation as there was, in LTC F's personal opinion, insufficient evidence. LTC F obsessed on this issue, went far outside the IG lane and into the realm of giving legal advice. To his knowledge, LTC F is not an attorney. Such conduct on his part could be construed as wrongful interference with an adverse administrative proceeding. Further, he was, in essence, practicing law without a license. Naturally, his conduct was extremely disruptive to the entire SJA office of the 311th ESC.
(2) He also wrongfully interfered with a case in which an anonymous complaint was lodged regarding a senior civilian employee of the 311th ESC. Many of the allegations had no points of reference and could not be investigated. The CG agreed, yet LTC F insisted that those allegations with no points of reference must be investigated, and that if they were not investigated, the matter would find its way to the DAIG, who would expand its own investigation to include why those allegations were not initially investigated. In a spirit of cooperation, he (the author) had his office do additional investigation and then the case was closed. LTC F was still not satisfied, even though he had absolutely no standing to object as to how my office conducted the investigation. There was an additional instance in which LTC F was wading into legal matters of which he had no legal authority to do so. He deemed a particular investigation invalid because a few of the statements were not sworn due to logistics difficulties. This does not render an investigation invalid. Unfortunately, LTC F again interfered with a valid investigation and demanded that the statements be modified and the investigation re-opened. He declined to entertain such nonsense.
(3) [Applicant] seemed to be the only voice of reason within the IG technical chain. LTC F was extremely disruptive to his office and caused significant problems. LTC F somehow came to believe that he was a supervisor in the 311th ESC Office of the SJA. [Applicant] was advised of the problems by his office and took the responsible action of declining to recommend him for an additional year as an IG. He (the author) is fully supportive of [Applicant] and considers her to have been the only voice of reason and logic within IG channels during this ordeal with LTC F.
i. An email from LTC F to COL JS, dated 6 June 2012 [protected communication].
j. A memorandum from LTC S, Acting SJA to the applicant, dated 1 July 2013, subject: Disposition of Allegations of Professional Misconduct. This memorandum states:
(1) Earlier this year, the DAIG advised this office of allegations made regarding her (applicant's) professional conduct as a judge advocate and compliance with the Army Rules for Professional Conduct for Lawyers (ARPCLs) while handling a matter involving one of her subordinates in the IG chain of command, LTC F. As a result of the referral, the USARC SJA at the time, COL H, consulted with the Professional Responsibility Branch (PRB), Office of The Judge Advocate General (OTJAG), and completed a preliminary screening inquiry (PSI) under the provisions of Army Regulation 27-1, Chapter 7.
(2) Upon review of the matters she submitted in response to the PSI, COL H determined that her actions did not violate the ARPCLs and forwarded the PSI and her response to the PRB, OTJAG, on 25 June 2013. The PRB concurred with the findings and proposed disposition. Accordingly, COL H closed the case and as a result this office will take no further action. Information regarding this inquiry may be releasable when she applies for bar membership or federal employment. In such cases, she should carefully review the questions posed to her, as she may be required to respond affirmatively if asked whether her fitness to practice law or conduct as an attorney has ever been challenged in any jurisdiction.
k. A 21-page memorandum from CPT C to MAJ H, Office of the SJA, 364th Sustainment Command (Expeditionary), dated 24 July 2012, subject: Response to Credibility Determination Inquiry, wherein CPT C responds to the inquiry that was initiated against him by the 79th SSC SJA and concludes that he did not violate any rule of professional misconduct. He provides a detailed background of his military service, assignments, and relationships with other SJAs and IGs. He also provides a detailed background of certain situations/incidents to show his credibility. He indicates that he had not violated any rule of professional conduct and he was not disrespectful to anybody. He provides a detailed analysis of the events preceding his Credibility Determination Inquiry, vis-à-vis LTC F's allegations of his misconduct, and he refutes LTC F's allegations.
22. DOD Directive 7050.06, dated 23 July 2007, implements the provisions of Military Whistleblower Protection as codified at 10 USC § 1034. It establishes that no person shall restrict the right of members of the Armed Forces to make protected communications with specified leaders and government officials. The MWPA prohibits restricting communications with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization. It also prohibits personnel actions against members in retaliation or reprisal for making or preparing a protected communication.
a. Protected communication is defined as:
(1) Any lawful communication to a Member of Congress or an IG;
(2) A communication in which a member of the Armed Forces communicates information that the member reasonably believes evidences a violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination, gross mismanagement, a gross waste of funds or other resources, an abuse of authority, or a substantial and specific danger to public health or safety, when such communication is made to a Member of Congress, an IG; a member of a DOD audit, inspection, investigation, or law enforcement organization; or any person or organization in the chain of command; or any other person designated pursuant to regulations or other established administrative procedures to receive such communications.
b. Reprisal is defined as "taking or threatening to take an unfavorable personnel action, or withholding or threatening to withhold a favorable personnel action, for making or preparing to make a protected communication."
c. A "personnel action" is any action taken that affects, or has the potential to affect, the military members current position or career. Personnel actions include promotions; disciplinary or other corrective actions; transfers or reassignments; performance evaluations; decisions on pay, benefits, awards, or training; referrals for mental health evaluations; and any other significant changes in duties or responsibilities inconsistent with the military members grade.
23. According to the DOD Whistleblower Program, Guide to Investigating Military Whistleblower Reprisal and Restriction Complaints, there are four elements that must be established to make a finding of reprisal:
a. Element 1, Protected Communication: Did a Complainant make or prepare to make a protected communication, or was Complainant perceived as having made or prepared to make a protected communication?
b. Element 2, Personnel Action: Was an unfavorable personnel action taken or threatened against the Complainant, or was a favorable personnel action withheld or threatened to be withheld from Complainant?
c. Element 3, Knowledge: Did the responsible management official(s) have knowledge of Complainant's protected communication(s) or perceive Complainant as making or preparing protected communication(s)?
d. Element 4, Causation: Would the same personnel action(s) have been taken, withheld, or threatened absent the protected communication(s)?
24. Army Regulation 20-1 prescribes policy and procedures concerning the mission and duties of TIG. It prescribes duties, missions, standards, and requirements for IGs throughout the Army.
a. Paragraph 1-13 (Prohibited Activity), sub-paragraph b. (Prohibitions against reprisal) (2) (Military whistleblower) provides that persons subject to this regulation will not take (or threaten to take) an unfavorable personnel action or withhold (or threaten to withhold) a favorable personnel action with respect to a member of the armed forces for making or preparing a (lawful) protected communication. Lawful communications are those communications made to an IG; Member of Congress; member of a DOD audit, inspection, or investigation organization; law enforcement organization; or any other person or organization (including any person or organization in the chain of command starting at the immediate supervisor level) designated under regulations or other established administrative procedures to receive such communications. The term "lawful communication" encompasses information that the Soldier reasonably believes provides evidence of a violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination, gross mismanagement, a gross waste of funds or other resources, an abuse of authority, or a substantial and specific danger to public health or safety.
b. Paragraph 3-1 (Nature of IG Records) provides that all IG records, including USAR IG records, are the property of the Secretary of the Army. IGs maintain these records on behalf of the Secretary of the Army. The Secretary's designated authority for all IG records is TIG. TIG, Deputy TIG, the Principal Director to the Inspector General for Inspections, and their designated representatives (DAIGs legal advisor and deputy legal advisor) have the authority to release IG records. 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, IGNET data, or other computer automatic data processing files or data, to include IG notes and working papers.
c. Paragraph 3-3 (Use of IG records for adverse action) provides that IG records will not be used as the basis for adverse action (see glossary) against any individual unless specifically authorized by the Secretary of the Army, the Under Secretary of the Army, the Army Chief of Staff, the Army Vice Chief of Staff, or TIG. Requests must be submitted to TIG. Any request to use the results of an IG investigation for adverse action must state why the command did not initiate a command investigation into the alleged misconduct and why a follow-on command investigation would be unduly burdensome, disruptive, or futile. Command investigations preclude the necessity of using IG records for adverse action and thereby safeguard the integrity of the IG system. An exception to this rule is the use of DOD-IG-approved reports of investigation or investigative inquiry containing substantiated non-senior official allegations of violations of Title 10, USC, section 1034 (reprisal) as a basis for adverse action.
d. Paragraph 3-8 (Release of records and reports under the military whistleblower reprisal statute) provides that an IG may provide information relating to complaints of whistleblower reprisal and improper mental health evaluation (MHE) referral directly to DOD-IG Military Reprisal Investigations upon request without TIG or DAIGs Records Release Office approval. This information includes, but is not limited to, the original complaint with supporting documentation; IG records or investigation material; official personnel and medical records (orders, evaluations, and so forth); Army Regulation 156 investigations, commanders inquiries, or equal opportunity investigations; and any other information deemed relevant to resolving an official complaint. This exemption only applies when DOD-IG Military Reprisal Investigations requests the information in support of a preliminary inquiry or investigation.
e. Paragraph 312 (Requests for reconsideration of IG findings, opinions, judgments, or conclusions) provides that all requests to add or delete a subject, alter a function code, and/or alter an allegation determination in an IG record will be forwarded or directed to DAIGs Assistance Division for referral to the appropriate divisions within DAIG for review prior to action by TIG, the DTIG, or the Principal Director to the Inspector General for Inspections. Only TIG may approve or disapprove requests to amend determinations in IG records. All requests to amend determinations in IG records will include one copy of the record for which the amendment is sought; any documents in support of or related to the disputed record; acknowledgement to the requester; and recommendations, with supporting rationale, concerning whether the amendment should be approved or disapproved. Requests for amendments concerning opinion, judgment, or conclusion may be granted upon a showing of fraud, mistake of law, mathematical miscalculation, or newly discovered evidence.
f. The Glossary provides the following definitions:
(1) Assistance inquiry: this is an informal fact-finding process used to address or respond to a complaint involving a request for help, information, or other issues but not allegations of impropriety or wrongdoing.
(2) Command IG: this is the senior, detailed IG of a Modified Table of Organization and Equipment (MTOE) or Table of Distribution and Allowances (TDA) organization of the active Army, Army National Guard or USAR. The command IG works directly for the commander, who is normally a CG, installation commander, State Adjutant General, or director of an organization.
(3) Directing authority: this is an Army official who has authority to direct an IG investigation or inspection. Commanders or directors who are authorized detailed IGs on their staffs may direct IG investigations and IG inspections within their commands. Although command and State IGs may direct IG investigative inquiries, they are not considered directing authorities.
(4) Founded/Unfounded: "Founded" is one of two final dispositions for an IG issue to be used when the IGs inquiry into the matter determined that the problem had merit and required resolution. "Unfounded" is the second of two final dispositions for an IG issue to be used when the IGs assistance inquiry into the matter yields no evidence that a problem existed for the IG to resolve.
(5) Not substantiated: this is 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.
(6) IG investigation: this 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. An IG investigation involves 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. IGs normally do not resolve allegations using this methodology but instead rely on the investigative inquiry. IGs report the conclusions of their investigations using a Report of Investigation (ROI). Occasionally, IG investigations may examine systemic issues, especially when the possibility of some wrongdoing exists. For example, an IG might investigate an allegation that the development of a weapon system is fraught with fraud, waste, and abuse.
(7) IG investigative inquiry: this is an informal fact-finding examination into allegations, issues, or adverse conditions that are not significant in natureas deemed by the command IG or directing authorityand when the potential for serious consequences (such as potential harm to a Soldier or negative impact on the Armys 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 IGs 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. Inspectors general resolve most allegations using this methodology and report their conclusions using the ROII.
(8) Report of Investigative Inquiry: this a written report used by IGs to address allegations, issues, or adverse conditions to provide the directing authority, command, or State IG a sound basis for decisions. The directing authority or command or State IG approves the Report of Investigative Inquiry.
(9) IG records: this is any written, recorded, or electronic media information gathered and produced by an IG. These include, but are not limited to, any correspondence or documents received from a witness or a person requesting assistance; IG reports of inspection, inquiry, and investigation; IG Worldwide Network (IGNET) or other computer Automated Data Processing (ADP) files or data; and DA Form 1559 when entries are made on either side. IG records may contain documents that an IG did not prepare.
25. Army Regulation 27-1 (Judge Advocate Legal Services) prescribes policies and procedures pertaining to Judge Advocate Legal Services. Paragraph 5-2 provides in part that the supervisory Judge Advocate of a command is the legal advisor to the commander, a member of the commanders personal staff, and assists the commander in the performance of his or her duties. The supervisory Judge Advocate will assist the commander by identifying legal problems and participating in making legally acceptable decisions. This includes technical supervision of JAGC officers located in the headquarters or assigned to subordinate commanders.
26. Army Regulation 27-26 (Rules of Professional Conduct for Lawyers) sets forth the rules of professional conduct for Army lawyers. Rule 1.1 provides that a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation of the client.
27. Article 92, Uniform Code of Military Justice, sets forth the elements of the offense of failure to obey an order or regulation. Included in this Article is the offense of dereliction of duty. The elements of this offense are:
a. The accused had certain duties;
b. That the accused knew or reasonably should have known of the duties; and
c. The accused was willfully or through neglect or culpable negligence derelict in the performance of those duties.
Negligence means an act or omission of a person who is under a duty to use due care which exhibits a lack of that degree of care which a reasonably prudent person would have exercised under the same or similar conditions.
28. Title 5, USC, section 552 sets forth the statutory bases for FOIA. Paragraph (a)(6)(i) provides that an agency shall determine within 20 days (excluding weekends and holidays) of the receipt of a request FOIA whether to comply with such request.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for correction of her military records, by reversing the findings of the DAIG that she violated the MWPA, and by removing all references to those findings from her official military records, to include the substantiated allegation in the DAIG database, was carefully considered.
2. The evidence of record shows DAIG conducted an investigation into allegations of Whistleblower reprisal in accordance with 10 USC § 1034, wherein LTC F alleged that:
* the applicant improperly denied his request for an IG duty extension and deployment in reprisal to making protected communication in violation of DOD Directive 7050.06, Military Whistleblower Act
* the applicant denied him the opportunity to compete for the IG School position in reprisal to making protected communication in violation of DOD Directive 7050.06
3. As required by the governing regulation, a detailed IG conducted the investigation using documentary evidence and personal testimony and concluded that:
a. The allegation that the applicant improperly denied LTC F's request for extension of IG duty and deployment, in violation of DOD Directive 7050.06 and in reprisal against him for making a protected communication, was substantiated.
b. The allegation that the applicant had denied LTC F an opportunity to compete for an instructor position at The Inspector General School, in violation of DOD Directive 7050.06 and in reprisal against him for making a protected communication, was not substantiated.
4. An appropriate official at DAIG concurred with the findings and the ROII and recommended concurrence with the conclusions and that the case be forwarded to the DOD-IG for final approval.
5. The applicant was informed via memorandum on 13 February 2013 that the DAIG had completed its inquiry into the whistleblower reprisal allegations made against her and the DOD-IG had approved the DAIG ROII. The results substantiated that she had violated the MWPA by improperly denying a Soldier's request for an IG duty extension and deployment in reprisal for a protected communication.
6. It appears she appealed the DAIG finding that she had reprised against a Soldier, but, on 26 March 2013, the Director, Whistleblower Reprisal Investigations, DOD-IG, responded and advised her that after a careful and extensive review by the DAIG Legal Advisor and the associated documentation, the DOD-IG concluded that she had not provided any new or compelling information or evidence to warrant overturning the DAIG original finding that she did reprise against another Soldier for making a protected communication.
7. The applicant and her counsel contend:
a. The DAIG erred as a matter of law and regulation when it concluded that LTC F's email was a protected communication.
(1) In order to be a protected communication, the communication must be directed to a person or organization in the chain of command or other person designated by regulation to receive a protected communication.
(2) In the particular case of an IG making a complaint against a judge advocate, Army Regulation 20-1 is the regulation that governs who is empowered to receive such a communication. In accordance with Army Regulation 20-1, an IG such as LTC F is required to refer any allegations involving professional misconduct by an Army lawyer (military or civilian) through TIG's legal advisor to the senior counsel having jurisdiction over the subject lawyer for disposition (in this case, the USARC SJA). LTC F failed to comply with this mandatory provision of regulation.
(3) Even if the communication by LTC F could be considered a protected communication, it was not submitted or delivered to the authority required according to the regulation governing such reports by IGs concerning attorney misconduct, was not received by the TIG's legal advisor, and the violation of specific regulatory procedure alone by an IG, would have been a valid reason for the applicant to reconsider her discretionary approval of a 5th year of IG service for LTC F, due to his inability or unwillingness to comply with regulation having the force and effect of law. More importantly, the email did not qualify as a "protected communication" as that term is defined in statute and regulation.
(4) The email was not directed to an IG or a member of Congress, so DOD Directive 7050.06 did not apply.
(5) The email did not report a violation of law or regulation, gross mismanagement, gross waste of funds or other resources, an abuse of authority, or a substantial and specific danger to public health or safety, which excludes it from the bounds of DOD Directive 7050.06.
b. The "acid test" for examination of an alleged retaliation for protected communication, assuming there was a protected communication under the statutory subject matter definitions, resides in the answer to Question 4:
Does the evidence establish that the unfavorable personnel action would have been taken if the protected communication had not been made?
In this case, the IG misstated evidence and made key redactions that hid substantive information that, in addition to the LTC F email, provided ample justification for the applicant's decision to revoke her approval of LTC F's 5th year extension.
8. In support of these contentions, the applicant provides:
a. Memoranda and letters of support from IG and SJA officials, which speak to the applicant's professionalism, devotion to her duty, and her fairness and objectivity as the USARC CIG. Additionally, these memoranda illustrate the contentious working relationship LTC F had with member of the 311th ESC Office of the SJA.
b. CPT C's Statement in Support of an IGAR, dated 25 July 2012, and response questions to MAJ H, Office of the SJA, 364th Sustainment Command (Expeditionary), dated 24 July 2012, subject: Response to Credibility Determination Inquiry. These documents refute the allegations contained in LTC F's email, which formed the basis for the professional responsibility inquiry that was conducted that cleared CPT C of any professional responsibility violations.
c. The applicant's provided evidence and her (and her counsel's) contentions were thoroughly considered.
9. DOD Directive 7050.06 prohibits reprisal against members of the armed forces for making or preparing protected communications. According to this Directive:
a. Protected communication is defined as any lawful communication to a Member of Congress or an IG, or any communication in which a member of the Armed Forces communicates information that the member reasonably believes evidences a violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination, gross mismanagement, a gross waste of funds or other resources, an abuse of authority, or a substantial and specific danger to public health or safety, when such communication is made to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization, or any person or organization in the chain of command, or any other person designated pursuant to regulations or other established administrative procedures to receive such communications (emphasis added).
b. Reprisal is defined as taking or threatening to take an unfavorable personnel action or withholding or threatening to withhold a favorable personnel action, for making or preparing to make a protected communication.
10. In this case, the DAIG determined that LTC F's email to COL JS constituted a protected communication that afforded him (LTC F) the appropriate protections under law from reprisal, contrary to the applicant's and counsel's contentions.
LTC Fs 6 June 2012 email communicated information that he believed evidenced a violation of law or regulation.
a. The email set forth a concern that CPT C did not appreciate the type of evidence necessary or the level of proof required to justify an administrative separation or the imposition of non-judicial punishment against a SGT accused of committing adultery. Counsel for the applicant even notes that this reflects, as best, a lack of competence to perform legal duties. Hence, this allegation by LTC F effectively alleged a violation of regulation, namely AR 27-26, paragraph 1.1. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation of the client.
b. The allegation that CPT C provided a sloppy legal review of an IG investigative report similarly implicates AR 27-26, paragraph 1-1. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation of the client. It also effectively alleged his failure to use due care which exhibits a lack of that degree of care which a reasonably prudent person would have exercised under the same or similar conditions.
c. The allegation CPT C did not pay enough attention in reviewing a report pertaining to an EO case described a violation of law and regulation. Again, failure to pay attention to detail describes a failure in exercising the competence required of a Judge Advocate under AR 27-26. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation of the client. Also, as counsel notes, this alleged failure demonstrated a negligent inattention to detail. This negligent inattention to detail constitutes a failure of an exercise of due care and therefore negligent dereliction of duty.
d. The allegation CPT C was late in reviewing and redacting documents under the Freedom of information act describes a violation of law. Contrary to counsels claim, the FOIA processing goals are not just goals they are mandated by Title 5, United States Code, section 552. Counsel states that, at best, this allegation demonstrates a less than optimal dedication to the job. Given the requirements for processing requests under FOIA, the also reflects a potential willful dereliction of duty in performing the tasks mandated by statute in a timely fashion
e. The allegation that CPT C withdrew from a conference without his higher headquarters permission alleges a violation of law. Specifically, this allegation demonstrates a possible willful dereliction of duty in failing to attend a required meeting.
11. Each of the allegations, then, in LTC Fs 6 June 2012 email alleged a violation of law or regulation. It is immaterial that the Professional Responsibility Branch, Office of the Judge Advocate General later closed the case against CPT C following a preliminary screening inquiry. This determination did not change the nature of the original protected communication.
12. LTC Fs communication to COL JS was a protected communication as it was given to an organization the 79th Sustainment Support Command Office of the Staff Judge Advocate within the chain of command. The SJA, COL JS, served as the legal advisor to the commander of the 79th SSC. The 311th ESC, CPT Cs command, was directly subordinate to the 79th SSC.
13. Counsel correctly notes that LTC F was required under Army Regulation 20-1 to file allegations of professional misconduct through the DAIG legal advisor to the senior counsel having jurisdiction over the subject lawyer for disposition. While this requirement existed and was not apparently followed, it does not change the nature of the protected communication by LTC F to COL JS. The email alleged a violation of law or regulation. It was filed with an organization within the chain of command, the 79th SSC SJA office. The 79th SSC was the superior command to the 331st ESC. As the SJA for the 331st ESC, CPT C fell within the chain of command of the 331st ESC as well as the 79th SSC.
14. According to the DOD Whistleblower Program, Guide to Investigating Military Whistleblower Reprisal and Restriction Complaints, there are four elements that must be established to make a finding of reprisal:
a. Element 1, Protected Communication: Did a Complainant make or prepare to make a protected communication, or was Complainant perceived as having made or prepared to make a protected communication?
b. Element 2, Personnel Action: Was an unfavorable personnel action taken or threatened against the Complainant, or was a favorable personnel action withheld or threatened to be withheld from Complainant?
c. Element 3, Knowledge: Did the responsible management official(s) have knowledge of Complainant's protected communication(s) or perceive Complainant as making or preparing protected communication(s)?
d. Element 4, Causation: Would the same personnel action(s) have been taken, withheld, or threatened absent the protected communication(s)?
15. As noted above, LTC F made a protected communication within the meaning of DoDD 7050.06. Initially, the applicant supported LTC Fs request for an extension to serve a fifth year as the IG. Following his communication with COL JS, she changed her recommendation in August 2012, effectively denying his request. By her own admission, the applicant knew when she made that decision that LTC F had communicated the allegation concerning CPT C to COL JS.
16. Element 4 is the "acid test" for examination of an alleged retaliation for protected communication referred to in paragraph 7b above. With respect to this element, the applicant notes in her contentions that there were several factors that played into her decision to deny LTC F's request for a 5th year extension request, not solely (but not excluding) the email sent by LTC F to COL JS. She provides evidence that identifies other factors that contributed to her decision; however, in numerous instances in numerous documents, she and her counsel admit that the protected communication, at least in part, was considered and played a role in her decision to deny LTC F's 5th year extension. This alone places her in violation of 10 USC § 1034 and afoul of Army policy.
17. Neither the evidence of record nor the applicant's provided evidence substantiates her, and her counsel's, contention that there was an improper application of the law and governing regulation in reaching the substantiated finding in the first place. The evidence she provides does not lead to a different conclusion. Nothing she or her counsel provides shows the IG investigation was inadequate or tainted by the lack of evidence or thoroughness, failure to pursue logical investigative leads, and/or conclusions that were open to challenge based on the evidence provided.
18. The ABCMR is not an investigative agency. Likewise, the ABCMR does not normally reexamine issues of guilt or innocence under UCMJ or issues whether an investigation was substantiated or unsubstantiated by an investigator, such as an IG. This is the commanders or directing authority's function and it will not be upset by the ABCMR unless the determination is clearly unsupported by the evidence. Here, the applicant was fully aware and was informed of the IG investigation, was afforded the opportunity to submit supporting documentary evidence, and was afforded the opportunity to testify. She was also afforded the opportunity to appeal the DAIG's finding through the proper channels. She appealed the finding but her appeal was denied.
19. The key issue here is not whether the IG investigation was flawed or whether the substantiated finding was supported by the evidence. The key issue is that IG records, including the applicant's ROII and allied documents, are properly filed. The purpose of maintaining IG records is to protect the interests of the Army and the Soldier. In this regard, the IG database maintains an unbroken historical record of IG functions and activities as they relate to Soldiers, including records of inspections, assistance, investigations, and teaching and training.
20. There is no documentary evidence that states the applicant was removed from her duties as the USARC CIG, even though that appears to have been the case. Likewise, there is no evidence of any derogatory information related to this investigation or any IG investigation in her OMPF.
21. A record of the DAIG ROII for the complaint filed against her exists in the DAIG database; however, neither she nor her counsel has demonstrated the ROII is unjust or untrue, is in error, that it should be removed from the IG database, or that removal would be in the best interest of the Army. Therefore, she is not entitled to relief in this case.
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) AR20110023512
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ABCMR Record of Proceedings (cont) AR20150001565
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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. Upon review the DAIG determined that the evidence did not support the two findings that were substantiated by NGB-IG. 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...
ARMY | BCMR | CY2014 | 20140006076
The advisory official's key points of emphasis include * the NEARNG requested a determination by the AGDRB of the highest grade satisfactorily served by the applicant * the AGDRB determined the applicant's service in the grade of COL was unsatisfactory based on the fact that the applicant was relieved from brigade command * the applicant received selection of eligibility for promotion to BG (O-7) on 5 August 2010; however, he did not serve as a BG and could not meet the statutory TIG...