IN THE CASE OF:	  

		BOARD DATE:	  11 June 2015

		DOCKET NUMBER:  AR20150003964 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

	a.  repeal and expunction of two substantiated allegations of reprisal in the Department of the Army Inspector General (DAIG) Report of Investigation (ROI) Case DIH 11-XXXX;

	b.  reinstatement to the Fiscal Year (FY) 2012 Colonel (COL) Army Promotion List (APL) Reserve Component (RC) (Non-Active Guard Reserve (AGR)) Promotion Selection Board (PSB) list;

	c.  promotion to COL with an effective date of 1 April 2013;

	d.  reinstatement to the Calendar Year (CY) 2014 COL Command Assignment Selection Board (CASB) selection list or current list with equivalent order of merit;

	e.  selection for brigade-level command equivalent to the 2300th Military Intelligence (MI) Group; and

	f.  appearance in person before the Board.

2.  The applicant states:

	a.  The IG substantiated allegations that he reprised against a subordinate officer due to knowledge of protected communication (PC).  This conclusion is false.  His decision to render a less than favorable evaluation and reassign a subordinate officer – although personally unwelcome – was predicated solely by performance which did not meet the standard.

	b.  Responsibility for the absence of additional earlier written counseling, albeit problematic due to Soldier unresponsiveness, coupled with operational conditions is, however, exclusively his.

	c.  As evidenced by performance over time in numerous settings, it is neither his nature nor his practice to reprise or unfairly deprecate.  He has nevertheless integrated lessons learned from this experience into his current leadership and mentoring praxis.  Respecting each Soldier's need for dynamic, thoughtful, and selfless leadership, he continues to set and enforce high standards in accordance with the Army Values, endeavoring always to build esprit and engender élan through willing dedication and shared sacrifice.

	d.  For the past 40 months since battalion command, he has been privileged to serve in two distinct capacities:  Operations Officer for the U.S. Army Reserve (USAR) Counterterrorism Unit preparing the interagency Foreign Emergency Support Team for deployment and Deputy Chief of Staff for Plans with the 84th Training Command supporting transformation of collective training of all USAR units.

	e.  Striving to set an example across the five dimensions of fitness – physical, social, emotional, family, and spiritual – his commitment to the Army, USAR, and all Soldiers is unwavering.

3.  In a letter, dated 17 February 2015, he states:

	a.  Two counts of reprisal have been alleged due to knowledge of PC:  an unfavorable officer evaluation report (OER) and relief from duty.  Between 26 August 2010 and 29 March 2011, Major (MAJ) Z____ made six PCs to the chain of command.  All of which were found without merit with the exception of the reprisal allegation.

	b.  Neither the fact nor substance of these PCs influenced his actions.  MAJ Z____ was a valued member of his command and that is exactly how she was treated.  She was competitively selected by him for the dual role of Company Commander/Analysis and Control Element Chief, the third most responsible position in his battalion.  He afforded her every opportunity to succeed.

	c.  MAJ Z____ chose not to follow his directives on multiple occasions.  He gave MAJ Z____ verbal one-on-one counseling, typically within a 30-day window of the identified deficiencies.  First-person observation of all collective training events, along with his command sergeant major, coupled to mounting negative feedback from the battalion staff.  Once it became clear that her lack of will was the causative factor, he initiated formal written counseling.

	d.  The reported tension between him and MAJ Z____ as cited by witnesses is objective evidence that she was not only aware of identified performance deficiencies, but also afforded ample opportunity to take corrective action.

	e.  A center-of-mass OER (with Best-Qualified/Must-Promote blocks both checked) assessing "occasionally took the initiative" was warranted.

	f.  Reassignment – not relief as alleged – to a non-key developmental (yet still valid, authorized, and assigned) MI billet was also warranted.

	g.  Other under-performing personnel were given similarly appropriate counseling.

	h.  Officers with a self-assessed contentious relationship with him unanimously found that they were also not reprised against.

	i.  Unfortunately, the IG-developed chronology of events was limited by available evidence and consequentially devoid of significant training milestones, associated performance deficiencies, and critical causal linkages.  New evidence demonstrates that PC followed performance feedback in every instance – not the obverse.

4.  He further states:

	a.  PC should not inoculate poor performance.  The IG findings fail to take this into account and neither explain the prior motivation behind MAJ Z____'s numerous PCs nor actions on his part which, when viewed from the perspective of the DAIG, are otherwise incoherent.  Suggesting that he reassigned MAJ Z____ based upon a "challenge to his leadership, character, and authority as a commander" while simultaneously requiring toleration of these very same challenges, to explain absent written counselings – which theoretically would exonerate culpability for the less than favorable OER – is inconsistent reasoning.  During his tenure, the transformative program, which together with his leadership team, brought the 323rd MI Battalion from the worst of 11 Military Intelligence Reserve Command battalions to within the top 1 or 2.

	b.  The standard for substantiating reprisal is "a preponderance of evidence" – anything less than 50 percent – a threshold even DAIG admits to be low.  The investigating officer (IO) and civilian investigator state, "Because a less than positive OER did occur after a protected communication, I concluded a de facto reprisal occurred, but this is to mean that there was no evidence of intent on [Applicant's] part for this to occur.  I think given the weight of the evidence, [Applicant] should not be held to have intended what appeared to be a reprisal OER to occur, in light of the established friction between he [sic] and the complainant, prior to the complainant making her protected communication, and in light of his established prior efforts to counsel the subordinate."

	c.  Unfortunately, a low bar for substantiation, combined with a DAIG modus operandi of mapping collected data into a preconceived academic model of reprisal, ignored or missed much relevant evidence resulting in their unfavorable determination.  The preponderance of culpatory information which was collected stemmed from hearsay of complainant's peers with self-assessed contentious relationships with him – many of whom were interviewed at the request of MAJ Z____.

	d.  His appeal to the Department of Defense IG (DODIG) attempted to clarify and correct this injustice by presenting 12 fully-deliberated memoranda for record from commissioned and noncommissioned officers of every grade with specific, credible, and directly relevant first-hand evidence not previously known or considered in addition to other unconsidered documentary evidence, doubling the available testimonies from additional witnesses.

	e.  The DODIG Directorate for Whistleblower Reprisal Investigations – which was the only recourse for appeal and who not incidentally had endorsed the original DAIG investigation findings – appeared from his perspective to exhibit a cognitive dissonance in refusing to correctly weigh objective evidence demonstrating a causal timeline of events at odds with their preconceived, albeit non-causal, reprisal timeline.

	f.  Although the ultimate result of the Department of the Army Promotion Review Board (PRB) process was his removal from both COL promotion and command selection, the PRB itself, which had time to review his entire file, made a favorable determination explicitly recommending his promotion.  This decision was apparently modified in the post-board staffing process to the Secretary of the Army.

5.  The applicant provides a table of contents identifying numerous enclosures.  He also provides a compact disc with a copy of his supporting documents/enclosures.
CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the USAR in the rank of LTC.

2.  DAIG ROI Case DIH 11-XXXX shows a subordinate officer filed a complaint in February 2011 alleging whistleblower reprisal in that the applicant improperly rendered her an unfavorable OER and improperly relieved her of her duty position in reprisal for a PC.  An investigation was conducted.  The IO found the allegations were substantiated.  The Deputy IG approved the ROI findings in July 2013.

3.  In December 2013, the applicant appealed the DAIG ROI substantiated findings for the two allegations of reprisal.  In June 2014, the DODIG determined he did not provide any new or compelling information to warrant reopening the investigation or changing the conclusions.

4.  On 21 August 2013, the CY14 COL RC Troop Program Unit CASB selected him for command.  However, as a result of DAIG Case DIH 11-XXXX, his selection was referred to a General Officer Review Board (GORB).  It appears the GORB did not approve his selection for command.

5.  In January 2014, the RC PRB recommended the applicant for promotion to COL.  His records were referred to a Department of the Army PRB for reconsideration of his promotion status.

6.  On 8 May 2014 following reconsideration of his promotion status by the Department of the Army PRB, the Secretary of the Army directed his removal from the FY12 COL RC (Non-AGR) APL PSB.

7.  He provided numerous letters of support from Soldiers (general officer ranks and below) attesting:

* to his good character and duty performance
* it is not consistent with the applicant's character or performance that he would have improperly reprised against MAJ Z____
* the applicant had grounds to negatively evaluate MAJ Z____ for failing to adhere to his stated intent
* there was ongoing friction between the applicant and MAJ Z____
* DAIG Case DIH 11-XXXX should be reevaluated

8.  Army Regulation 20-1 (IG Activities and Procedures) prescribes policy and procedures concerning the mission and duties of the IG.  The IG records are protected documents that contain sensitive and confidential information and advice.  DAIG 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, IG Network data, or other computer automatic data processing files or data, to include IG notes and working papers.

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

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

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

9.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) governs operation of the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows an investigation was conducted based on a complaint from a subordinate officer alleging whistleblower reprisal in that the applicant rendered her an unfavorable OER and he improperly relieved her of her duty position in reprisal for a PC.  The IO found the allegations against the applicant were substantiated and the findings were approved in July 2013.

2.  The applicant contends the IG substantiated allegations that he reprised against a subordinate officer due to knowledge of PC is false.  His decision to render a less than favorable OER and reassign a subordinate officer was predicated solely by her performance which did not meet the standard.

3.  The applicant's contentions and letters of support were carefully considered.  However, there is no evidence showing the investigation was erroneously conducted.  Without evidence to the contrary, it appears the IO made a proper determination that substantiated allegations that the applicant rendered an unfavorable OER to a subordinate officer and improperly relieved her of her duty position in reprisal for PC.  Therefore, there is an insufficient basis for granting the applicant's request to repeal or expunge the two substantiated allegations of reprisal in DAIG ROI Case DIH 11-XXXX.

4.  His requests for reinstatement to the FY12 COL APL RC (Non-AGR) PSB list and CY14 COL CASB selection list and promotion to COL were noted.  However, the evidence shows the Secretary of the Army removed him from the COL PSB list on 8 May 2014 within his discretionary authority.  There is no evidence of error or injustice associated with the Secretary of the Army's decision.

5.  His request for selection for brigade-level command equivalent to the 2300th MI Group was considered.  However, there is no evidence of record and he provided no evidence showing he was again selected for command after January 2014.

6.  His request for a personal appearance hearing was also carefully considered.  By regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision in his case.  Therefore, a personal appearance hearing is not warranted to serve the interest of equity and justice.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________x______________
                  CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20150003964



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ABCMR Record of Proceedings (cont)                                         AR20150003964



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