MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 March 2001
	DOCKET NUMBER:   AR1999024027

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Thomas E. O'Shaughnessy, Jr.		Member	
	Mr. Richard T. Dunbar		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                       records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of his earlier appeal to correct his records by, in effect, promoting him to lieutenant colonel and showing that he is entitled to retirement by virtue of 20 years of active federal service, by correcting his officer efficiency reports (OERs) and by expunging all adverse actions and derogatory information, including any taken by The Army Judge Advocate General and by reversing the Inspector General’s (IG) findings.

APPLICANT STATES:  In effect, that any adverse action taken against him including the OERs were the result of reprisals by superiors to his Whistleblower activities.  He contends that any action taken against him by Federal authorities or under Federal regulations are null and void because he, in his Active Guard and Reserve (AGR) position was part of the state militia, his status had not been federalized and he was not subject to federal rules or disciplinary action.  The Judge Advocate General’s (TJAG’s) actions are in violation of the applicable sections of the United States Code.  He argues that the Army Regulation (AR) 27-26, The Army Rules of Professional Conduct, did not apply to him because of his status as a non-federalized member of the state militia and that the program was specifically designed by Congress to be controlled by the several states and free of federal control.  He avers TJAG had no supervisory authority over him and that any investigation into his behavior was improper.  He also avers that the appointment of an Army Reserve officer to investigate his activities violated the Posse Comitatus Act (18 USC 1385), which precludes using the military for law enforcement.  He contends that he was subject only to Oregon law and that he was deprived of his rights under Oregon law.  The applicant believes that the OERs should be expunged because there was an improper rating chain.  He contends that Department of Defense Inspector General (DOD IG) findings should have shown that he was the victim of reprisals under the Military Whistle-blower Protection Act.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR1998012429) on 17 February 1999.

On 24 January 1994 the applicant filed a complaint with the Department of Defense Inspector General (DOD IG) alleging that he was the victim of reprisals because he had disclosed misconduct on the part of his superiors.
 
In a 2 December 1994 memorandum the Acting Chief Standards and Conduct Office, Office of The Judge Advocate requested the Judge Advocate, Guard and Reserve Affairs appoint a preliminary screening officer to investigate the applicant’s conduct.  The cited authority was TJAG’s responsibility under Army Regulation 27-1, chapters 7 and 8, for the professional fitness of National Guard Judge Advocate officers.  The applicant had been accused of making public statements about the legal advice given to clients, making false statements during investigations, improperly accessing police computer records to keep people out of the Oregon National Guard and to find discreditable information on his superiors, conflicts of interest by acting as counsel for two individuals and subsequently taking administrative action against them, and a possible Privacy Act violation by providing the transcript of an elimination board to local authorities after the subject soldier’s family members had testified that certain illegal drugs actually belonged to them. 

On 1 March 1995 an Oregon Circuit Court judge ruled that the Oregon Bureau of Labor and Industries (BOLI) had jurisdiction to hear the applicant’s petition for redress.  The BOLI had contended that it did not.

On 11 July 1995 the applicant signed an agreement with the Oregon National Guard to the effect that:  (1) The applicant would withdraw his DOD IG Whistleblower request.  However, he was authorized to respond to any inquiry made to him by the DOD IG.  (2) He also agreed that he would withdraw his Oregon BOLI case.  (3) He further agreed to give up any and all future claims against the Oregon National Guard but was not precluded from applying to this Board or responding to The Judge Advocate General on questions relating to the Standard of Conduct Office investigation already in progress.  (4)The Oregon National Guard was to withdraw its request to withdraw the applicant’s federal recognition and (5) agreed to drop any court-martial charges and waived the right to file any additional charges.  (6) The applicant acknowledged that a completed investigation established grounds for the court-martial charges and for seeking the withdrawal of his federal recognition.  (7) The Oregon National Guard was to inform OTJAG, the Army, the National Guard Bureau and the OTJAG Bureau of Reserve and Guard Affairs that it was intended that the applicant would be permitted to retire as a major, effective 29 August 1995.  (8) The Oregon National Guard agreed to lift the administrative suspension of favorable actions and any other impediment to the issuance of a 20-Year Letter and take reasonable steps to insure that a 20 Year Letter was issued expeditiously following the applicant’s retirement.  (9) The applicant agreed to not attempt to reenter any branch of the military.  (10) The parties agreed to disclose the terms of the agreement to any inquiring parties but to make no other statement, or reveal, or discuss any of the facts, allegations or circumstances.

An 8 August 1995 letter from the Oregon National Guard Headquarters reported that it had reached an agreement with the applicant and, in accordance with that agreement, the applicant would be allowed to retire as major.

On 8 August 1995 court-martial charges against the applicant were withdrawn.

In a 14 August 1995 letter to the DOD IG the applicant withdrew case Number 94-L56477 and requested that no further action be taken.  However, he appears to have appended a six-page discourse that repeated his former accusations against various seniors and generally attributed his acceptance of the above settlement agreement as the result of the alleged reprisals against him. 

The applicant retired and was issued a 20-Year Letter in accordance with the agreement.

The Assistant Judge Advocate General issued the applicant a letter of reprimand on 11 December 1995 for violating professional standards for lawyers as set forth in AR 27-26 and a letter of decertification and suspension as counsel.

AR 27-1, Chapter 7 establishes the procedure for processing alleged or suspected violations of  (AR 27-26) Army Rules for Professional Conduct for Lawyers or other applicable ethical standards of Judge Advocates or civilian lawyers.  Chapter 8 deals with cases of mismanagement.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  There is no available evidence that the applicant was ever afforded Whistleblower status and no indication that he should have been.

2.  The fact that the applicant requests that he receive credit for active federal military service for the time he served in his AGR position and that he asks this Board to credit him with 20 years active federal (including those AGR years) demonstrates, to the satisfaction of this Board, that he does not really believe that he was subject to only Oregon law and supervision.

3.  TJAG has the responsibility and authority to determine the qualifications of Army lawyers.  Their professional and personal conduct in any capacity is relative to their fitness to serve.  The letter of reprimand and the applicant’s decertification and suspension as counsel, were clearly authorized, thoroughly investigated, well founded, and administratively correct.  There is no error or injustice involved.

4.  There is no available evidence that the applicant has exhausted the available administrative remedies relative to the OERs.

5.  This Board has no jurisdiction over actions taken by Oregon ANG officials under Oregon law.

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__EMW_  __TEO  __  __RTD__  DENY APPLICATION

        Carl W. S. Chun
      Director, Army Board for Correction 
      of Military Records

 
INDEX

CASE ID	AR1999024027	
SUFFIX		
RECON		
DATE BOARDED	20010315	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.03	
2.	128.14	
3.	134.02	
4.	136.00	
5.		
6.