PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           26 May 1999 
	DOCKET NUMBER:   AC93-07387B
   AR1999025574

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

	Mr. Loren G. Harrell		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. Calvin M. Fowler		Member	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Ms. Celia L. Adolphi		Member	
	Ms. Karol A Kennedy		Member	

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

	The applicant did appear before the Board and was represented by counsel.

	The Board considered the following evidence:

Exhibit A - Application for correction of military records
Exhibit B - Military Personnel Records (including advisory opinion, if any)
Exhibit C - Case Summary
Exhibit D - Live testimony and any evidence introduced during the hearing

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that the General Officer Memorandum of Reprimand (GOMOR) he received from the Vice Chief of Staff, Army (VCSA) is without legal foundation and should be removed from his official military personnel file (OMPF) and that he should be advanced on the retired list to the rank of brigadier general.

3.  The applicant states, through counsel, that the minor allegations of misconduct, which were substantiated by a DAIG investigation, led to an inappropriate GOMOR from the VCSA which resulted in his nomination for Federal recognition as a brigadier general to be permanently withdrawn.  His authorization of single pilot flights of Oklahoma Army National Guard (OKARNG) aircraft, while serving as the State Aviation Officer, and alleged improper use of an official Army vehicle resulted in no injury, loss of life, or loss of State or Federal funds.  There are no facts to support any personal or monetary gain by him.  Counsel states that the applicant exercised his authority and judgment under ARNG regulations and standard vehicle use practices within the State.

4.  Applicant, through counsel, reiterates his earlier contentions concerning the appropriateness of the DAIG and the VCSA using Army regulations as the sole basis for their findings and not including a review of the appropriate ARNG and State policies as discussed in his rebuttal to the GOMOR and as recommended by his chain of command.  Counsel also believes that inappropriate weight appears to have been given the legal opinion provided by TJAG.  In counsel’s view the case does not rest on the legal merits of whether the VCSA had authority to issue a GOMOR in the circumstances provided but rather on the adequacy of the investigation of the facts and circumstances of the alleged violations.

5.  The applicant’s military records show that at the time of the DAIG investigation the applicant was serving as Assistant Adjutant General in the rank of brigadier general (OK), Adjutant General, OKARNG with a date of rank of 28 October 1988.  On 10 February 1989 his name was approved by the President for forwarding to the Senate for confirmation and Federal Recognition as a brigadier general, Adjutant General Corps.

6.  On 10 March 1989 the Vice Chief of Staff, Army (VSCA) directed the DAIG to conduct an investigation of improprieties on the part of the applicant.  The DAIG was to review the investigation by the OKNG-IG, which had substantiated two allegations, and conduct an investigation of subsequent allegations concerning the applicant.

7.  On 21 March 1989 the Secretary of the Army recommended that the applicant’s name be withdrawn from the President’s recommended list prior to forwarding the list to the Senate.  The recommendation was based on the ongoing DAIG investigation.  On 11 May 1989 the Senate confirmed the promotion and authorized Federal Recognition to the other ARNG officers nominated by the President.  The applicant’s name was not on the list.

8.  The DAIG notified the applicant on 23 April 1990 that the investigation into allegations against him was complete and that two of the twelve allegations were substantiated.  It was determined that he had violated flight regulations concerning instrument flight rules for Cessna 310 aircraft operated by the OKARNG and that he had used an Army sedan for unofficial purposes.  The report had been approved by the VCSA.

9.  The applicant was issued a GOMOR by the VCSA on 6 June 1990 based on the results of the DAIG investigation that he exercised poor judgment while serving as the State Aviation Officer OKARNG.  The VCSA specifically cited the applicant’s improper authorization of single pilot flights under forecast instrument meteorological conditions (IMC) and improper use of an Army sedan for domicile-to-duty travel.  The applicant submitted an appeal to the VCSA along with a supporting statement from the State Adjutant General.  On 9 August 1990, after review of the applicant’s rebuttal, the VCSA determined that the acts of misconduct were substantiated and directed filing of the GOMOR in the applicant’s OMPF.

10.  The chief of the National Guard Bureau notified the Oklahoma Adjutant General on 5 October 1990 that the Secretary of the Army had permanently withdrawn the applicant’s general officer nomination based on the nature of the reprimand from the VCSA.  It was also stated that if the necessary waivers for time in service were approved, the applicant could be considered again for promotion to general officer.  On 1 May 1991 the Department denied his request to remove the GOMOR from his OMPF but did direct that it be transferred to the restricted portion of his OMPF.  The applicant was relieved of his duties as Assistant Adjutant General on 30 May 1991 and his State promotion to brigadier general was rescinded.

11.  Effective 30 May 1991 the applicant was separated from the OKARNG and transferred to the USAR Reinforcement Control Group in the grade of O-6.  The reason and authority cited was the expiration of authorized period in a retained status beyond his MRD.  Since he had been in a retained status as an O-6 until 16 July 1989 he should have been immediately transferred to the Retired Reserve effective the date his promotion to brigadier general was rescinded.  It appears from the available record that he was transferred to the Retired Reserve effective 17 June 1992, his date of eligibility for retired pay.

12.  On 30 March 1994, this Board denied the applicant’s original request for removal of the GOMOR from his records and showing that he received Senate confirmation for appointment as a Reserve of the Army brigadier general with retirement in that rank.  The Board concluded that the VCSA had approved the DAIG findings, which substantiated the two counts of misconduct, and that it was a legally sufficient basis for the GOMOR and the permanent withdrawal of his nomination for promotion.

13.  Title 31, USC, section 1344 provides that passenger vehicles of the US Government are to be used for official purposes only.  Official purposes does not include transportation between domicile and place of employment unless the individual is performing field work requiring transportation between domicile and place of employment and has been approved by the agency head and will be authorized only to the extent that such transportation will substantially increase the efficiency and economy of the Government.

14.  DOD Directive 4500.36.R states that the Agency Head must approve in writing those positions authorized for “field work”.  It also states that even military recruiters will only be approved for domicile to duty transportation when it is determined to be infeasible or impractical for them to first proceed to the location where the vehicle is normally garaged.

15.  Army Regulation 58-1 provides that administrative use government vehicles are authorized for transportation between domicile and place of employment for personnel engaged in “field work” when their duties require transportation and approval is given by the Secretary of the Army.  It is also stated that this authority may not be further delegated.

16.  National Guard Regulation (NGR) 58-2 governs the management of administrative use vehicles by ARNG full time recruiters as required by Secretary of the Army Determination DA 5D-78.  That determination permits domicile to duty privileges for ARNG full time recruiters while engaged in “field work”.  State supplementation is prohibited without prior approval of the Chief, National Guard Bureau.  The regulation does not discuss provisions for “occasional use” domicile to duty authority for personnel not employed as full time recruiters performing “field work”.

17.  Discussions with personnel from HQDA, Office of the Deputy Chief of Staff for Logistics, proponent for AR 58-1, revealed that the Secretary of the Army retains authority for domicile to duty approval of administrative use vehicles and it can not be further delegated.  It was also stated that the regulation is purposefully silent on the issue of occasional domicile to duty of administrative use vehicles of other personnel when it is determined infeasible or impractical to do otherwise because the law does not authorize it.
18.  Army Regulation 95-1 establishes procedures and rules for operation of Army aircraft.  It applies to all Army Aircraft systems to include aircraft on loan, lease, and bailment to the Army, the Army National Guard, and the Army Reserve.  The regulation then in effect groups aircraft in categories with similar operating and handling characteristics.  The OV-1A, B, and C are in a group as are the OV-1D and RV-1D in a group.  The U-3A and B are also in a separate group requiring separate qualifications and currency requirements.  The Cessna 310 aircraft in use by the Oklahoma National Guard had a military designation of U-3A.  The regulation also states copilot requirements.  It states that two aviators current in the aircraft category being flown are required for flights in forecast instrument meteorological conditions (IMC).  This requirement is only waived for OV-1 and RV-1 airplanes.

19.  NGR 95-1 provides supplemental policies to AR 95-1 for the ARNG.  It states that a minimum of one pilot and one copilot is required for all flights in cargo, utility, and attack aircraft except where an emergency or mission-essential operation dictates otherwise and the operators manual permits single pilot operation.  It also states that the copilot requirement for flights into forecast IMC is met when the copilot has a current FAA commercial pilot certification with airplane multi-engine and airplane instrument ratings.

20.  Information provided by the aviation standardization office of the NGB revealed that the copilot requirement for forecast IMC operations was not superseded by the single pilot provision for emergency or mission essential operations.  In fact, the latest version of the regulation omits any reference to a waiver for specific aircraft to be flown in forecast IMC with only a pilot and there is no waiver for single pilot operations for maintenance test flights or emergency operations.

21.  On 3 February 1999 the Board was provided a redacted portion of the DAIG Report of Investigation (ROI).  It identified two substantiated allegations from the OKNG-IG investigation.  The first involved violation of flight regulations concerning instrument flight rules (IFR) for the Cessna 310 aircraft.  The DAIG investigators interviewed three OKARNG aviators and the applicant and concluded that single pilot flights under forecasted IMC took place.  The second substantiated allegation was that the applicant had used an Army sedan for unofficial purposes.  The fact that the applicant used an Army sedan for duty-to-domicile travel while not in a TDY status was considered adequate to substantiate the allegation.

22.  The evidence available in the redacted portion of the DAIG ROI consisted of interviews of staff officers and two OKARNG aviators.  In conflicting testimony the pilots stated that they flew single pilot IFR missions which they knew were not authorized and falsified their logbooks.  The applicant stated that he did not know of a specific incident authorizing single pilot flight in forecast IMC but that, over the  10-year period in question, he had possibly authorized some single pilot IFR flights.
23.  The commander of the unit responsible for the aircraft stated that, although the aircraft was designed to be flown with a single pilot for IFR flights, he was not authorized to allow single pilot IFR flights, nor did his pilots fly that way.  He thought that single pilot IFR flights had occurred when a pilot got caught in bad weather and needed to get back in.

24.  The evidence presented by the DAIG to support the violation of domicile-to-duty use of an Army motor vehicle consisted of the regulatory authority contained in Law and regulations and not being subject to interpretation.  The fact that the applicant was not a full time recruiter, and had an Army sedan at his residence when not in a TDY status substantiated the allegation that he used an Army sedan for unofficial purposes.  The fact that the State Adjutant General considered this use as official business and condoned the practice does not negate the regulatory authority.

25.  On 26 May 1999 the applicant was granted a personal appearance hearing before the ABCMR, sitting in formal session.  In sworn testimony before the Board the applicant, and witnesses testified that there was not one proven incident when the applicant was shown as having approved single pilot flight of the Cessna 310 aircraft in forecast IMC, only for mission essential purposes which may have later developed into IMC.  As the State Aviation Officer he was not in the practice of approving individual flight plans.  That was the responsibility of the flight operations officer and safety concerns were reported to the aviation safety officer.  He did not micro-manage the program of flight operations.  The Army regulation and the National Guard supplement both authorized single pilot flight of this aircraft where an emergency or mission essential operation dictates.

26.  The State Aviation Safety Officer testified under oath that he was not aware of a single incident when the Cessna 310 aircraft was flown in forecast IMC and if there had been a report of this it would have been sent to him.  As a Federal Aviation Administration employee involved in pilot and aircraft certification he knew the aircraft to be safe and certified for single pilot IFR flight.  However, that was not authorized in Army operations and he never operated the aircraft in known IMC.  No issue like this was ever raised until the applicant was appointed as the Assistant Adjutant General.

27.  The State Adjutant General, now retired, testified that he was never aware of any incident or report of single pilot flight of the Cessna 310 in forecast IMC.  He was a frequent passenger on the aircraft because it was an administrative use aircraft not a tactical aircraft.  He also testified that in the National Guard commanders are responsible for strength and recruiting.  The applicant was responsible for recruiting aviation personnel and, like unit commanders, made recruiting trips around the State.  He had always been aware that when it was more efficient to travel from a residence for a recruiting visit the sedan was taken home.
28.  The State Operations Officer testified that he was never aware of any Cessna 310 flights into forecast IMC but he would not necessarily have been aware if one had taken place and not been made an issue of as a mission concern.  He had been called as a witness by the DAIG and felt the encounter was very confrontational.  It appeared that with all the anonymous allegations made against the applicant the DAIG was convinced that there must be a problem.  As a former commander he was very aware that Army sedans were taken home when it provided a more efficient use of time and resources.  It was not questioned or considered an unauthorized use until the applicant was assigned as the Assistant Adjutant General.  He did not believe that officials of the OKNG drove Army sedans to their residence since the investigation.  Everyone is more cognizant of public scrutiny and the need to live in an absolutely politically correct world.

29.  The office of the Judge Advocate General has opined in previous cases that this Board is empowered to change records of the Department of the Army and has no jurisdiction to change state records of the ARNG.

CONCLUSIONS:

1.  The Board found insufficient evidence of record to support a finding of fact that the applicant inappropriately authorized or was personally aware of single pilot flights of OKARNG Cessna 310 aircraft in forecast IMC that were directly in violation of applicable Army regulations.

2.  While the applicant may have violated the technical tenants of Army regulations by parking a Government motor vehicle at his residence on nights before he made official recruiting trips, he did not use the vehicle for personal use.  Additionally, the Board finds sufficient evidence that he saved Government funds and resources by driving to and leaving his private vehicle at the State motor pool and returning to his home in a government vehicle the night before traveling on official Government business. The Board also noted that the State Adjutant General testified that he was fully aware and condoned this practice for many of his officers as an efficient use of his resources.

3.  There was absolutely no corroborating evidence to support the DAIG finding that the applicant was aware of or authorized OKARNG personnel to fly single pilot flights in forecast IMC in the Cessna 310 aircraft.  The evidence of record does show that he acknowledged to the DAIG that he was of the opinion that he had the authority to authorize such flights.

4.  While not criticizing the DAIG investigators, the majority of the Board was of the strong opinion that, due to the climate in the OKARNG concerning prior and ongoing investigations, the applicant may have been a victim of circumstances and, as a matter of equity, it is unjust to penalize him for a purely technical violation.
5.  Accordingly, it would now be appropriate, in so far as the Department of the Army is concerned, to correct his records as recommended below.

RECOMMENDATION:

1.  Although the Board has no authority to correct ARNG records governed under Title 32, USC, the Board is of the opinion that, in so far as the Department of the Army is concerned, it would be in the interest of justice, and as an exception to policy, to correct the applicant’s records as recommended below:

	a.  by removing from the OMPF of the individual concerned the GOMOR dated 6 June 1990 and all documents related thereto;

	b.  by voiding the NGB order dated 14 June 1991 that withdrew his Federal Recognition and directed his transfer to the USAR;

c.  by voiding the OKARNG order that rescinded his promotion to brigadier general, Adjutant General and that separated him from the ARNG by reason of termination of Federal Recognition and transferred him to the USAR Ready Reserve Control Group;

	d.  by resubmitting his name for Senate confirmation and Federal Recognition with an appropriate effective date as if the GOMOR was never issued at the conclusion of the DAIG investigation and;

	e.  by showing that he remained a member of the OKARNG and, if confirmed,  authorizing and paying the individual concerned pay and allowances with appropriate retirement point credit as a brigadier general that he would have received for drills, and annual training through 30 June 1992 had he not been transferred to the USAR.

2.  That all of the Department of the Army records related to this case be corrected, if confirmed, by showing that he was transferred to the Retired Reserve and placed on the Retired List on 30 June 1992 in the rank of brigadier general and paying him the back pay to which he is entitled based on the additional retirement point credit provided by the ARNG and the promotion to a higher grade.

3.  That, in accordance with paragraph 21e, Army Regulation 15-185, following completion of the administrative correction directed herein, the proceedings of the Board and all documents related to this appeal be returned to the Board for filing.

DISSENT:  One member (Mr. Fowler) dissented from so much of the foregoing as pertains to resubmitting the applicant’s name for Senate confirmation and Federal Recognition as a brigadier general.  He would recommend that relief be restricted to removal of the GOMOR and all associated documents at this time as having served their purpose.  One member (Ms. Adolphi) dissented from so much of the foregoing as pertains to the effective date of rank if he receives Senate confirmation and Federal Recognition as a brigadier general.  She would recommend that his date of rank as a brigadier general be effective the date of his original retirement in grade O-6.

		___John D. Miller__
		        CHAIRPERSON

INDEX

CASE ID	AC93-07387B/AR1999025574	
SUFFIX		
RECON		
DATE BOARDED	19990526	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY		
ISSUES         1.	134.04	
2.	131.00	
3.	128.15	
4.		
5.		
6.