MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:  18 January 2001
	DOCKET NUMBER:  AR2000037856

	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. Carl W. S. Chun		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Melvin H. Meyer		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 Materiel 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:  Reinstatement on the FY97 colonel promotion selection list with all back pay and allowances, reinstatement on the FY99 colonel command selection list, and removal of all unfavorable information in his Official Military Personnel File (OMPF) and the Department of the Army Inspector General (DAIG) database.

APPLICANT STATES:  That the Secretary of the Army removed him from the FY97 selection list for promotion to colonel based on inaccurate information in the DAIG database.  He believes the decision was influenced based on incomplete and flawed IG investigations and inaccurate results from several investigations under Army Regulation (AR) 15-6.

The applicant states that a key person was not interviewed by either the Army Materiel Command (AMC) IG or the Industrial Operations Command (IOC) 
AR 15-6 investigation.  A separate AR 15-6 investigation from Eighth US Army (EUSA) concluded that he was not guilty of any criminal misconduct but the DAIG database does not reflect this.  The DAIG database states that he was formally counseled and admonished regarding this matter.  While that is a true statement, it was not accurate or complete and implies misconduct occurred.

He believes that the AR 15-6 investigations should have looked at the false statements made by the Navy Chief Petty Officer (CPO) and his wife for monetary gain, and the senior civilian employees at his former command with motives for revenge.

Furthermore, the Chief of Staff of the Army (CSA) and the Secretary of the Army (SA) were influenced by all the negative media publicity of several major scandals.  He was denied appointments with the CSA and the SA for an explanation of their removal action.  He was also denied a written request for reconsideration of their decision.

In support of his request he submits 38 tabbed enclosures.  A list of the enclosures is provided at the front of his application.  It includes his OMPF and other military records, various memoranda concerning his removal from the colonel promotion list and the command select list, redacted copies of the various IG and AR 15-6 investigations, a redacted copy of the DAIG investigation, and correspondence from his current command that support his request for reinstatement.

EVIDENCE OF RECORD:  The applicant's military records show:

At the time of the incident that led to his letter of admonishment he was serving in the pay grade of O5 with a date of rank of 1 May 1993 and serving as the commander of an AMC depot activity.

On 5 September 1995 an anonymous caller to the DOD IG alleged that the applicant had forced a Navy family out of their quarters at their own expense so his family could move in.  The Navy family called in the same complaint to the AMC IG, asking that the applicant receive a reprimand and that they be reimbursed for moving expenses.  In a 14 December 1995 letter from the AMC IG, the applicant was informed that an IG investigation had been concluded and that the allegation of abuse of rank and authority had been substantiated.  The letter also stated that the matter had been referred to the commander of the IOC for action.  On 20 December 1995 the applicant forwarded a request for a releasable copy of the AMC IG report.  Information provided by the release authority at the DAIG indicates that a redacted copy of the AMC IG report was sent to the applicant.  The applicant did not provide a copy of this investigation with his request for relief.

On 18 January 1996 an investigating officer (IO) from the IOC was appointed under AR 15-6 to investigate allegations that the applicant had improperly used his rank and position in a manner intended to coerce benefits for himself and his family in violation of regulations prohibiting such actions.  The IO began his investigation by requesting a copy of the sworn statement provided by the applicant to the AMC IG in the course of their investigation.  This was necessary because the applicant was now assigned in Korea.

The 19 March 1996 findings by the IOC IO stated that the applicant had violated regulations when he coerced the Navy CPO to move his family to different quarters so the applicant’s family could occupy them while he was on an unaccompanied tour in Korea.  The IO recommended that the applicant receive a letter of reprimand and be held financially responsible for the cost of the move by the Navy CPO.

In his sworn statement to the IO, the Navy CPO stated that he received a call from post housing concerning a possible move to different quarters because the applicant wanted his family to live there while he was in Korea.  His wife also received a call from the applicant’s wife.  He called back to post housing and stated that he did not want to move because of recent improvements he had paid for and the cost of the move.  Within the following week he started to receive calls from the applicant about “what it would take them to move”.  The Navy CPO again stated that he did not want to move for the reasons he had told post housing.

After several insistent calls the Navy CPO said he would agree to the move if a “dity move” could be arranged.  The applicant said he would try and, after finding out it could not be funded, agreed to provide boxes and a truck for the move.  This was not acceptable to the Navy CPO but he continued to receive calls from the applicant and post housing about the move.

His commander and his senior CPO eventually contacted him about the move.  The command master chief came to his house and informed him that the Navy commander had been getting calls from the applicant several times a day about moving quarters.  It was suggested that the Navy CPO “do the right thing”.  Both of them walked to the applicant’s house who immediately asked “So when can you be out of the house.”  The Navy CPO stated that he now felt that he had no choice but to move.

In his brief sworn statement the command master chief stated that he thought the move was a gentleman’s agreement and the applicant was to help with boxes and a truck.  The Navy CPO did not seem reluctant if he did not incur any unplanned expense.  After the applicant failed to provide any boxes or a truck the Navy CPO felt he had been treated unfairly by the applicant.  The command master chief stated that “Had I realized that (the applicant) had made a promise to (the Navy CPO) that was illegal for him to keep, I would have been reluctant to support (the applicant’s) request.  In retrospect, I feel the (Navy CPO’s family) were unfairly treated.”

The Navy CPO’s wife, the division chief for installation management, the civilian executive assistant and director for mission operations, the chief of family housing, and the chief of the engineering branch all provided sworn statements to the IO.  All of these statements show direct knowledge of the incident in question and relate a similar history of events.  It was apparent to all of them that the Navy CPO and his family did not want to move but felt pressured to comply.  They also relate that other empty quarters were available but the applicant did not like either the type of quarters or the location.  The AMC Deputy Chief of Staff for Engineering, Housing, Environment, and Installation Logistics was not interviewed during this investigation.

The chief of staff of the IOC approved the findings and recommendations and on 30 April 1996 the commanding general of the IOC forwarded the results of the AR 15-6 investigation to the applicant’s commanding general in Korea.  The commanding general of the Eighth US Army gave the applicant 10 days to provide a rebuttal to the AR 15-6 investigation.  On 15 June 1996 the applicant’s counsel provided a rebuttal requesting that the allegations be dismissed.  The suggested basis for dismissal was procedural error, possible biased testimony, and unsupported findings.  The enclosures to the rebuttal were not provided.

On 25 June 1996 the Eighth Army commander appointed an investigating officer under AR 15-6.  The purpose was to re-investigate the allegations against the applicant and the IOC AR 15-6 was to serve as the core of this investigation.  On 28 June 1996 the IO provided his findings and recommendations.  The IO found no basis in fact that the applicant had conspired to have the Navy CPO moved from his quarters and the allegation was unfounded.  During his investigation he was unable to contact the Commander of the Navy CPO or the AMC Deputy Chief of Staff for Engineering, Housing, Environment, and Installation Logistics.

In his written findings the IO gives more creditability to the “prudent and reasonable evidence included in the comprehensive rebuttal provided by (the applicant’s) attorney.”  “The immense volume of character support from seniors and subordinates,…also reflects the values and character of this officer…”  The IO also places significant weight to a letter from two union personnel at the applicant’s former command who cast doubt on the truthfulness of the witness statements as tainted with resentment for the applicant.

While the IO did not find sufficient evidence to indicate that the applicant had violated the Joint Ethics Regulation, he did find that the applicant had exercised poor judgment when he continued to pursue the Navy CPO’s quarters.  “I find that there was at least a perception by (the Navy CPO) and his family of coercion from his Navy chain of command.”  The perception of coercion within his organization, to his benefit at the expense of another family, was detrimental to his command.  The IO recommended setting aside the prior investigation recommendations but that the applicant be formally counseled and admonished regarding his exercise of poor judgment that created the perception of unethical behavior.

On 2 July 1996 the command judge advocate reviewed the investigation and recommended that the commander approve the report of the IO, admonish the applicant by signing the enclosed memorandum, and inform the commander of the IOC of the disposition of the case.  On 2 July 1996, the commander of Eighth US Army issued a memorandum of admonishment to the applicant for exercising poor judgment in obtaining quarters for his family.  The memorandum went on to say, “Despite the fact issues of possible coercion were raised, you continued to pursue the family quarters in question.  Your continued efforts, although technically falling within permissible bounds, created the perception that you were pursuing your own personal needs, and those of your family, over those of your command and those of an enlisted service member and his family.”

On 27 January 1998 the Total Army Personnel Command (PERSCOM) informed the applicant that he had been recommended for promotion by the FY97 colonel selection board.  He was also notified that his selection was being reconsidered based on information provided by the DAIG and reviewed by a General Officer Review Board.  The applicant was informed that his records and the DAIG report would be referred to a Promotion Review Board (PRB) for reconsideration of his selection for promotion.  He was provided 45 days to provide a rebuttal on why he should be retained on the promotion list.

On 12 March 1998 the applicant responded to the PRB.  The applicant pointed out that the initial AMC IG report and subsequent AR 15-6 investigation from the IOC initially substantiated an allegation of violating the Joint Ethics Regulation, but that a later AR 15-6 investigation conducted by Eighth US Army found no such evidence.  He was exonerated of the original allegations of illegal or unethical acts and issued an admonishment by the Eighth US Army commander for creating the perception that he placed his family’s concern above command considerations.

The PRB published its findings on 1 April 1998.  The PRB noted the results of the prior AMC IG report, the IOC AR 15-6 investigation, and the Eighth US Army AR 15-6 investigation.  They noted that the later investigation cleared the applicant of criminal charges but showed he had exercised poor judgment and was formally counseled and admonished by the commander of the Eighth US Army.  Based on his overall record, and the recommendation of his current commanding general, the PRB voted to retain him on the promotion list.

The results of the PRB were forwarded, through channel, to the SA for his decision.  The Deputy Chief of Staff for Personnel (DCSPER) and the Acting Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA) recommended retention.  The CSA recommended removal and the SA approved removal of the applicant from the promotion list.

On 30 April 1998 the PERSCOM informed the applicant that a post board screening process, following his selection for colonel command, resulted in referral of derogatory information from the DAIG.  His records and the DAIG information would be reviewed by a Command Review Board (CRB) for reconsideration of the selection decision.  He had 45 days to provide a rebuttal to the CRB.  The applicant provided the same rebuttal used for the PRB to the CRB.

On 24 September 1998 the PERSCOM informed the applicant that the SA had made the decision to remove his name from the colonel selection list.  On 12 November 1998 the applicant was informed by the PERSCOM that his name was removed from the colonel command list as a result of his removal from the colonel select list.  On 30 November 1998 the DA Suitability Evaluation Board notified the applicant that their preliminary determination was that a memorandum which removed him from the colonel select list and the colonel command list be filed in the performance portion of his OMPF.

On 14 December 1998 the applicant provided a memorandum to the SA requesting reconsideration of the decision to remove his name from the colonel select list.  He believed that the SA decision was influenced by inaccurate and incomplete information in a DAIG file and the SA had the authority to reverse his original decision.  He again based his request on the Eighth US Army AR 15-6 investigation that resulted in a recommendation that he was not guilty of misconduct, just that he had exercised poor judgment for the perception he had created.  His commander endorsed his request.

On 30 December 1998 the applicant responded to the DASEB action.  He requested that the DASEB action be deferred until his request to the SA for reconsideration was acted on.  He provided the DASEB a similar memorandum that he provided to the SA.

On 3 May 1999 the Office of the Deputy Chief of Staff for Personnel (ODCSPER) responded to the applicant’s request to the SA.  In this response the Director of Military Personnel Management (DMPM) informed the applicant that his request to remove information from his files had been disapproved.  "Nothing has Materielly changed in the file that the board (PRB) reviewed and was seen by the approval authority.”  The DMPM also noted that, absent additional information pertaining to the case, fraud, or a statutory violation, the SA was precluded from reversing a statutory decision.  He was notified that he could appeal to this Board.

In response to the applicant’s request to amend the DAIG database, the DAIG conducted a review of all available information and the applicant’s rebuttal to the SA.  A review of the AMC IG investigation revealed a preponderance of evidence that the applicant had applied pressure to persuade the Navy CPO to move out of his quarters so the applicant could move in.  A review of the AR 15-6 investigation by the IOC found the same violation.  A review of the AR 15-6 investigation by Eighth US Army revealed an investigation of limited scope, completed in 3 days, with an interview of three personnel including the applicant and his wife.  The IO found no evidence of a conspiracy but did find that the applicant exercised poor judgment when he continued to pursue changing quarters despite rumors of coercion.

The review also notes that the DAIG database is based on the AMC IG investigation, not the subsequent AR 15-6 investigations.  A review of these subsequent investigations failed to provide additional information that warrants a change to the original IG finding.  The DAIG review also looked at the statement provided by the AMC Deputy Chief of Staff for Engineering, Housing, Environment, and Installation Logistics.  This 13 June 1996 statement, which is neither sworn nor witnessed, states that he looked into a report that the applicant was forcing a Navy CPO to move from his quarters.  He talked with the applicant who said he would pay for a rental vehicle since government funds could not be used for this purpose.

He also called the Navy CPO to make clear that the move was not required unless it was voluntary.  The Navy CPO said it was a misunderstanding and he agreed to the move.  A legal review of all pertinent information resulted in agreement that the original findings should stand as substantiated.

On 11 June 1999 the applicant’s chief of staff forwarded a request to the DMPM for reconsideration by the SA.  This request notes the PRB recommendation and the continued possibility that the SA decision was a mistake based on a misperception of the DAIG database information.  On 6 July 1999 the DMPM responded to the applicant’s chief of staff.  This response notes that the case will not be referred again to the SA and that the PRB and other staff only make recommendations, the SA makes the final decision.

On 28 July 1999 the PERSCOM was notified to place a memorandum in the applicant’s OMPF concerning his removal from the colonel select list and the colonel command list.

On 24 August 1999 the applicant sent a request to the staff of the SA requesting an appointment with the SA under the Army open door policy.  In a 2 September 1999 memorandum, the military assistant to the SA informed the applicant that the SA would not meet with him at that time to discuss that subject.  He was recommended to submit an appeal to this Board.

On 15 September 1999 the applicant sent a memorandum to the SA requesting that the SA provide the applicant a written response on the reason he was removed from the colonel select list.  The applicant states that this information is necessary for him to appeal the decision to this Board since the SA decision is contrary to the findings of the last AR 15-6 investigation, the PRB recommendation, and the recommendation of the Army Staff.  He requests that he be provided this information expeditiously to complete his application to this Board.  The applicant states that he did not receive a response to this request.

In the processing of this case an advisory opinion was provided by the ODCSPER.  The opinion noted that the SA personally made an informed decision to remove the applicant from the colonel select list in accordance with all laws, policies, and established procedures.  The SA had complete information concerning the case, including the input from the applicant, and made his decision accordingly.

In his eight page rebuttal the applicant again cites the inaccurate AMC IG report and the flawed IOC AR 15-6 investigation as the source of misinformation to the SA in his decision process.  He believes the unfavorable advisory opinion was rendered because the DMPM and the DAIG are incapable of any other version of the facts in this case which do not support the SA decision.  He also believes that, had a key witness been interviewed by either the AMC IG or the IOC IO, the case would have been closed favorably with no finding of wrongdoing.  He further states that the AMC IG was blinded by his own personal prejudices to investigate the facts in order to prove a case of misconduct.  He notes that the finding of the Eighth US Army AR 15-6 investigation was dramatically different with no evidence of misconduct as alleged.  The PRB, the DMPM, and the Acting ASA (M&RA) understood the facts and rendered the appropriate recommendation.

The applicant believes that the DAIG findings remained substantiated, despite other evidence to the contrary, because the DAIG would not go back to the SA and admit a mistake had been made.  Since the DAIG did not admit to a mistake he has successfully obtained his next assignment.  The DMPM decision is flawed throughout and is a bureaucrat response to defend the removal decision of the SA.  He believes that the SA decision to not discuss this case in person is because the SA has never read the applicant’s lengthy request for reconsideration and does not even know who he is or want to take the time to find out.  The SA and the Army Staff do not want a personal confrontation through an office call where this truth would obviously be exposed.

The doctrine of administrative finality derives from numerous Federal court cases dealing with similar issues as this one.  It prevents cases and applications from being perpetually reopened and reexamined.  Once a final administrative authority reaches a decision approving or ordering an action, the case is closed.  The power of the official rendering the decision is exhausted concerning that case and the deciding official can not reconsider the decision, unless an exception to the doctrine of administrative finality or other legal authority authorizes reopening the case.

Title 10, USC, section 629, provides the President with the authority to remove the name of any officer from a list of officers recommended for promotion.  Executive Order number 12396, dated 9 December 1982, further delegates this authority for the grade of colonel and below to the Secretary of Defense.  The Secretary of Defense, by memorandum dated 12 January 1983, further delegated this authority to the Service Secretaries.

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

1.  The AMC IG and the IOC AR 15-6 investigation approved findings showed, by the preponderance of evidence, that the applicant had applied illegal pressure to persuade a Navy CPO and his family to move from their authorized government quarters so that the applicant’s family could move in.  No further administrative or judicial action was taken because the applicant had moved to another commander’s jurisdiction.

2.  A later AR 15-6 investigation conducted by Eighth US Army resulted in a determination that the applicant had not committed an illegal action in moving quarters but had only exercised poor judgment in the course of action he pursued.  This convening authority approved the findings and recommendation and issued a letter of admonishment to the applicant.

3.  The DAIG reviewed the earlier AMC IG and IOC AR 15-6 investigations along with the Eighth US Army AR 15-6 investigation.  After a review of all available information the DAIG believed that the preponderance of the credible evidence continued to show that the substantiated finding against the applicant should stand.  The fact that one of the three investigations resulted in a finding of no violations of regulations does not require the DAIG to automatically revise a previously substantiated finding.  The final decision in this case was made by The Inspector General of the Army.

4.  The recommendation by the CSA and the final decision by the SA to remove the applicant from the colonel promotion selection list were based on full knowledge of the PRB recommendation and the applicant’s rebuttal to the DAIG finding.  It appears that the SA believed there was still legal and sufficient reason to consider the applicant’s actions as warranting his removal from the list.

5.  Since the applicant had been removed from the colonel select list he was automatically removed from the colonel command list because he was not eligible to command at the colonel level.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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

__js____  ___jm__  ___mm_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000037856	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010118	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.