PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           7 February 2001                   
	DOCKET NUMBER:   AR2000043891

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Mark D. Manning		Member	
	Ms. Kathleen A. Newman		Member	
	Mr. Allen L. Raub		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 not 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 removal of the DAPE-MPC-E memorandum dated    28 July 1999 from his Official Military Personnel Files (OMPF); removal of the Command Review Board (CRB) memoranda dated 28 September 1998 and       7 January 1999 and his memoranda dated 21 January 1999 from the restricted fiche of his OMPF; removal of the 31 December 1993 Criminal Investigation Command (CID) report of investigation (ROI) from the Crime Records Center’s files or at least that his name and social security number be redacted from the ROI; and that his name be restored to the Command Lists from which it was removed.  

3.  The applicant states that a review of the CID report revealed that the investigation against him was opened due to information attributed to his ex-wife and stepson.  No other evidence was found.  The initial evidence was contradicted by the very people who rendered it in the first place.  The ROI is unjustly incomplete as it is heavily weighted to initial information with no regard to his commanders’ final conclusions.  The CRB generated a summary containing factual error in that it implied that CID found evidence that he smoked marijuana with an enlisted member.  There is no reference to this in the CID report.  Supporting evidence is as listed on the DD Form 149.  

4.  The applicant entered active duty in 1979.  He completed the Special Forces Officers Qualification Course in 1983.  He was promoted to Major on 1 March 1991.  He was assigned to 10th Special Forces Group (SFG), Fort Devens, MA in June 1993. 

5.  In October 1993, CID investigated the applicant for conduct unbecoming an officer and wrongful use of marijuana.  His wife was investigated for conspiracy to distribute a controlled substance, wrongful distribution of hallucinogens, wrongful distribution of marijuana, wrongful possession of hallucinogens, and wrongful possession of and use of marijuana.  His stepson and three other dependent juveniles were investigated for wrongful use of hallucinogens, wrongful use of marijuana and/or conspiracy to distribute a controlled substance.
The investigation was initiated when another investigation developed information which indicated the applicant’s wife was selling marijuana to dependent juveniles on Fort Devens, MA and had smoked marijuana with her juvenile son.

6.  During the investigation, the applicant’s stepson made a written statement in which he admitted circumstances surrounding his use of marijuana with his parents and the applicant’s knowledge of his mother’s abuse of controlled substances.  The applicant’s wife made a written statement in which she detailed the applicant’s knowledge of her abuse of controlled substances and her use of marijuana in the past with the applicant.  In an interview, she stated that she smoked marijuana with her son several times in their home.  She stated the applicant did not know about his stepson’s drug use but may have suspected it at a previous assignment.  She stated that she did “not know if he will let himself acknowledge the fact that I am using marijuana” and that he “sticks his head in the sand” (concerning the stepson’s drug use).  She stated she never smoked in front of him.  He would come home and ask what he smelled and she would say incense.  The applicant made a statement in which the applicant stated he had suspected his wife’s use of controlled substances but could not positively confirm his suspicions.  He denied ever having been involved with the purchase, possession or use of any illegal controlled substance.  CID had reviewed the applicant’s Personnel File, DA Form 201, and noted that his previous assignments coincided with the areas where his wife had been arrested by local authorities for drug-related investigations.  There is nothing in the ROI to indicate the applicant was being investigated for smoking marijuana with an enlisted member.  A misreading of the list of suspects could, however, give this impression.  For example, “DS:  SSG; B___ P___: (redacted), A Co…” could look as if the subject were an enlisted member if it were not understood that “DS” meant the dependent son of that enlisted member.  The investigative summary on the ROI could also be misread to interpret “Master” (a title of courtesy before the name of a boy) to mean “Master Sergeant.”

7.  On 29 October 1993, the Fort Devens Trial Counsel, Office of the Staff Judge Advocate opined that there was sufficient probable cause to believe the subjects listed had committed the offenses for which they were cited.  

8.  On 18 November 1993, the applicant’s group commander requested his reassignment not as a punitive measure but because the incidents disclosed in the ROI made it impossible for him to successfully complete a tour of duty with the command.  The commander noted that the applicant’s wife had been a chronic abuser of both prescription and illegal drugs over the past 10 years.  Recently she confessed to wrongfully using marijuana on numerous occasions in their on-post quarters.  The rampant drug abuse and other criminal activity occurring in the applicant’s home seriously undercut his ability to set and maintain high standards of moral conduct in his command.  

9.  On 31 December 1993, the CID determined that the ROI disclosed there was sufficient probable cause to believe that the applicant smoked marijuana on at least one occasion with one of the juveniles (the name was redacted from the ROI) and on at least one other occasion with his wife.  Additionally, it determined that his tacit approval of substance abuse in his government quarters by his wife and child constituted conduct unbecoming an officer and a gentleman.  The last sentence of the ROI is “Commander’s report of disciplinary action is pending.”

10.  The applicant had never been reassigned and remained with the 10th SFG.  In a support letter, the applicant’s rater at the time of the investigation stated that while the 10th SFG was compelled to suspend the applicant from his duties during the investigation, at the conclusion of the investigation the 10th SFG exonerated him and returned him to duty.  
11.  On 1 September 1996, the applicant was promoted to Lieutenant Colonel.  

12.  On 17 April 1998, the applicant was notified that he had been recommended for command by the fiscal year (FY) 1998 U. S. Army Recruiting Battalion Command Selection Board and by the FY 1999 Lieutenant Colonel, Combat Arms Command Selection Board.  However, in 1986 the Chief of Staff, Army (CSA) had approved a post-board screening process of all colonel level promotion and command selectees.  In 1988, this was expanded to include lieutenant colonel level command selectees and project managers.  All CID, Department of the Army Inspector General (DAIG), Central Clearance Facility and restricted microfiche files are screened to isolate any case in which the selectee is the subject of substantive derogatory information.  As a result of the above review, the CID report on the applicant was discovered and referred to a General Officer Review Board.  It was determined that the information warranted subsequent referral to a DA CRB.  

13.  On 25 September 1998, the CRB recessed.  The CRB noted that the (CID) information uncovered by the post-board screen inferred that the applicant condoned the use of illegal drugs in his quarters by his family members, such behavior being intolerable and totally unacceptable for a command selectee or for any individual placed in a position of trust.  The CRB recommended the applicant be removed from the FY 99 Lieutenant Colonel Combat Arms Selection List.  The recommendation was forwarded to the CSA for action by memorandum dated 7 January 1999.  An attachment to this memorandum paraphrased the CID’s 31 December 1993 summary.  However, it erroneously stated that he smoked marijuana on at least one occasion with an enlisted member.  The CSA approved the findings of the CRB and removed the applicant from the FY 1999 Lieutenant Colonel Combat Arms Command List.  (The Board presumes the applicant was also removed from the FY 1998 U. S. Army Recruiting Battalion Command List although that action is not available.)

14.  On 29 January 1999, the notification of his removal from the Command List was referred to the applicant as unfavorable information.  He rebutted the action. His rebuttal was considered but the referred summary of unfavorable information was approved for filing in the performance portion of his OMPF.  

15.  Army Regulation 195-2 prescribes DA policy on criminal investigation activities and constitutes the basic authority for the conduct of investigations and the collection, retention and dissemination of criminal information.  In pertinent part, it states that requests to amend CID ROIs will be granted only if the requestor submits new, relevant, and material facts which would warrant such a revision.  The burden of proof to substantiate the request is upon the individual.  The regulation further states that the decision to title a person for an offense is an investigative determination independent of any judicial, nonjudicial or administrative action taken against the individual or the results of such action.
16.  Department of Defense Instruction (DODI) 5505.7, 14 May 1992, Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense, states that titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes.  Titling or indexing alone does not denote any degree of guilt or innocence.  The criteria for titling, simply stated, is if there is reason to investigate, the subject of the investigation should be titled.  This is a very low standard of proof (mere scintilla of evidence), far below the burdens of proof normally borne by the Government in criminal cases (beyond a reasonable doubt), in adverse administrative decisions (preponderance of the evidence), and in searches (probable cause).

17.  The Memorandum of Instruction given to the Lieutenant Colonel Level Command Review Board provides the guidance that the principal criterion for removal from, or retention on, a list must be the potential of the officer as a commander.  Standards expected of senior officers are commensurately higher that those expected of junior officers.  Their leadership-by-example and experience form the basis upon which junior officers develop their ideas of the model professional officer.  The board, in weighing all the information, should recognize that selection for command constitutes an exceptional trust and must consider this key responsibility accordingly.

18.  A formal hearing was granted in the applicant’s case on 7 February 2001.  He attended and three witnesses testified in his behalf.  One witness, the applicant’s group commander at the time of the incident and currently the Commanding General, Special Forces Command, testified that he directed that an investigation into the allegations cited by the CID ROI be initiated.  An          in-depth analysis of the allegations was conducted and according to the facts that were given to him, the applicant did absolutely nothing wrong.  The investigation revealed that there was a complete lack of evidence to warrant substantiation of the offenses with which the applicant was charged.  He informed his chain of command of the facts as he saw them.  He recommended that no action be taken against the applicant, to include no administrative action at all, no letter of reprimand, no memorandum of concern at all.  The incident was dropped, the applicant was exonerated and subsequently reinstated into the unit where he did an absolutely tremendous job.  He considered the applicant an outstanding officer and an exceptional leader of the highest order.  He would put the applicant in command of one of his Special Forces battalions today and the applicant would excel.  

19.  Another witness, at the time the Deputy Commander, 10th SFG and a one-time U. S. Total Army Personnel Command SF branch manager, testified that the applicant’s records were so outstanding that he could be selected for promotion to colonel even without battalion command.  However, the CID ROI would probably result in his removal from the promotion list as it has resulted in his removal from the Command Lists.  

20.  The third witness was the applicant’s one-time supervisor while they were both assigned to Fort Carson, CO.  He testified that when the applicant worked for him at Fort Carson, he was up front about notifying his entire chain of command that his wife had a problem with prescription drugs and he was going to help her get through that.  He could not fathom why the applicant was not already a battalion commander.

CONCLUSIONS:

1.  The Board concludes that under the standards outlined in DODI 5505.7, 14 May 1992, the applicant was properly titled in the CID ROI.  Considering the guidance the CRB was given, it was within its prerogative to recommend that the applicant be removed from the Command List and within the CSA’s prerogative to so remove him.  

2.  The Board noted that that the attachment to the 7 January 1999 memorandum to the CSA listing the information that initiated the review board contained a serious factual error.  It stated that the CID ROI indicated the applicant had smoked marijuana on at least one occasion with an enlisted member.  Although the final CRB decision mentioned only that the preponderance of the evidence showed that the applicant condoned the use of illegal drugs in his quarters by his family members, the Board concludes that the erroneous facts in the attached summary influenced the decision process.

3.  The Board also concluded that because there was no closure to the CID ROI (i. e., the commander’s investigation and exoneration of the applicant were not noted in the ROI nor explicitly noted elsewhere in his records), the charges against the applicant unfairly allowed an unfavorable first impression to stand when the CRB reviewed his records.

4.  In view of the circumstances in this case to include the testimony provided by the applicant and his witnesses, the Board concludes that it would be appropriate to grant the applicant the relief he requests except that the CID ROI should not be removed from the Crime Records Center’s files. 

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:
     a.  restoring the applicant’s name to the two Command Lists from which it was removed;

     b.  expunging the memoranda dated 28 September 1998, 7 January 1999,   21 January 1999, and 28 July 1999 relating to the applicant’s removal from the Command List from his OMPF;

     c.  following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal will be returned to the board for permanent filing.

2.  That all references to the applicant (name and social security number) in the CID ROI dated 31 December 1993 be redacted.

3.  That so much of the application as is in excess of the foregoing be denied.

			James E. Vick
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000043891	
SUFFIX		
RECON		
DATE BOARDED	20010207	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	134.00	
2.		
3.		
4.		
5.		
6.