PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:           12 August 2003
	DOCKET NUMBER:   AR2002069153

	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	
	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. William D. Powers		Member	
	Mr. Frank C. Jones		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

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 reinstatement of Federal recognition as a full-time military officer with back pay as of 1 November 1998.  He also requests unspecified correction of an officer evaluation report (OER) for the period 1 August 1996 to 31 July 1997.

3.  The applicant states that he was denied a fair and impartial hearing by a board of officers considering whether or not to withdraw his Federal recognition. The Virginia Army National Guard (VAARNG) removed him from his full-time position in violation of Army Regulation 135-200, 2-6b.  The applicant pointed out that the VAARNG’s stated reasons for removal were restructuring and lack of funding.  He also states that his former commander issued a negative OER in reprisal for his participation in protected Equal Opportunity activity.  

4.  In support of his application, the applicant submitted an affidavit, dated 9 October 2001, and a bound volume of documents in six sections as follows:  

	Section I--A letter from the applicant's counsel regarding the conduct of an active Army colonel [hereafter identified as COL JM], the President of the Withdrawal of Federal Recognition Board during the proceedings of the board of officers considering withdrawal of the applicant's Federal recognition.

	Section II--The second legal review of the Proceedings of the Withdrawal of Federal Recognition Board.

	Section III--The first legal review of the Proceedings of the Withdrawal of Federal Recognition Board.

	Section IV--VAARNG Counterdrug Program Budget prior to Congressional plus up.

	Section V--Inspector General report stating the ARNG major, who was the applicant's rater, reprised against the applicant.

	Section VI--OERs, awards and commendations.

5.  The applicant’s military records show that he was appointed as a Reserve commissioned officer in the rank of second lieutenant effective 21 May 1989.  He entered on active duty 24 September 1989 and was promoted to first lieutenant effective 24 September 1991.  The applicant was released from active duty effective 24 June 1992 and transferred to an Army Reserve troop program unit.

6.  The applicant was appointed in the VAARNG as a first lieutenant effective 2 May 1994.  He was promoted to captain and extended Federal recognition effective 1 August 1995.  
7.  In a 19 December 1996 memorandum, a Master Sergeant [hereafter identified as MSG KV] assigned to Operational Detachment A 2082 (ODA 2082) filed a complaint of racial discrimination with the Commanding Officer of Company B, 20th Special Forces, of the VAARNG.  MSG KV was an immediate subordinate of the applicant.  In his memorandum to the major in command of Company B [hereafter identified as MAJ RB], MSG KV asserted among many matters that three white members of ODA 2082 requested reassignment to another detachment because they resented a Black noncommissioned officer (NCO) being put in charge of training, specifically physical training; that these three personnel and another Master Sergeant [hereafter identified as MSG JW]  used the term “nigger”; that the company executive officer [hereafter identified as MAJ MB] and MSG JW were plotting to have MSG KV relieved and that, although MSG KV became number one on the promotion list to SGM, that MSG JW was rumored to be the next sergeant major (SGM) of B Company.  MSG KV concluded this memorandum by requesting that MAJ RB conduct an investigation and that MAJ MB and MSG JW not be allowed to hold leadership positions if these allegations were proven true.

8.  In a 10 February 1997 memorandum, a Chief Warrant Officer Two (CW2) [hereafter identified as CW2 JH], a member of ODA 2084 also of Company B, wrote to the Inspector General of the Virginia National Guard (IG VA) that MAJ RB “failed to provide the Company with proper leadership by refusing to discipline certain individuals whose infractions would have led to U.C.M.J. [Uniform Code of Military Justice] against others.  Since 1997, he has allowed one detachment [the applicant’s detachment, previously identified as ODA 2082] to operate without regard to rules or regulations.”  

9.  Essentially the 10 February 1997 memorandum by CW2 JH asserts that the applicant wrongly stated that another ODA in B company did nothing to prepare for a mission when in fact the unit completed 18 hours of preparatory training; that the applicant and ODA 2082 were to sleep at a demolitions range to secure explosives and consumed alcoholic beverages at that site in violation of range regulations; that the applicant failed to secure explosives and violated safety regulations at the demolitions range; that a case of C-4 [explosives] was stolen from the range, but was returned; that MSG JW was to be promoted to SGM, but that MSG KV, a subordinate of the applicant, filed an Equal Opportunity (EO) complaint in order to block that promotion; that MAJ RB and a SGM [hereafter identified as SGM C] are out to protect their careers and will not discipline the applicant; that MAJ RB intends to find wrongdoing on the part of MSG JW since he has used the word ‘nigger’ as alleged in the EO complaint by MSG KV; that SGM C gave MSG KV an inflated rating on his NonCommissioned Officer Evaluation Report (NCOER) so as not to show favoritism to MSG JW; and that the applicant and MSG KV are trying to have MSG JW kicked out of the National Guard, trying to prevent MAJ MB from taking command of B Company and to have MSG KV become the B Company SGM; and finally that the applicant had a computer stolen.

10.  By memorandum, dated 28 April 1997, MSG KV notified the chain of command of alleged retaliation by the use of the Inspector General (IG) process against military personnel who provided information in support of his EO complaint.  MSG KV forwarded this memorandum and a copy of his 19 December 1996 EO complaint through the commander of ODA 2082 [the applicant]; MAJ RB, the B Company Commander; the lieutenant colonel in command of the VAARNG Troop Command [hereafter identified as LTC TR] to the Adjutant General of the Virginia National Guard (TAG VA), at that time an Army major general hereafter identified as MG CT.  

11.  In this memorandum, MSG KV asserted that a 7 February 1997 investigative report on his EO complaint determined that he “was the target of disparaging racial epithets, indicative of racial prejudice, uttered by members of Company B, while he was not present.”  The report goes on to state that the word “nigger” was used in general and specifically against the applicant and that he and other Black personnel could reasonably perceive a hostile EO environment within Company B.  MSG KV further asserted that military personnel, including the applicant, who made statements on his behalf during the EO investigation, have received retaliatory threats from MAJ RB, SGM C, and MSG JW.  

12.  Records indicate that TAG VA [MG CT] issued a LOR, dated 18 September 1997, which reprimanded the applicant for his failure to establish minimum safety precautions for the APFT administered on 24 June 1997 to MSG KV.  MSG KV died of a heart attack during this APFT.  MG CT also noted that the applicant’s negligence in not preparing for any such medical emergency was unbecoming an officer of his grade and experience.  This LOR was to be filed for a period of one year in the applicant’s OMPF.

13.  Records indicate that TAG VA [MG CT] issued a LOR, dated 21 September 1997, to the applicant for his failure to secure ammunition and explosives, failure to take appropriate action, allowing improper disposal of ammunition, improperly storing more ammunition and explosives than could be safeguarded, failure to follow turn-in procedures for ammunition and explosives found by unit members, and submitting false and fraudulent claims for pay and allowances.  The LOR also stated that the applicant’s acts of moral turpitude and unprofessional conduct brought great disgrace to the applicant as an officer in the Virginia National Guard.  This LOR was to be filed for a period of three years in the applicant’s OMPF.

14.  In a 28 October 1997 letter, the applicant's civilian attorney responded to the two LORs imposed on the applicant.  He stated essentially that the LORs "are inaccurate and were improperly motivated by a desire to discredit [the applicant's name and rank omitted]."  Counsel for the applicant also argued that the informal investigation under the provisions of Army Regulation 15-6 was incomplete and the findings were not based on the facts and logic presented in the discussion.  

15.  In his 28 October 1997 letter, counsel also raises the matters regarding the EO investigation, specifically that the applicant stood by MSG KV (now deceased) when he filed a racial discrimination complaint; that some of the soldiers involved in racial discrimination have now made complaints against the applicant; MAJ RB told the applicant that it was a mistake for MSG KV to file an EO complaint; MAJ RB questioned the applicant about statements that he made to the IG; that allegations would be filed against the applicant; and that the applicant would take the “blame” for the November range problem.  Finally, counsel pointed out that CW2 JH admitted in his 10 February 1997 letter that he is making allegations against the applicant because of the discrimination complaint filed by MSG KV and that the applicant is in an adversarial position with members of his own detachment and CW2 JH because of his support of MSG KV’s EO complaint.

16.  Counsel then addressed the LORs by stating that the TAG VA should recuse himself from the decisions on the two letters of reprimand because there is the appearance of conflict of interest.  Counsel proposes that an official at the National Guard Bureau (NGB) or Virginia Department of Public Safety should address these matters.

	a.  In regard to the 18 September 1997 LOR, counsel pointed out that MSG KV died of a heart attack on 24 June 1997.  Previously, there had been concern over MSG KV’s health and it was the applicant who convinced MAJ RB to delay MSG KV’s APFT until given a clean bill of health by doctors.  Counsel also argued that reasonable precautions were taken to insure safety at the APFT test site.  A MSG administered the test and he took the same precautions which had previously been taken during each weekly APFT for over 3 months, to include the presence of a combat lifesaver, a vehicle to be used an ambulance, and a working cell phone on site.  Counsel also noted that the medical clinic was less than a mile away.  Counsel concluded that “aside from having a cardiologist and a medic helicopter on hand it is hard to imagine what more [the applicant’s rank and name omitted] could have done."  Counsel also concluded with his opinion that the “precautions taken would not be considered negligence in any Virginia or federal court” and the people forcing MSG KV to run and for placing him under unbearable stress are the same people who discriminated against him and have an interest in discrediting his client.

	b.  In regard to the 21 September 1997 LOR which addresses the loss of explosives and ammunition, counsel finds it ironic that his client is blamed for negligence in the death of MSG KV because he was the senior officer present at the APFT site.  However, for the charges alleging mishandling of ammunition, the fact there were senior officers present throughout the training period is ignored.  Counsel noted that the governing regulation states that control of ammunition will be monitored by all officers, NCOs, or civilian equivalents; however, none of the officers present raised any of the deficiencies noted in the investigation to the attention of the applicant.  Counsel noted that the Senior Liaison Officer for the Chief of Staff’s Office was present and said that  “the training was excellent.”  Also the 29th Infantry Division Engineer was present and participated in the training.  In addition MAJ RB and numerous other field grade officers were present and at least one General Officer inspected the training.  Counsel concluded that this was a training exercise for the applicant and none of the experienced officers and NCOs stepped forward to correct the mistakes that are now being considered serious safety violations.

	c.  Counsel then points out that the missing C-4 was found the first week in April 1997 and MAJ RB knew it on 20 April 1997, but the applicant was not informed until after the first full week in May 1997.  Counsel contends that the major factor in the most serious of these allegations were the “renegade” actions of a staff sergeant in the applicant’s detachment [hereafter identified as SSG M], specifically that no one could have foreseen that SSG M would set off a smoke grenade and place explosives under a building.  Counsel contends SSG M’s claim that an anonymous phone call tipped him off to the location of the explosives is “too convenient” and it is more likely that SSG M used this explanation to get “himself off the hook.”  Counsel concluded that to hold the applicant responsible in this matter is unfair in the "extreme."

	d.  Counsel then addressed the statement in the LOR that the applicant improperly maintained more ammunition and explosives than could be secured.  Counsel argues that one case can be as easily secured as ten cases; however, the problem arises when a trusted member of the detachment who had complete access to the ammunition violates that trust.  Counsel points out that the applicant developed a training plan in December 1995 for training to be conducted in November 1996 and briefed it to MAJ RB who approved it and resourced it in December 1995.  The request for munitions was approved through several echelons of the chain of command without being reduced.  Counsel concluded that if you are short ammunition then training time may be wasted, but you can always turn in extra ammunition.

	e.  Counsel then addressed the allegation that the applicant filed false and fraudulent claims for pay and allowances.  Counsel stated that these allegations are totally without merit and argued there is no evidence to support the allegations except the undocumented statement by CW2 JH.  Counsel asserts that the applicant was performing appropriate military duties at all times during the Annual Training, the period for which the pay and allowances were claimed.

	f.  In concluding his letter, counsel requested that the entire matter be investigated and handled by NGB or the Department of Public Safety authorities or that both of these LORs be withdrawn and proper actions take to punish those who discriminated against MSG KV and thereby contributed to his tragic death.

17.  On 1 December 1997, the applicant wrote to the major general in the position of Director of the Army National Guard at that time [hereafter identified as MG WN] regarding retaliation for participation in an EO complaint.  In this memorandum, the applicant asserted among many matters that TAG VA [MG CT] abused the IG process by allowing the IG VA to continue to investigate when MSG KV had already advised on 28 April 1997 that these allegations leading to the IG inquiry and made against the applicant were in retaliation.  The applicant further contended that TAG VA [MG CT]:  temporarily relieved him of his full-time duty as a Counterdrug Operations Officer and made him perform secretarial work; issued the applicant a letter of reprimand (LOR) based on an investigation and report which were incomplete and inaccurate; erroneously issued a LOR charging the applicant with negligence in the tragic death of MSG KV; refusing to recuse himself when the applicant’s attorney pointed out a possible conflict of interest in deciding the disposition of the LORs; not allowing the applicant to attend drill or Annual Training with his unit since May 1996; not allowing the applicant to maintain his parachute proficiency effectively denying him hazardous duty pay; interfering with the applicant’s pursuit of a law degree by placing him under great stress during final exams in May 1997; ignoring MSG KV’s EO complaint; reopening an EO complaint filed by MSG KV in December 1996 after it had been administratively closed in February 1997; refusing to investigate and punish those responsible for discriminating against MSG KV and contributing to his death; and failing to promote MSG KV.  

18.  In his 1 December 1997 memorandum to the Director of the ARNG, the applicant requested the following remedial or corrective action:

	a.  Stop the VAARNG from taking further retaliatory action against the applicant.

	b.  Stop the discriminatory practices.

	c.  Corrective or preventive action to cure or correct the source of the identified discrimination.

	d.  Promote MSG KV posthumously.

	e.  Reevaluate the applicant’s last officer evaluation report (OER).

	f.  Review the findings of the investigations conducted under Army Regulation 15-6 and the resulting LORs.

	g.  Allow the applicant to return to his command.
	h.  Pay the applicant’s legal fees.

	i.  Reimburse the applicant for his lost hazardous duty pay as a parachutist.

	j.  Reimburse the applicant for his lost tuition and allow him time to complete his degree.

19.  In his 1 December 1997 memorandum to the Director of the ARNG, the applicant also provided explanatory comments summarized as follows.

	a.  Essentially that DOD Directive 5500.11 provides that no person shall on the ground of race, color or natural origin be excluded from participation in, be denied benefits of, or otherwise be subjected to discrimination under any program to which this directive applies.  The applicant contends that MSG KV as the target of “invidious” racial discrimination.

	b.  Essentially that DOD Directive 5500.11 provides that “no recipient or other person shall intimidate threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the Act or this Directive, or because he has made a complaint, testified, assisted, or participated in any matter in an investigation, proceeding or hearing under this Directive.”  The applicant contends that he was a material witness in the EO complaint filed by MSG KV, that CW2 JH filed an IG complaint in response to his support of MSG KV’s EO complaint, and that the applicant and MSG KV had been warned by MAJ RB of future IG complaints if MSG KV pursued his EO complaint.  Further, the applicant asserted that the IG complaint by CW2 JH was the basis of the actions by the VAARNG against the applicant.

	c.  MSG KV filed an EO complaint in December 1996, it was investigated, and the Report of Inquiry was completed in February 1997.  The unit commander decided that acts of discrimination had been substantiated and proposed a resolution which MSG KV had accepted.  

	d.  It appears that MSG KV was denied promotion and the opportunity to attend the Sergeants Major Academy because of his race.  His packet to attend the school was “lost” three times.

	e.  By April 1997, no action had been taken on the resolution agreed to by MSG KV in February 1997.  A subsequent sensing session by the Department of the Army Inspector General (DAIG) on 19-20 April 1997 raised concerns about the racial environment in Company B during which the applicant raised MSG KV’s complaint.  MAJ RB and MAJ MB observed the applicant’s conversation with DAIG officials.

	f.  In late April 1997, the applicant was informed by the IG VA that he was the subject of an investigation regarding the applicant’s arrest of CW2 JH in September 1996, actions by the applicant which were described as unbecoming an officer, and the applicant’s filing of false travel claims in August 1996 at Annual Training.  The applicant contends that, on 30 April 1997, questions by the IG VA covered EO matters which he believed were outside the “jurisdiction” of the IG.

	g.  MSG KV filed a complaint on 28 April 1997 alleging that individuals testifying in his behalf on the EO complaint were being retaliated against.  MSG KV died on 24 June 1997 during an Army Physical Fitness Test (APFT).  As of that date, there was no apparent action in his case.

	h.  MSG KV died of a heart attack while taking an APFT.  The applicant contends that MAJ RB had on several occasions insisted that MSG KV take the APFT, but he convinced MAJ RB that MSG KV should not take the APFT until cleared by his doctor.  The applicant asserts that there is no better way to discredit him than by making it look like the applicant was responsible for the tragic death of MSG KV.

	i.  The Chief of Staff of the Virginia National Guard [hereafter identified as COL H] advised the applicant, after the death of MSG KV, that he could not win and also counseled him regarding “loyalty to the organization over loyalty to the individual.”

	j.  The discriminatory actions against the applicant and MSG KV are not an aberration.  They are symptomatic of a systemic problem in the Virginia National Guard.  The applicant argued that the Virginia National Guard may contend that the applicant and MSG KV fabricated their stories; however, MSG KV was a well respected corporate lawyer in Washington, D.C., who represented the city and many clients in EO cases.  He was serious about this matter and brought his complaint because there were real problems. 

20.  In concluding his 1 December 1997 memorandum to the Director of the Army National Guard, the applicant requested:  “If I qualify for ‘WHISTLE BLOWER’ protection, I am requesting that protection now.” 

21.  DAIG records refer to Office of The Adjutant General, Virginia National Guard, Orders 232-011, dated 3 December 1997, which ordered the applicant to active duty in an Active Duty Special Work (ADSW) position in the Counterdrug Operations Program of the Virginia National Guard effective 8 December 1997 and ending on 30 September 1999.  DAIG records also indicate that these orders stated that, upon completion of this ADSW, the applicant would return to the place from which he entered ADSW.  The authority cited was Tile 32 United States Code Section 502f.
22.  On 2 March 1998 Report of Inquiry (ROI) NVA970059 was published by the IG VA addressing the issues raised by CW2 JH in his 10 February 1997 memorandum.  This ROI substantiated the following allegations:

	a.  The applicant's behavior in an official capacity and unofficial capacity dishonored and disgraced himself as an officer and a gentleman.  His actions compromised his standing as an officer in violation of Article 133, UCMJ, Conduct unbecoming an officer.

	b.  The applicant improperly behaved with disrespect towards his commanding officer MAJ RB in violation of Article 89, UCMJ.

	c.  MAJ RB improperly tolerated misconduct by the applicant in violation of Army Regulation 600-20 (Army Command Policy).

23.  The ROI also listed "Other Allegations (These allegations resulted in 
AR 15-6 Investigations. See Exhibit A-2)"

	a. The applicant failed to properly secure ammunition and explosives in violation of Army Regulation 190-11, paragraph 2-5f.

	b.  Leaders of Company B, 3rd Battalion, 20th Special Forces Group failed to take appropriate action when it was discovered that ammunition and explosives were lost, stolen, or missing in violation of Army Regulation 190-11, paragraph 
2-5f.

	c.  Members of Company B, 3rd Battalion, 20th Special Forces Group improperly disposed of ammunition to avoid inconvenience in returning the items to the Ammunition Supply Point in violation of Army Regulation 710-2, paragaph 2-36d. 

	d.  The applicant improperly maintained more ammunition and explosives on the range than could be properly safeguarded in violation of Army Regulation 710-2, paragraph 2-38a(5). 

	e.  The applicant failed to control training ammunition in violation of Army Regulation 710-2, paragraph 2-38a(5). 

	f.  Leaders and members of Company B, 3rd Battalion, 20th Special Forces Group improperly accounted for specially controlled training ammunition in violation of Department of the Army Pamphlet 710-2-1, paragraph 11-13.1.
	g.  Members of Company B, 3rd Battalion, 20th Special Forces Group falsified consumption documents for specially controlled training ammunition in violation of Department of the Army Pamphlet 710-2-1, paragraph 11-13.1a(3).
	h.  Leaders and members of Company B, 3rd Battalion, 20th Special Forces Group failed to follow turn-in procedures for found ammunition and explosives in violation of Department of the Army Pamphlet 710-2-1, paragraph 11-15j and paragraph 11-18a(2).

	i.  The applicant presented a false, fictitious or fraudulent claim in violation of Army Regulation 37-106.

	j.  The applicant improperly converted public monies for personal use in violation of DOD Financial Management Regulation Volume 5.

	k.  The applicant, a Class A paying agent, improperly entrusted public funds to another person in violation of DOD Financial Management Regulation Volume 5.

24.  On 3 March 1998, ROI NVA980046 was published by the IG VA addressing issues related to MSG KV's EO complaint.  The finding in this ROI stated the allegation that the applicant had "wrongfully interfered with an Equal Opportunity investigation in violation of Article 134, UCMJ, is substantiated."  Specifically evidence revealed that the applicant had colluded with members of his unit in the preparation of their statements "in attempt to steer the inquiry."

25.  A 22 June 1998 memorandum from the IG VA to the applicant announced the results of another IG investigation as follows: 

	"The allegation that MAJ RB reprised against you by improperly attempting to restrict you from making protected disclosure during the EO inquiry into [MSG KV’s] complaint in violation of para D.2., DoD Directive 7050.6., is substantiated.

	The results of this investigation have been forwarded to the directing authority, The Adjutant General of Virginia for appropriate action, and to the Department of the Army Inspector General.  No further action pertaining to this allegation will be taken by this office.”

26.  In a 24 June 1998 memorandum, the IG VA requested that the DAIG release portions of IG ROIs as a basis for possible adverse actions against MAJ RB and the applicant.  Specifically, the TAG VA was considering a letter of reprimand for MAJ RB.  In the case of the applicant, the TAG VA is "considering forwarding the released portions of the ROIs to the First Army Commander for a fitness of duty determination in accordance with NGR [National Guard Regulation] 635-101."

27.  By memorandum dated 28 July 1998, the VAARNG Counterdrug Coordinator notified the applicant that his ADSW position was one of the positions that will not be filled during Fiscal Year 1999 and that this decision did not reflect negatively upon the applicant or his duty performance.

28.  DAIG records state essentially that a request, dated 4 August 1998, was submitted to First United States Army [hereafter referred to as First Army] to review the case of the applicant to "determine whether [the applicant] should undergo a withdrawal of federal recognition board as contemplated by the regulation. 

29.  DAIG records state that a request was made to First Army by memorandum, dated 25 February 1999, to appoint members of a Withdrawal of Federal Recognition Board from other than the Virginia National Guard.

30.  DAIG records state that an e-mail, dated 2 April 1999, indicated that the Commanding General of First United States Army reviewed the requests in the applicant’s case and wanted a second opinion, specifically on the issue of whether or not the Commanding General of a Continental United States Army (CONUSA) could take action without “something” from the Adjutant General.

31.  DAIG records state that an e-mail, dated 8 April 1999, shows there were telephone calls between unidentified officials regarding the need for a written recommendation in the applicant’s case.  

32.  DAIG records indicate that by memorandum dated, 18 April 1999, the new TAG VA [hereafter identified as MG CW] requested that the Commanding General of First Army consider the applicant's fitness for duty which in effect could result in formal withdrawal of the applicant’s Federal recognition.  

33.  DAIG records indicate that, in a memorandum dated 24 May 1999, the SJA of the Virginia National Guard [hereafter identified as the SJA VA] was notified that the TAG VA request, dated 18 April 1999, lacked a recommendation as to whether or not the applicant's Federal recognition should be withdrawn.  On 3 June 1999, TAG VA [MG CW] responded to Commanding General of First Army.  TAG VA noted there was correspondence between their SJAs in regard to his 18 April 1999 recommendation.  TAG VA stated that to ensure his intentions in the matter, he was recommending that the applicant's Federal recognition be withdrawn based on serious incidents that were reflected in the investigation provided.

34.  In response to a 24 May 1999 request by First Army, the military lawyer in the rank of lieutenant colonel and in the position of Chief, Military Law Division, at Forces Command [Headquarters, Forces Command, the next higher echelon of command above First Army] prepared and signed a supplemental legal review in regard to the Withdrawal of Federal Recognition Board contemplated in the applicant's case.  Essentially, he opined as follows:
	a.  “It is the opinion of this office that the allegations by [the applicant] that he is the victim of reprisal in violation of 5 U.S.C. 2302 and 10 U.S.C. 1034 are without merit.  Consequently, this office does not perceive any legal impediment to proceeding with the withdrawal of federal recognition process against [the applicant].

	b.  Considerable evidence appears to exist that [the applicant] has on numerous occasions exhibited acts of intemperance, personal misconduct, or conduct unbecoming an officer as described in NGR 635-101, paragraphs 9d and 9f, evidence worthy of examination by a board of inquiry.

	c.  Many of the alleged acts of misconduct predate the initiation of the Equal Opportunity complaint concerning [MSG KV], a complaint supported by [the applicant].  Moreover, the IG investigations into misconduct by [the applicant], which form the basis for the board of inquiry, were the result of complaints made by [CW2 JH].  At no time was [CW2 JH], inferior in rank to [the applicant], in a position to "take (or threaten to take) an unfavorable personnel action…as a reprisal against a member of the armed forces for making or preparing" a protected communication.  Moreover, the IG Investigations do not appear to be the result of acts of reprisal on the part of [the applicant’s] chain of command.  In fact, the evidence indicates that [the applicant’s] immediate superiors, the victims of his alleged acts of disrespect, were extremely reluctant to take action against [the applicant] in any fashion, whether justified as the evidence indicates or as an illegal act of reprisal as alleged by [the applicant].

	d.  Communicating with one's congressman, Inspector General, etc. does not provide immunity from the consequences of independent acts of misconduct. It would appear from an impartial analysis of the facts that [the applicant's] alleged misconduct merits a board of inquiry concerning his continued fitness for Federal recognition."

35.  The records pertaining to withdrawal of the applicant's Federal recognition contain an undated and unsigned document, apparently the file copy referred to in DAIG records, from the First Army Staff Judge Advocate (SJA) to the Commanding General of First Army, entitled Withdrawal of Federal Recognition Board followed by the applicant's rank and name.  This memorandum essentially states the following facts.

	a.  "I have reviewed the record and find there is sufficient legal basis to initiate withdrawal of Federal recognition. This is a contentious case within the Virginia ARNG which has taken careful coordination over a period of time to reach this point.

	b.  On 3 June 1999, TAG VA, [MG CW], recommended withdrawal of [the applicant's] Federal recognition.  This recommendation was based on serious incidents of misconduct in 1996-1997 which are reflected in three IG investigations. These reports were sent here in August of 1998 by the previous TAG [MG CT], without a recommendation, for First Army consideration.  This reflects the contentious nature of the case at that time.  Each IG investigation uncovered evidence of [the applicant's] misconduct and inappropriate behavior.  The initial investigation responded to a formal complaint lodged by CW2 JH, a fellow Special Forces team leader in the same company as [the applicant].  The complaint alleged that [the applicant] engaged in numerous acts of misconduct.  Two subsequent investigations were conducted which stemmed from the original inquiry.  These reports were written because evidence gathered during the first IG investigation uncovered other acts of misconduct which were not addressed in [CW2 JH's] initial complaint.  All three investigations revealed that [the applicant] had engaged in a pattern of alcohol-related misconduct, much of which he admitted to.

	c.  [The applicant] contends that the first IG investigation was in reprisal for an EO complaint that he lodged against another soldier.  This argument is without merit.  The IG investigation was initiated due to a pattern of misconduct which was brought to the IG's attention.  The report concluded that [the applicant] had engaged in over 14 acts of misconduct; nine which occurred before [the applicant] lodged his initial concerns with the IG.  The initiation of withdrawal of Federal recognition does not violate the Whistleblower Protection Act, because this action does not constitute a retaliatory personnel action under the act.  The FORSCOM SJA concurs with our opinion that [the applicant's] allegations of whistle blower reprisal are without merit (see attached memo).

	d.  The record in this case establishes a pattern of misconduct for which [the applicant] should be considered for withdrawal of Federal recognition.  He admitted to much of this misconduct and the rest was proven by testimony of a number of witnesses and substantiated by the IG VA.

	(1)  He was intoxicated during a cookout after the conclusion of his JTF-6 Annual Training After Action Review (although beer was provided at the cookout).  [The applicant] admits that he had been drinking that night. (Inquiry #59, pg. 28, the applicant's sworn statement, pg. 62) (19 Aug 96);

	(2)  [The applicant] admits that he left a computer unsecured in the back of a vehicle, overnight at a hotel, and the vehicle was broken into and the computer stolen. The border patrol had warned him not to leave anything in vehicles because of the high theft rate in the area ([The applicant] was intoxicated the night of the theft) (Inquiry #59, pg. 28, the applicant's sworn statement, pg. 64) (19 Aug 96);

(3)  [The applicant] publicly confronted CW2 JH (who, like [the applicant], was a team leader within the unit), and placed him "under arrest" in order to discredit him, in violation of Article 134, UCMJ (Inquiry 59, pg.29, [The applicant’s] sworn statement, pg. 67) (24 Aug 96);

(4)  On three occasions, he participated in and condoned excessive drinking with his subordinates. On one such occasion, he admitted that he was hung over the following day and threw up on another soldier in the C 130 before an airborne jump (Inquiry 59, pg. 27, [The applicant’s sworn statement, pg. 8) (3 Aug 96). On a second occasion, he and a subordinate were so loud, that they woke others in the billeting area at 0300 hours (Inquiry 59, pg. 30, [The applicant’s sworn statement, pg. 74) (Sep 96);

(5)  He failed to properly secure ammunition and explosives in violation of AR 190-11, paragraph 2-5)(f) (The applicant’s sworn statement, pg. 80) (Nov 96);

(6)  He failed to take appropriate action when it was discovered that ammunition and explosives were lost, stolen or missing in violation of AR 190-11, paragraph 2-9 (Nov 96);

(7)  He improperly disposed of ammunition to avoid the inconvenience of returning the ammunition to the ASP [ammunition supply point], in violation of AR 710-2, paragraph 2-38a(5) (Nov 96);

(8)  He drank alcohol with subordinates at a range, when his mission was to safeguard ammunition.  [The applicant] did not admit to this offense, but rather responded that he would prefer to consult with counsel before addressing this question. (Inquiry 59, pg. 30, [The applicant’s] sworn statement, pg. 80) (Nov 96);

(9)  He committed disrespect, and other improper behavior, towards his commanding officer, [MAJ RB], in violation of Article 89, UCMJ, to wit: yelling at [MAJ RB], calling him "a liar, a [expletive deleted] liar, no good, bullshit and incompetent. . . never once using the word sir, or respectively (sic) or, or anything to show deference or respect to his rank."  Although [the applicant] does not admit this statement it is confirmed by numerous witnesses. (Jan 97);

(10)  He wrote a letter to a subordinate NCO outlining why he believes [MAJ MB] is not competent to command the unit (Inquiry 48, pg. 1) (Feb 97);

e.  These acts of misconduct are well documented in the IG reports. The IG inquiries began in March of 1997, and took about one year to complete.  [The applicant] has been reassigned out of the ARNG Special Forces unit into an infantry battalion in the VAARNG. Your memorandum to him will acknowledge the amount of time that has passed in this lengthy investigation.  It is time to put these facts before a show-cause board, as recently recommended by TAG VA, which will also weigh any evidence of improved performance since these incidents. I recommend you initiate the formal Withdrawal of Federal Recognition action by signing the enclosed memorandum."

36.  By memorandum from the Army Major General serving as Acting Commanding General of First Army, dated 20 July 1999, the applicant was notified that sufficient basis exists to initiate action for withdrawal of Federal recognition for acts of intemperance or personal misconduct and conduct unbecoming of an officer under NGR 635-1-1, paragraph 9.  This memorandum specifically addressed "failure to properly secure government property, ammunition, and explosives; disrespect to a Commanding Officer; and excessive consumption of alcohol," by which the applicant dishonored and disgraced himself on several occasions.

37.  The 20 July 1999 memorandum notified the applicant that a board of officers will be convened under the provisions of NGR 635-101 to make a recommendation regarding his continued retention in the ARNG.  The applicant was also advised of the following options available to him under paragraph 14 of NGR 635-101:

	a. Show cause for retention before a board of officers convened for this purpose.

	b.  Submit a resignation in lieu of withdrawal of Federal recognition.

	c.  Elect transfer to the Retired Reserve, if eligible.

38.  The 20 July 1999 memorandum also advised the applicant of his options under paragraph 15 of NGR 635-100:

	a.  To appear before the board in person at your own expense. 

	b.  To be furnished copies of the records that will be submitted to the board and other pertinent releasable documents.  

	c.  To submit statements in your own behalf.

	d.  To be represented by appointed military counsel, by military counsel of your choice (if reasonably available), or by a civilian counsel at your own expense.

	e.  To be allowed a reasonable time to prepare your case.  In no instance will you have less than 35 days from the date of this notification.  

39.  Finally, the 20 July 1999 memorandum directed the applicant to elect one of the options on Enclosure 1 and return the election within 35 days of receipt of this notification.  The applicant was advised that if he elected to submit his resignation in lieu of withdrawal of Federal recognition, then Enclosure 2 had to be completed and returned.  A copy of this memorandum was furnished to TAG VA [MG CW].

40.  The Election Form signed and returned by the applicant was dated 22 August 1999 and indicated the following decisions by the applicant:

	a.  Option 2 [I desire a hearing before a board of officers];

	b.  Option 2c [Desire to be represented by appointed military counsel who, if reasonably available, will be my lawyer.]

	c.  Option 2f. [Desire copies of records which will be submitted to the board and other releasable documents.]

	d.  Option 2g. [Desire to submit statements in my own behalf.]

41.  The applicant also wrote to the Commanding General of First Army on 22 August 1999 wherein he asserted that a Withdrawal of Federal Recognition Board with members from the VAARNG would not be fair and impartial.  The applicant contended that the TAG VA [MG CT] and the IG VA who investigated allegations of misconduct against the applicant are currently under investigation themselves by the Secretary of the Army Inspector General (SAIG) "for retaliating against him because of his participation in a Military Discrimination Complaint."  The applicant continued that his complaint against these officers predated the request for the Withdrawal of Federal Recognition Board; therefore, the applicant asserted that the Withdrawal of Federal Recognition Board is a "result of the continued pattern of discrimination and retaliation that I raised in my complaint."  The applicant concluded this portion of his letter with the statement that other senior officers in the VAARNG are being by investigated by the SAIG for allegations similar to his and it is unfortunate that the TAG VA and the IG VA have been allowed to retire while under investigation.

42.  The applicant then raised the issue of the use of IG records in this adverse action against him.  The applicant requested that the Acting Commanding General of First Army reconsider this decision because the serious nature of the allegations and the potential consequences of the Withdrawal of Federal Recognition Board's decision "require a higher standard of due process."  The applicant argues that the allegations leading to the Withdrawal of Federal Recognition Board arise from conduct that occurred prior to or during his participation in a military discrimination complaint.  He further contends that "but for my participation in protected activity I would not be the subject of the proposed board" and that the "Virginia National Guard has known about the alleged misconduct for at least two years."  He concludes that he "should not be penalized and denied due process because senior officials of the Virginia National Guard have purposefully prolonged this matter."

43.  The applicant then requested specifically that the Withdrawal of Federal Recognition Board not have membership from the VAARNG.  The applicant also requested that the Acting Commanding General of First Army reconsider his decision to withdraw the applicant's Federal recognition.  The applicant then described the indiscretions of senior officers in the VAARNG who have not been sanctioned and noted that soldiers who oppose discrimination are subjected to retaliation.  Finally, he concludes his letter with requests not to allow IG information to be used in this adverse action against him and not to allow board membership from the VAARNG, and he additionally requested minority membership on the Withdrawal of Federal Recognition Board.

44.  A Report of Preliminary Inquiry was published by the U.S. Army Inspector General Agency on 19 January 2001.  This document shows that, on 16 June 1998, the DAIG referred allegations made by the applicant to the DOD IG.  The DAIG report shows that the applicant “alleged retaliation in the form of various IG inquiries and pending disciplinary actions for his participation in an equal opportunity (EO) investigation.”  An investigating officer note stated:  “On 28 May 1998, [the applicant] declined IG, DOD, Whistleblower Protection Act (WPA) status.”

45.  The DAIG Report of Preliminary Inquiry listed the following unfounded allegations:

	a.  Allegation #1.  An unidentified official improperly denied the applicant the opportunity to transfer to the U.S Army Reserve as reprisal for filing an EO complaint.  Synopsis:  Evidence indicated the applicant was the subject of an investigation by a board of officers to determine whether his conduct constituted moral or professional dereliction.  The action was initiated on 28 April 1998.  On 4 April 2000, the board recommended withdrawal of the applicant’s Federal recognition.  Thus, he was not eligible to transfer to the U.S. Army Reserve from 28 August 1998 until his discharge.

	b.  Allegation #2.  An unidentified official failed to retain the applicant in his full-time position.  Synopsis:  Evidence indicated that the applicant was ordered to active duty for a specific period of service ending 30 September 1998.  The applicant entered the active duty tour while an unnamed official served in an unidentified position and the applicant was given notice he would not be extended beyond the stated release date.  When the period ended he was released.  The unidentified official was not involved in the action which terminated the applicant’s full-time service which records show was Active Duty Special Work, not Title 32 Active Guard/Reserve service.

	c.  Allegation #3.  An unidentified official improperly refused to process the applicant’s military discrimination complaints.  Synopsis:  The applicant’s complaint acknowledged that it was against senior officials and requested the complaint be processed by NGB and DAIG.  In addition, the applicant contacted NGB EO who recommended that the applicant file his complaints with NGB because an unidentified official was included in the proposed complaint.  There was no credible evidence that the applicant’s military discrimination complaints were not processed. 

	d.  Allegation #4.  An unidentified official improperly made inaccurate and misleading statements to elected officials.  Synopsis:  The applicant did not agree with the LORs he received from an unidentified official.  The applicant referred to the LORs as misleading and false.  The LORs were based on credible information presented to TAG VA [MG CT] pertaining to the applicant’s personnel misconduct.  The LORs were issued by TAG VA [MG CT].  There is no evidence that an unidentified official provided misleading and false information to any one concerning the applicant.

46.  By memorandum dated 10 March 2000, First Army appointed officers as members, legal advisors and recorder of a Show Cause Board to consider withdrawal of the applicant's Federal recognition. 

47.  By memorandum dated 23 March 2000 addressed to the applicant, the board recorder announced the convening of a formal board to consider withdrawal of the applicant's Federal recognition at 1000 hours on 4 April 2000 at Fort Lee, Virginia.  

48.  A 2 April 2000 memorandum for record prepared by the board recorder shows that he consulted with the legal advisor on 17 March 2000, that he notified the applicant telephonically on 22 March 2000 of the board date of 4 April 2000, and that COL JM, the board president, denied a request for delay from the applicant's civilian attorney.

49.  On 4 April 2000, a Withdrawal of Federal Recognition Board, consisting of one colonel and three majors as voting members, was convened as directed by the Commanding General of the First Army.  The official copy of the transcript of the Withdrawal of Federal Recognition Board proceedings and all allied papers were obtained by the staff of the Army Board for Correction of Military Records (ABCMR) from the Federal Recognition Section of the Officer Management Branch of the ARNG Personnel Directorate.

50.  The purpose of the withdrawal of Federal Recognition Board as stated in the board transcript was to consider whether or not to recommend withdrawal of the applicant's Federal recognition in accordance with NGR 635-101: paragraph 9, moral or professional dereliction; paragraph D, acts of intemperance or personal misconduct; and paragraph F, conduct unbecoming an officer. 

51.  After considering all of the evidence and testimony, the board of officers made several findings as announced by the President of the Withdrawal of Federal Recognition Board which are quoted from the transcript of proceedings as follows:  

	"The Board uh let the record reflect that all persons present when the Board was closed to include the Board members to respond to counsel and recorder and present.  [Applicant], it is my duty as President of this Board to inform you that the Board is closed session and all secret ballot and majority of the Board Members present at the time the vote taken concurring has made the following findings and recommendations.

The Board after carefully considered the evidence before it finds that the government has, government has presented substantial evidence that your conduct constitutes moral and professional ___________.  Therefore the recommendation is that your Federal recognition is withdrawn.  Here is why we broke it down in three areas.

	As far as we were concerned the equal opportunity affair the investigation of that while that took place during this whole couple of years of your trials and tribulations we really believe that was just an incidental thing to the overall problem and the problem is you.

	Any military person has to display three things.  They have to have a sense of responsibility because the military is [word or words omitted from the transcript], they have to have moral courage, you just got to stand up and third of all you have to be trainable.  

	Now the problem with MSG KV yeah a lot if it is attributed to you. 

	Trainable-I'm not sure, I'm not sure, we're positive that your untrainable.  Here is why were positive that your untrainable.  Since 1985 you have been to every one of the army schools… this is early on plus you have NCO training, you had three years of active duty career and you come to your unit in the Virginia National Guard and all of that training is for nult… and if you are untrainable you have no potential for military service.  

	Now we reviewed your record in depth and we don't come to this decision casually or without some, some apology because you have not received since you been at the Virginia National Guard the best leadership.  You have not.  You have been in situations where as a young officer it has been very tough but neither of these excuse your poor judgment, your lack of moral courage and the demonstrated lack of train ability.  

	Now based on that and based on those findings you have to find another line of work because you are just not cut out to be a soldier.  Your just not and that's our decision.  Any questions?"

52.  The Findings and Recommendations presented by the President of the Withdrawal of Federal Recognition Board were recorded on paper in pertinent part as follows:

	"The Board having carefully considered the evidence before it finds the Government has presented substantial evidence that your conduct constitutes moral or professional dereliction. (Briefly state the factual data and reasons)

	1.  Accountability of explosives-loss resulting in endangerment of life

	2.  Poor demonstration of performance and judgement as regards leadership & demonstration as such.

	3.  Poor moral judgement in condoning one type of offense while questioning another.

In view of the findings, the Board recommends:

	__X__  Withdrawal of Federal Recognition.

53.  By memorandum dated 15 May 2000, TAG VA [MG CW] advised the Commanding General of First Army that he had reviewed the findings and recommendations of the Withdrawal of Federal Recognition Board in the applicant's case and concurred with them.  TAG VA also advised that the SJA VA "reviewed this record and found the findings and recommendations are supported by a preponderance of the evidence, and that the record itself is legally sufficient and meets the requirements of both existing law and regulation." TAG VA concluded:  "Given the continuing effect this matter is having on good order and discipline, I request an expedited review of this matter."

54.  By memorandum dated 26 June 2000, the Chief of Military Justice at First Army advised the First Army Commanding General that "the board proceedings regarding [the applicant] have been reviewed and are legally sufficient.  The Board found evidence that [the applicant] lost accountability of explosives, the loss of which resulted in the endangerment of life; that he demonstrated poor performance and judgment regarding leadership; and that he exercised poor moral judgment in condoning one offense while questioning another.  Based on its findings, the board recommended [the applicant’s] federal recognition be withdrawn."  The Chief of Military Justice also found that the "board findings and recommendations comply substantially with all legal requirements; there are no apparent errors in the board proceedings; sufficient evidence supports the board findings; and the recommendation is consistent with the findings.”

55.  By memorandum dated 26 June 2000, the Commanding General First Army forwarded the proceedings of the Withdrawal of Federal Recognition Board to NGB for execution.  He stated that the case had been reviewed by his SJA "and is legally sufficient."  

56.  NGB subsequently conducted a legal review of the proceedings forwarded by First Army.  The proceedings of the Withdrawal of Federal Recognition Board were reviewed by an officer of the Judge Advocate General's Corps in the rank of major assigned to the NGB Administrative Law Team.  This legal review is dated 30 November 2000.  

57.  The NGB legal review set forth the following summarized information:

a.  A brief chronology showed that, between August 1996 and January 1997, events occurred involving the applicant which were the basis for the allegations addressed in or referred to in IG investigations.  In December of 1996, minority members of the VAARNG filed military discrimination complaints and the applicant made statements supporting their complaints.  Between May 1997 and March 1998, the applicant was under IG investigation.  During June and July of 1998, the results if these IG investigations were released for use in disciplinary action.  In July of 1999, the applicant was notified of the initiation of action to withdraw his Federal recognition and the Withdrawal of Federal Recognition Board was held in April 2000.

b.  The actions for which the applicant's Federal recognition was withdrawn occurred approximately fours years ago.  The delay was caused by the IG investigations and the need to obtain release of the IG investigations to ensure that sufficient grounds existed to initiate action to withdraw federal recognition. 

c.  The NGB counsel noted that the applicant has not performed required military training since the date of the board hearing and that he has not received any dispensation from such training.  Counsel opined that as a practical matter, a member is required to attend training until such time as withdrawal of Federal recognition is approved by CNGB and that the applicant could be processed for withdrawal of Federal recognition based on failure to participate.

58.  The legal review then addressed the proceedings of the Withdrawal of Federal Recognition Board.  

a.  The board of officers in this matter was convened on 4 April 2000 pursuant to the memorandum of appointment by the Commanding General of First Army, dated 10 March 2000. 

b.  The applicant was notified of the proceedings and the allegations against him by memorandum, dated 20 July 1999, which stated the basis for the action was as follows:  “for acts of intemperance or personal misconduct and conduct unbecoming of an officer…specifically, failure to properly secure government property, ammunition, and explosives; disrespect to a commanding officer; and excessive consumption of alcohol, by which you dishonored and disgraced yourself on several occasions.”  

c.  The government’s evidence against the applicant consisted solely of several IG reports of investigation.  Authority to use the IG reports was properly obtained in accordance with Army Regulation 20-1, para 3-3c.  The applicant and his counsel did not object to the use of these IG records during the board proceedings.  However, the use of the IG reports deprived the applicant of the opportunity to cross-examine the individuals who provided adverse information during the course of the IG investigations.  

d.  The NGB counsel determined that the findings of the Board, specifically Findings #2 and #3, are vague, ambiguous, and devoid of facts that support the board’s conclusions.  Specifically, there are so many allegations in the record that it is not clear exactly which ones the board is relying upon to support Findings #2 and #3.  Further these findings do not address the specific allegations that were set forth in the memorandum of notification to the applicant. For example, Finding #3 does not indicate what offense the applicant condoned and what offense he questioned and Finding #2 does not state exactly which incidents demonstrate poor performance and judgment regarding leadership.  Conversely, the findings do not address the allegations concerning intemperate consumption of alcohol by the applicant or his disrespect to a commanding officer. 

59.  The NGB counsel proposed two options for processing this case:

a.  The Chief, National Guard Bureau, (CNGB) may approve Finding #1, disapprove Findings #2 and #3, and approve the recommendation to withdraw Federal recognition.  Counsel noted in her experience that the loss of accountability of property, even ammunition, does not ordinarily result in a Withdrawal of Federal Recognition Board.  However, counsel also noted that loss of accountability for 40 pounds of C4 and loss of the computer could constitute sufficient evidence of substandard performance to support withdrawal of Federal recognition. 

b.  The second option proposed was to “return the Record of Proceedings to the state to reconvene the board to clarify Findings #2 and #3, specifically by amending them to refer to the specific incidents identified in the IG investigations.” 

(1)  In support of this recommendation, the NGB counsel expanded on the matters related to use of IG records in this case.  In particular, she pointed out the substantial number of adverse allegations against the applicant contained in or referred to in the three IG investigations and that some of them are not specified in the applicant's notification letter (e.g., the alleged “arrest” of CW2 JH, a false claim, conversion of public money for personal use, improperly entrusting public funds to another person).  

(2)  The NGB counsel also noted that some of these allegations were investigated separately and apart from the three IG investigations (e.g., see IG investigation NVA 970059, paragraph 2b wherein eleven allegations were set forth which were investigated under Army Regulation 15-6).  Of the allegations that were actually investigated and substantiated by the three IG investigations, some apparently were not seized upon by the board as a basis for recommending withdrawal of Federal recognition (e.g., disrespect towards his commanding officer, MAJ RB).  

(3)  The NGB counsel also pointed out that, while the use of such records in adverse administrative actions is permitted by Army regulation and the authority was properly obtained to do so, the regulation provides (1) that only the minimum amount of evidence necessary from the record will be used, preferably from documentary evidence and testimony for which consent to release was given and (2) that IG opinions, conclusions, and recommendations are not evidence, and will not be used as a basis for adverse action.  

(4)  The entry of these investigations in their entirety into evidence was the subject of discussion at the start of the hearing as follows in part.  The board president (COL JM) stated that he had been on both sides of IG investigations and that “because they’re provided I will caution you that’s not necessarily, that doesn’t mean that I will necessarily use them or rely on them because quite frankly the information is dated and while it provides the picture of the time you have to put it in perspective to this time so we evolve somewhat.” (transcript page 17)  The defense counsel also commented on this issue (page 19), essentially that there is no opportunity to cross-examine the people who made these statements.  Secondly there are comments and conclusions by the IG which are his own opinions and we sharply disagree with them.  He is not a witness and is not subject to cross-examination.  However, counsel noted that the applicant and his civilian attorney did not object to the use of these IG reports.

	(5)  The NGB counsel concluded that there is no evidence in the verbatim transcript that any of the IG opinions, recommendations, or conclusions were improperly considered by the board members, however, counsel suggested that "we can’t help but wonder whether the board members may have been influenced by them."  

60.  The NGB counsel concluded the legal review with the recommendation to return the case to the state to reconvene the board to clarify Finding #2 and Finding #3 specifically by relating them to specific incidents identified in the IG investigations that they reviewed and by ensuring that only matters covered in the notification letter to the applicant are used to support the findings.

61.  The NGB legal review and the proceedings of the Withdrawal of Federal Recognition Board were returned to First Army.  On 19 March 2001, the First Army Chief of Military Justice, who originally reviewed this case, considered the NGB legal review and rendered a second First Army legal review.  In this second legal review, the military lawyer initially recounted the sequence of events leading to the convening of the Withdrawal of Federal Recognition Board, specifically noting the following:

	a.  The applicant was properly notified and advised of the three allegations in his case.

	b.  He elected to appear before a board of officers.

	c.  The applicant's request for no board members from the VAARNG was honored.  The applicant's request for minority membership on the board was honored by appointing COL JM, an African-American, to the board.

	d.  The applicant was provided all of the documentary evidence pertaining to withdrawal of his Federal recognition prior to the convening of the Withdrawal of Federal Recognition Board.  He was represented by civilian counsel before the board.  The board recorder presented as evidence the IG investigations that had been approved for use by the DAIG.

62.  The second legal review by the Chief of Military Justice of First Army reiterated the evidence in the case and then argued that "although board findings number 2 and 3 do not specifically state the same facts alleged in the notification, a review of the board proceedings clearly shows that the board members were focused on the three allegations presented to them.  The board findings are conclusions drawn from the substantial evidence in the record.  In accordance with NGR 635-101, paragraph 20a, 'each finding must be a clear and concise statement of the facts evidenced in the record or a conclusion that can be readily deduced from the evidence in the record' (emphasis added by counsel).  During their closing statements, the government recorder as well as the [the applicant's] civilian counsel argued the specific facts of these allegations.  Further, in announcing the findings on the record, the board president referenced [the applicant's] loss of the government computer, the loss of 40 pounds of C4, his joining in and condoning alcohol abuse among his subordinates, as well as his complete lack of leadership ability. There was no objection to the specificity of the findings by [the applicant] or his counsel."  The Chief of Military Justice concluded that the "board recommendation to withdraw [the applicant's] Federal recognition is consistent with their findings, and clearly appropriate."

63.  By memorandum dated 20 March 2001, the Commanding General of First Army referred the proceedings of the Withdrawal of Federal Recognition Board directly to the CNGB because it was unclear to him whether or not the CNGB had seen this action.  The Commanding General of First Army made the following points:

	a.  On 26 June 2000 the Withdrawal of Federal Recognition Board proceedings were forwarded to NGB for execution.  In February 2001, the proceedings were returned with a recommendation to reconvene the board to clarify two of the board's findings.

	b.  Because it has been nearly one year since the board convened and since COL M has been reassigned reconvening the board to clarify findings two and three would delay processing the case which is counter to the interests of the Army and the applicant.

	c.  We disagree with the legal review from your headquarters.  Two legal reviews from First Army and one by the Virginia National Guard found all three findings legally sufficient.  Notwithstanding these legal reviews, your legal review determined that finding number one (loss of accountability of 40 pounds of C4 explosives) was "legally sufficient" and stated that you "could approve withdrawal of [the applicant's] Federal recognition based solely on finding one."

	d.  In concluding the Commanding General of First Army wrote that it "is not necessary to reconvene the board.  In my view, all three findings are appropriate (and supported by substantial evidence in the record) but, in any event, finding number one alone clearly warrants withdrawal of [the applicant's] Federal recognition.

64.  The Chief of the Administrative Law Team, Office of the NGB Chief Counsel, prepared comments for the CNGB on the 20 March 2001 memorandum from the Commanding General of First Army wherein he made the following points: 

	a.  A NGB military legal officer previously reviewed this case on 30 November 2000.  

b.  This is an extremely sensitive case.  [The applicant] provided testimony in support of certain minority members of the VAARNG who filed military discrimination complaints.  [The applicant] claimed that the Withdrawal of Federal Recognition Board constituted reprisal for having supported the complainant's allegations.  This situation has been reported in the Washington Post and other media outlets.

	c.  Since our opinion of 30 November 2000, DAIG has completed its investigation of the reprisal allegation.  The investigator [rank and name omitted] has advised us that the evidence obtained in the investigation has failed to substantiate [the applicant's] allegations of reprisal.  DAIG is recommending that the case based on reprisal be closed.  Accordingly, it appears that reprisal can be eliminated as a consideration with regard to the withdrawal of Federal recognition proceeding.  

d.  What remains to be decided are the merits of the Withdrawal of Federal Recognition Board’s  actions.

e.  In our opinion of 30 November 2000, we noted a number of concerns about the Withdrawal of Federal Recognition Board and its report of proceedings, particularly with regard to Findings #2 and #3.  In our opinion those findings are “at best vague and at worst incomprehensible.  In 15 years of reviewing Withdrawal of Federal Recognition Board results the undersigned can state that he has never seen their like before.”

f.  We recommend that the file be returned to First Army in order to reconvene the board and have it clarify those findings.  First Army has responded that it is not possible to reconvene the board and provided a legal opinion that findings #2 and #3 are legally sufficient because evidence to support them can be deduced from the record.  We agree that there is evidence in the file tending to substantiate any number of incidents, but the problem with the findings is determining exactly which incidents the board is referring to.  This is normally a matter which should not be left to conjecture.

g.  We believe that CNGB may withdraw Federal recognition in this case.  The issue is should he base that action on approval of all three findings or on approval of only Findings #1 relating to the loss of accountability of C4 explosive. This is a question upon which reasonable people may disagree.  While we may conclude that only Finding #1 meets our standards of specificity in a finding, we cannot say that it is clearly legally objectionable to approve all three findings.  

h.  Also, it appears that [the applicant] has not drilled for years, has moved on in life, and is not likely to challenge individual findings when the recommendation itself is sound.  

i.  We believe the quandary regarding the findings in this case might be avoided altogether.  The governing regulation, NGR 635-101, does not require approval of the findings and recommendations.  Paragraph 16b states "When a board recommends elimination of the officer concerned the CNGB, will, as appropriate – (1) approve the recommendations of the board..., or (2) disapprove the recommendations of the board…"  Accordingly, we recommend that the decision memorandum in this case simply state that CNGB approves the recommendation of the board.  

65.  In a memorandum dated 21 June 2001, the major on the NGB Administrative Law Team, who prepared the original legal review dated 30 November 2000, prepared a second legal review in response to the 20 March 2001 memorandum from the Commanding General of First Army.  She set forth essentially the same points made in the above cited memorandum by her immediate supervisor, the Chief of the Administrative Law Team, with the following additions:

a.  "Contrary to a statement in our prior opinion, we have recently been informed by the VAARNG that [the applicant] has, since the board, continued to serve and perform all training.  He has an attorney who, in communication with the VAARNG, has threatened to file suit over this matter, apparently at least in part because [the applicant] wants to deploy with the 29th ID [Infantry Division] to Bosnia and cannot do so as long as this matter is pending.  Since the board, he has received two decent, though not outstanding, OERs and allegedly his battalion and division support his desire to deploy."

b.  We believe that CNGB may withdraw Federal recognition in this case, but that a decision not to do so could also be supported.  With respect to approving withdrawal of Federal recognition, there are issues here on two levels. First, is a finding clear enough to be not legally objectionable?.  Second, if clear enough, is it, based on the evidence, not legally objectionable?  With respect to clarity, while we conclude that only Finding #1 meets our standards of specificity in a finding, we cannot say that it is clearly legally objectionable to approve all three findings, as indeed the First Army Commanding General, based upon legal advice, believes is appropriate.  However, in our opinion there is also a reasonable basis to approve only Finding #1 relating to the loss of accountability of C4 explosive.  That finding is not ambiguous and by itself based on the evidence constitutes a ground to withdraw Federal recognition which is not legally objectionable.  (The standard for legal review of a finding that is not ambiguous is that it is not legally objectionable so long as a reasonable person could have made such a finding.  Otherwise, we will not substitute our judgment for that of the board.)  Whether to approve all three findings or only Finding #1 is a close question upon which reasonable people may disagree.

	c.  The NGB counsel concluded, as proposed by the Chief of the NGB Administrative Law Team, that the decision memorandum executed by the CNGB in this case should only approve the recommendation of the Withdrawal of Federal Recognition Board.  

66.  By memorandum dated 25 September 2001, the Air Force Lieutenant General in the position of Chief, National Guard Bureau, advised the Commanding General of First Army that the "findings and recommendation to withdraw Federal recognition of [the applicant's rank and name omitted], VAARNG, are approved.”

67.  The applicant was separated from the VAARNG effective 1 November 2001 by Virginia National Guard Orders 320-058, dated 16 November 2001, under the provisions of NGR 635-100, paragraph 5b(6).  The applicant's ARNG Retirement Point History Statement shows that he was separated with 16 years, 2 months and 17 days creditable service for non-regular retired pay at age 60.

68.  The applicant's Official Military Personnel File microfiche contains a 16 July 2002 memorandum from the US Total Army Personnel Command, Office of Reserve Components Promotions, which states the applicant's records were reviewed by the Reserve Components Mandatory Selection Board that convened on 4 March 2002.  The memorandum notified the applicant that he was considered for promotion to major, but was unfortunately not among those selected by the board.  The reason provided for failure of selection was the applicant did not meet the educational requirements as specified in Army Regulation 135-155.

69.  While the applicant was still serving as a member of B Company, 3d Battalion, 20th Special Forces, (VAARNG), he received an OER for the rated period 1 August 1996 through 31 July 1997.  The applicant contends that this OER [hereafter referred to as the contested OER] is adverse and, in effect, he has requested that it be removed from the Performance Section of his OMPF.  

70.  The contested OER is an annual report covering the applicant’s command of Special Forces ODA.  The applicant authenticated Part IId (Rated Officer’s Signature) on 20 August 1997 indicating that the administrative data on the contested OER was correct.  The rater, a Special Forces major in the position of company commander, made his comments and ratings and signed the contested OER on 15 September 1997.  The senior rater (SR), an Ordnance Corps lieutenant colonel in the position of Commander of the 91st Troop Command (Headquarters, State Area Command), rendered his evaluations and comments and signed the contested OER on 27 October 1997.
71.  In Part IVa (Professional Competence), the rater evaluated the applicant with “1” [the highest rating] under all attributes, except Part IVa(8)-Displays sound judgment.  Under this attribute, the rater assigned a rating of “2.” 

72.  Under Part IVb (Professional Ethics), the rater provided written comments regarding the applicant’s score of 296 on the Annual APFT, that the applicant was within body fat standards of Army Regulation 600-9, and that the applicant supports the unit’s Equal Opportunity /Equal Employment Opportunity program.

73.  In Part Vb (Performance During This Rating Period), the rater placed his “X” in the second block (Usually Exceeded Requirements).  In Part Vc (Comments on the Specific Aspects of Performance) the rater made positive comments about the applicant's engineer training at the Sapper Light Leaders Course, his challenging training at drill weekends, his stress on U.S. Army Special Operations Command Certification and Validation standards and Spanish language qualification.  This block contains the entries showing the applicant's Bachelor of Arts Degree from Towson University in 1989 and completion of Phase I of the Officer Advanced Course in 1997.
 
74.  In part Vd (This Officer's Potential for Promotion to the Next Higher Grade), the rater placed his "X" in the second block (Promote with Contemporaries).

75.  In Part VIIa (Potential Evaluation), the SR rater placed his "X" in the third block resulting in the following SR profile:  (9/4/6*/0/0/0/0/0/0) [The asterisk indicates the applicant's position in the SR profile for the contested OER.]

76.  In Part VIIb (Comments), the SR praised the applicant's intelligence, capabilities, and qualities "which will benefit his development as a leader if properly focused."  The SR continued:  "The support [the applicant] provides his subordinates is second to none; however, he could improve on the support rendered to the entire chain of command.  The applicant has the potential to be a company commander."

77.  There is no evidence that the SR referred the contested OER to the applicant for comment based on the below center of mass (BCOM) potential evaluation.  There also is no evidence the applicant requested a Commander's Inquiry or appealed the contested OER to the G-1 Officer Special Review Board.

78.  The contested OER was forwarded to Department of the Army officials for processing and it was placed on his OMPF microfiche.  The contested OER was in the promotion file seen by the Fiscal Year 2002 Major (Reserve Components) Promotion Selection Board.

79.  The applicant's evaluation history as a captain contains seven OER's of which three are completed on the DA Form 67-8 and four are completed on the DA Form 67-9.  In the OER's completed on the DA form 67-8 (not including the contested OER described above) for his service as a captain, the applicant received ratings of "1" in all 14 elements of professional competence and received numerous positive comments under professional ethics and competence from two different raters. 

80.  Both raters placed him in the top block (Always Exceeded Requirements) under Part Vb (Performance During This Rating Period) and made positive comments on the applicant's performance and listed his achievements under Part Vc (Comments on Specific Aspects of the Performance).  In the OER covering the period 1 August 1995 through 31 July 1996, the rater [MAJ RB, the same rater for the contested OER] placed the applicant in the top block (Promote Ahead of Contemporaries) in Part Vd (This Officer's Potential for Promotion to the Next Higher Grade).  In Part Ve (Comment on Potential), the rater states that the applicant has the potential of becoming an excellent company commander or battalion staff officer.  In the OER covering the period 1 August 1997 through 31 May 1998, the rater placed the applicant in the second block (Promote With of Contemporaries) in Part Vd (This Officer's Potential for Promotion to the Next Higher Grade).  In Part Ve (Comment on Potential), the rater states that the applicant should be given the opportunity to command in one or two years.

81.  The SRs for these two OERs completed on the DA Form 67-8 were two different officers.  [LTC TR], the SR for the contested OER was also the SR for the OER immediately prior the contested OER.  This OER covered the period 1 August 1995 through 31 July 1996.  In the OER covering the period 1 August 1995 through 31 July 1996 [LTC TR] placed the applicant in the top block (8*/3/5/0/0/0/0/0/0) and made highly laudatory comments on the applicant's support of JTF-6 in New Mexico and the resulting "outstanding" evaluations, maintenance of 100% certification and one of the best in language qualification and his potential to be a company executive officer.  The SR for the OER covering the period 1 August 1997 through 31 May 1998 was an infantry battalion commander in the grade of major, who evaluated the applicant in the top block (4*/0/0/0/0/0/0/0/0) and made positive comments about the applicant's "outstanding" performance as a battalion S-3 Air and stated that his potential warranted command of an infantry company and future assignment as a battalion S-3 [operations officer].  

82  The applicant received 4 OER's as a captain on the DA Form 67-9 which became effective on 1 October 1997.  All of the OER's on the DA Form 67-9 show in Part IV (Performance Evaluation-Professionalism) that the rater placed his "X" under "Yes" for all of the blocks in the Attributes, Skills and Actions categories.

83.  Under Part V (Performance and Potential Evaluation), the raters for the periods 1 June 1998 through 31 May 1999 and 1 June 1999 through 31 May 2000 placed the applicant in the second block (Satisfactory Performance, Promote) with positive comments on specific aspects of the applicant's performance.  In Part Vc (Identify any Unique Professional Skills of Value to the Army that this Officer Possesses), each of the rater identified skills.

84.  Under Part V (Performance and Potential Evaluation), the raters for the periods 1 June 2000 through 31 May 2001 and 1 June 2001 through 31 October 2001 placed the applicant in the first block (Outstanding Performance, Must Promote) with positive comments on specific aspects of the applicant's performance.  In Part Vc (Identify any Unique Professional Skills of Value to the Army that this Officer Possesses), each of the rater identified skills.

85.  In Part VII (Senior Rater) on each of the DA Forms 67-9, the SRs placed their "X" in the second block (Fully Qualified) under Part VIIa (Evaluate the Rater Officer's Potential to the Next Higher Grade).  The applicant was senior rated by three different SRs all in the grade of lieutenant colonel.  The SR's evaluations resulted in the applicant receiving a "center of mass" (COM) rating on each of the DA Forms 67-9.

86.  Review of all the OERs received by the applicant as a first lieutenant and as a captain revealed that the rater for the contested OER [MAJ RB] was the applicant's SR for an OER as a first lieutenant for the period 2 May 1994 through 31 October 1994. The SR [MAJ RB] evaluated the applicant (0/1*/0/0/0/0/0/0/0 and in Part Vb (Comments) stated that the applicant is an outstanding officer, his commitment to duty and his unit are an example to all the officers in this unit, and that the applicant should be given greater responsibility and authority.

87.  The OER for the period 1 November 1994 through 31 July 1995 as a first lieutenant shows that the rater is [MAJ RB] and the SR is [LTC TR], who were also the rater and SR for the contested OER.  In this OER on the DA Form 67-8, the applicant received ratings of "1" in all 14 elements of professional competence and received numerous positive comments under professional ethics and competence.  Specifically, the rater states that the applicant personifies leadership by example, fully exploits subordinates capabilities, ignites enthusiasm throughout the unit, and is a hard working officer who takes charge and makes positive things happen.  In evaluating potential, the rater stated that the applicant should vbe promoted ahead of his peers  The SR placed the applicant in the second block (0/5*/1/0/0/0/0/0/0) and commented positively on the applicant's effective leadership, tremendous energy and skill, and setting the example.

88.  In the processing of this case, an advisory opinion was provided by the Chief of the ARNG Personnel Division wherein he expressed the opinion that the applicant’s application be disapproved.  The opinion asserted that the applicant based his appeal on what he believes to be reprisal for having supported allegations made by minority members of the VAARNG concerning discrimination.  The DAIG completed its investigation and found that evidence obtained in the investigation failed to substantiate the applicant’s allegations of reprisal. 

89.  The advisory opinion also stated that there seemed to be some concern about the wording of the findings of the original board, which recommended withdrawal of Federal recognition.  The Chief, Administrative Law Team, addressed this issue in the second legal opinion.  The point in question is whether the CNGB can base approval of withdrawal of Federal recognition on all three findings of the board.  At the very least a legal review by First United States Army had determined that Findings 2 and 3 were legally sufficient.  The Chief, Administrative Law Team, also went on the say that NGR 635-101 does not require the CNGB’s approval/disapproval of the findings of the board, just a decision on the recommendation.  If the memorandum from the CNGB were amended from Approval of Findings and Recommendation to Approval of Recommendation there is no legal basis to contest the withdrawal of Federal recognition and all remaining issues are moot.  In addition, the Chief, Administrative Law Team, pointed out that the applicant had not drilled in many years, had moved on in life, and was not likely to challenge individual findings when the recommendation itself was sound.  For the reasons cited, it was recommended that the application be disapproved.

90.  The advisory opinion was forwarded to the applicant for acknowledgement or rebuttal on 21 January 2003.  His rebuttal was received by the ABCMR on 6 February 2003.  The applicant stated that his request to have his OER corrected for the period 1 August 1996 to 31 July 1997 was based on an IG finding that his commander reprised against him.  He also stated that the request for back pay to November 1998 was based on the retaliatory discharge from his active duty Title 32 position in the VAARNG because of his participation in protected equal opportunity activity.  The VAARNG stated the reason for releasing him from his position was lack of funds; however, the VAARNG filled his position with another officer after his departure and turned in unused funds at the end of the fiscal year.  The applicant stated that he can provide supporting documentation if required.  He has been informed that the DOD General Counsel had decided not to authorize a Title VI investigation and allegations against his former commander had not been investigated.  The DAIG did conduct a limited investigation into allegations of impropriety against the current TAG VA.  He does not believe that the DAIG has statutory authority to conduct this type of inquiry.  

91.  The applicant also stated that the observation that he had not drilled in several years, moved on in life, and was not likely to challenge the individual findings was incorrect.  He states that he participated as an active drilling member of the VAARNG until he received notice of withdrawal of his Federal recognition and that he is currently challenging the findings and the recommendation of the board to this Board and in Federal District Court.  He submits a copy of a letter from the IG VA, dated 22 June 1998.

92.  National Guard Regulation (NGR) 635-101 (Personnel Separations-Efficiency and Physical Fitness Boards) sets forth the criteria and procedures for determining the capacity and general fitness of commissioned and warrant officers for continued Federal recognition in the Army National Guard.

93.  NGR 635-101 Section I (General) paragraph 4 states that the separation of an officer under the provisions of this regulation will be accomplished upon the approved recommendations of a board of officers convened by a competent authority.

94.  Paragraph 6a of NGR 635-101 states that the Chief, National Guard Bureau, acting for the Secretary of the Army will review and approve the findings and recommendations of a board of officers convened by area commanders to determine whether the Federal recognition of officers of the ARNG should be withdrawn by reason of incapacity or general unfitness.  The Chief of Staff, US Army, acting for the Secretary of the Army, will review and approve or disapprove the findings and recommendations of boards of officers convened in the Department of the Army.  If the approved findings and recommendations are against the officer the Chief, National Guard Bureau will (1) Withdraw the officer's Federal recognition, (2) Notify the appropriate State Adjutant General and the area commander concerned,. and (3) Furnish one copy of the approved board proceedings and a copy of the order withdrawing Federal recognition to the Commander, Unites States Army Reserve Components Personnel and Administration Center [currently known as the Army Reserve Personnel Command]. 

95.  Paragraph 6b of NGR 635-101 states that upon receipt of withdrawal of an officer's Federal recognition, the Commander, Unites States Army Reserve Components Personnel and Administration Center will accomplish discharge from Reserve of the Army status. 

96.  NGR 635-101 Section II (Reasons for Action to Withdraw Federal Recognition) states in paragraph 9 (Moral or professional dereliction) that the existence of one or more of the following or similar conditions constitutes moral and professional dereliction and requires withdrawal of Federal recognition from an officer for general unfitness unless the officer successfully proves that recognition should not be withdrawn: a) Unjustified failure to meet personal financial obligation; b) Mismanagement of personal affairs to the discredit of the Army National Guard; c) Intentional omission or misstatement of facts on official statements or records for the purpose of misrepresentation; d) Acts of intemperance or personal misconduct; e) Commission or attempted commission of a homosexual act or existence of homosexual tendencies (AR 635-100); f) Conduct unbecoming an officer; g) Entry into a military service of foreign government; h) International neglect or failure to (1) Perform assigned duties; (2) Participate satisfactorily in required Ready Reserves Training and (3) Comply with directives to : a) Furnish current address of record, which results in inability to locate officer; b) Accomplish medical examination or execute statement in lieu of medical examination and c) Reply to official correspondence; and i) Conviction by a foreign court resulting in confinement or other restrictions of the officer's freedom which significantly diminishes his usefulness in the service.

97.  NGR 635-101 Section III (Initiation and Processing of Actions to Withdraw Federal Recognition) states in paragraph 12 (Recommendations for withdrawal of Federal recognition) states that action may be originated by any commander with respect to an officer of his command or under his jurisdictional control, the State Adjutant General, the Chief, National Guard Bureau or the Chief of Staff, US Army.  

98.  Paragraph 12 of NGR 635-101 states, in pertinent part, that the commanders will forward their recommendations for withdrawal of Federal Recognition through channels to the State Adjutant General.  Then the State Adjutant General will forward his recommendations, together with correspondence, statements, records and similar related documents to the area commander in whose area the officer involved is currently residing.  These recommendations will clearly state the reasons for the recommendation and all be supported by all documentary and physical evidence available.  With the exception of official records and reports, such as efficiency reports and health records, all statements submitted will be under oath or affirmation, unless the witness is dead, insane, missing or exigencies preclude obtaining his statement on affidavit form.  

99.  NGR 635-101, paragraph 13 (Initial action by Army area commander), states the following actions may be taken by the area commander:  a) The case may be returned for further evidence or a recommendation as a further action;  b) He may disapprove the recommendation, close the case and return it to the State Adjutant General or  c) He may appoint or direct appointment of an investigating officer in accordance with AR 15-6.  Upon receipt of the investigating officer's report, he may disapprove the recommendation, close the case, and return it to the State Adjutant General.

100.  NGR 635-101, paragraph 14a (Initiating action for withdrawal if Federal recognition), states that if the area commander determines that sufficient basis exists to initiate action for withdrawal of Federal recognition, he will, if the whereabouts of the officer is known or may be ascertained by reasonable procedures, notify the officer concerned setting forth the reasons therefore, and inform him that he must acknowledge receipt of the above notification and elect one of the following options within 15 days of receipt notification : (1) Show cause for retention before a board of officers convened for that purpose.; (2) Submit a resignation in lieu of withdrawal of Federal recognition or (3) Elect transfer to the Retired Service.

101.  NGR 635-101 paragraph 14b states that upon acknowledgement of receipt by the officer, the area commander will (1) If the officer submits a resignation in lieu of withdrawal of Federal recognition, forward the resignation and related correspondence to the State Adjutant General; (2) If the officer elects transfer to the Retired Reserves and is otherwise eligible, process his request by referring it to the State Adjutant General and (3) If the officer elects appearance before a board of officers, take necessary action to appoint such a board as required by regulation.

102.  NGR 635-101, paragraph 15 (Privileges of the officer), states that the officer concerned will be entitled to the following privileges (and he will be so notified by the area commander convening the board): a) Appear in person before the board at his own expense, b) Be furnished copies of the records that will be submitted to the board and other pertinent releasable documents; c) Submit statements on his own behalf; d) Be represented by appointed military counsel who, if reasonably available should be a lawyer; by military counsel of his own choice (if reasonably available); or by civilian counsel at his own expense and e) Be allowed a reasonable time to prepare his own case.  In no instance will he have less than 30 days from date of notification by the area commander. 

103.  NGR 635-101, paragraph 16 (Action on board recommendations), states that Board proceedings will be prepared in triplicate and forwarded through the appropriate State Adjutant General to the area commander who convened the board. 

104.  Paragraph 16a of NGR 635-101 states that if the area commander notes a substantial defect in the proceedings in which withdrawal of Federal recognition has been recommended, he will take the following actions: (1) If the board failed to make findings and recommendations as required by regulation, he will return the case to the same board for compliance with this regulation, (2) If there is an apparent error omission in the record that may be corrected without reconsideration of the findings and recommendations of the board, he will return the case to the same board for corrective actions or (3) if the board committed an error that materially prejudiced a substantial right of the officer, he may close the case favorably to the respondent, or he may convene a new board to hear the case.  No more than one rehearing may be directed without approval of the Chief, National Guard Bureau.

105.  Paragraph 16a of NGR 635-101 states that when a board recommends elimination of the officer concerned, the Chief, National Guard Bureau will, as appropriate: (1) Approve the recommendations of the board and effect action indicated in paragraph 6a; (2) Disapprove the recommendations of the board, close the case, and notify the officer concerned.  A copy of the letter of notification to the officer will be included in the board proceedings.  The commander making the recommendation for withdrawal of Federal recognition will be furnished a copy of the board proceedings together with the final action taken.

106.  NGR 635-101, Section IV (Board of Officers) paragraph 18, prescribes the general provisions governing boards of officers convened under the provisions of this regulation to afford the officer a fair and impartial hearing to determine whether he should be retained in the Army National Guard.  The burden of proof rests with the officer to produce convincing evidence that his Federal recognition should not be withdrawn.  In the absence of such a showing the board must recommend withdrawal of Federal recognition.

107.  Title 32, United States Code, Sections 101 and 502(f) provide for the members of the Army National Guard of the States and territories to be ordered to “Full-time National Guard duty.”  Title 32 defines “Full-time National Guard duty as training or other duty, other than inactive duty, performed by a member of the Army National Guard of the United States in the member’s status as a member of the National Guard of a State or territory.  Those personnel who are ordered to “Full-time National Guard duty” under Title 32 for the purpose of organizing, administering, recruiting, instructing, or training the Army National Guard of the United States are administered by the respective States and territories are members of the Active/Guard Reserve (AGR) Program.

108.  Chapter 6 of Army Regulation 135-200 [Active Duty for Training, Annual Training, and Active Duty for Special Work ADSW) of Individual Soldiers] governs ADSW.  This provision of regulation authorizes ADSW for projects supporting ARNG and United States Army Reserve (USAR) projects and provides that ADSW must be used for temporary projects or missions normally for not more than 139 days unless approved for more than 139 days by HQDA or a Major Army Command.  ADSW tours of duty are limited to 180 days, but may be extended by authorized authorities.

109.  Paragraph 2-6 (Early Release) of Army Regulation 135-200 states that early release for officers is governed by paragraph 1-12 (Involuntary Release of Officers).  This provision of regulation provides that Army National Guard of the United States (ARNGUS) and USAR officers on ADSW for more than 90 days may be involuntarily released from active duty.  The regulation requires involuntary release when conduct or efficiency is seriously deficient.

110.  Paragraph 4-27 of Army Regulation 623-105 requires that certain types of Officer Evaluation Reports (OER) be referred to the rated officer for acknowledgement and comment before they are sent to Headquarters Department of the Army.  Listed among those types of OER’s requiring referral are any report with negative remarks about the rated officer’s ethics in Part Ivb and/or in the rating officials narrative.  Further, the regulation also requires that any report with a potential evaluation in Part Vd of “Do not promote” or narrative comments to that effect from any rating official require referral to the rated officer. This provision of regulation does not require senior rater evaluations which are below center of mass to be referred.

111.  Army Regulation 623-105 provides, in pertinent part, that any OER with ratings or comments that, in the opinion of the SR, are so derogatory that the report may have an adverse impact on the rated officer’s career will be referred for acknowledgment and comment prior to forwarding to Department of the Army.

112.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.  Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

113.  Paragraph 4-21 of Army Regulation 623-105 governs references to derogatory information in officer evaluation reports (OER).  Essentially, this provision of regulation states that no reference will be made to an incomplete investigation concerning an officer.  However, the regulation provides that any verified derogatory information may be entered on an OER whether the officer is under investigation, flagged, or awaiting trial.  Specifically, the regulation states that, while the fact an officer is under investigation or trial may not be mentioned in an OER until the investigation or trial is completed, this does not preclude the rating chain’s use of verified derogatory information.  As an example, the regulation states that, when an interim report with verified information is made available, then that verified information may be included in an OER.  The regulation also requires that, when previously unverified information is later verified, then an addendum will be prepared in accordance with paragraph 5-35 and forwarded to Headquarters, Department of the Army.  Similarly, the regulation provides that, if reported information should later be found incorrect or erroneous, then the officer must be notified of his or her right to appeal the OER in accordance with chapter 9.  Finally, this regulation states that OER’s may not be delayed to await the outcome of a trial of investigation.  Reports must be done when due and contain what information is verified at the time of preparation.
114.  Paragraph 4-27 of Army Regulation 623-105 requires that certain types of Officer Evaluation Reports (OER) be referred to the rated officer for acknowledgement and comment before they are sent to Headquarters Department of the Army.  Listed among those types of OER’s requiring referral are relief for cause reports.

115.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a standby promotion advisory board may only be based on erroneous nonconsideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's nonselection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for nonselection, except where an individual is not qualified due to noncompletion of required military schooling.

116.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  Paragraph 3-13 (Removal from a selection board list) states, in pertinent part, that HQDA may remove the name of an officer from a selection board list because he or she was removed from an active status before promotion was finalized or was not in an active status at the time of consideration.

CONCLUSIONS:

1.  This Board considered the applicant's request for reinstatement of Federal recognition as a full-time military officer with back pay as of 1 November 1998.  

2.  Based on the evidence of record showing that the applicant was serving in an ADSW position in the VAARNG, the Board determined that he was not entitled to restoration in the VAARNG as a captain/pay grade 0-3 to a full-time position effective 1 November 1998.  Accordingly, he is not entitled to any back pay or allowances for full-time service.

3.  The Board noted the applicant's contention that he was removed from his full-time position in violation of paragraph 2-6b of Army Regulation 135-200.  In the case of officers, paragraph 2-6b refers to paragraph 1-12 of this same regulation. Paragraph 1-12 states that an officer on ADSW may be involuntarily removed after 90 days of ADSW service.  The applicant was officially notified that he was being involuntarily released due to funding constraints.  While the applicant claims he can prove that there were sufficient funds to continue his position, the Board's is not predisposed to dictate the allocation of resources in support of ADSW at the state level.  Therefore, the Board concluded that the applicant's removal from his ADSW position was proper.

4.  The Board considered the applicant's request to make unspecified corrections to the contested OER.  In considering this matter the Board noted the following.

	a.  The contested OER did not meet the mandatory requirements for referral as specified in paragraph 4-27 of Army Regulation 623-105.

	b.  The Board noted the rater's evaluation of "2" in Part IVa(8)-Displays sound judgment on the contested OER.  Under the governing regulation, this rating does not require referral of the contested OER.  The applicant has provided no evidence that this rating was not the considered opinion of the rating official at that time.  The Board determined that rater was justified in rendering a "2" evaluation for judgment .

	c.  The Board also noted the rater's evaluation of block 2 (Usually exceeds requirements) under performance and block 2 (Promote with contemporaries) under protential.  These evaluations by MAJ RB are substantially below those ratings and senior ratings previously rendered to the applicant by MAJ RB.  The Board also noted that, on 22 June 1998, the IG VA announced that MAJ RB had reprised against the applicant for his role in MSG KV's EO complaint.

The Board noted the BCOM evaluation by the SR on the contested OER.  The Board determined that this BCOM senior rating is adverse and should have resulted in the SR determining that his rating may have an adverse impact on the rated officer’s career.  Therefore, the Board determined that the contested OER should have been referred to the rated officer for acknowledgment and comment prior to forwarding it to Department of the Army officials.

	d.  The Board noted the negative SR comment in the contested OER:  "The support [the applicant] provides his subordinates is second to none; however, he could improve on the support rendered to the entire chain of command."  

	e.  The Board noted the EO complaints, IG inquiries and investigations under the provisions of Army Regulation 15-6 that were ongoing and completed during this rating period.  

	f.  The Board noted the senior rating in this particular report is well below the evaluations which the SR rendered in the applicant's previous OERs.  Additionally, the SR comments on this report lack substance and are less descriptive of the applicant's performance in comparison to previous senior ratings rendered by LTC TR.

	g.  Based on all of the foregoing, the Board determined the contested OER is inequitable and unjust absent proper explanation by the rater and the SR and/or without the opportunity for the applicant to rebut substantially lower evaluations by the rater and by the SR.  Specifically, in arriving at this decision, the Board noted that the rater had reprised against the applicant and the SR rendered a BCOM evaluation in Part VIIa (Potential Evaluation) and an adverse comment regarding loyalty in Part VIIb (Comments) of the contested OER.  Therefore, the Board determined that the contested OER should be removed in its entirety.

5.  The Board noted that the applicant was considered for, but not selected for, promotion to major in May 2002.  However, removal of the contested OER as stated in paragraph 4g, above, does not warrant promotion reconsideration because the applicant was erroneously considered.  Orders show that the applicant was separated from his ARNG and USAR status as a Reserve of the United States effective 1 November 2001.  As a result, the applicant was not in an active status at the time the promotion selection board convened and should not have been considered.  Therefore, the applicant's records should be corrected by removing the memorandum from the Office of Reserve Components Promotions, dated 16 July 2002, which advised of his nonselection, and to remove the applicant's name from all records related to the Fiscal Year 2002 Major (Reserve Components) Promotion Selection Board.  

6.  The Board considered the applicant's request to restore his Federal recognition.  In this matter, the Board reviewed all of the documentary evidence pertaining to withdrawal of the applicant's Federal recognition.  This included the applicant's submissions, the cited IG ROIs, the proceedings of the Withdrawal of Federal Recognition Board, the legal opinions, the advisory opinion by the ARNG Chief of Personnel and the correspondence among the various headquarters that were involved in this case.  Based on this evidence, the Board determined the following: 

	a.  The applicant is not entitled to "Whistleblower Protection" based on the determinations by the DAIG.  Further, the imposition of LORs by the TAG VA and the withdrawal of Federal recognition were not retribution for the applicant's involvement in MSG KV's EO complaint.  These sanctions against the applicant were the result of his own conduct and performance. 

	b.  The applicant's disrespect to his company commander, his conduct involving collusion with enlisted soldiers to present false information, and his disregard for good order and discipline as a result of excessive use of alcohol is conduct unbecoming an officer.

	c.  The applicant's loss of control of ammunition and loss of a government computer are serious matters and indicate lack of responsibility and inattention to detail which are not in keeping with the performance normally expected of officers in positions of responsibility and of the applicant's age, experience and length of service.

	d.  While the applicant's efforts to assure equal opportunity for one of his senior NCO's is commendable, the manner in which he approached this matter was certainly not appropriate for a commissioned officer.

	e.  Therefore, based on the foregoing, the Board concluded that empanelling a board of officers to consider withdrawal of his Federal recognition was appropriate.

7.  The Board also reviewed the procedural aspects of the withdrawal of Federal recognition process and determined that, although very lengthy, the recommendation process, the convening of the board and the approval authorities for the withdrawal actions were in accordance with regulation.

8.  The Board then examined the proceedings of the Withdrawal of Federal Recognition Board and the subsequent legal reviews and advisory opinions to determine if the applicant was treated equitably and justly.  Based on the facts in this case, the Board made the following determinations.

	a.  The primary evidence against the applicant was three IG reports whose release had been obtained as required by regulation.

	b.  This Board's review of the IG reports reveals that they had not been redacted as required by regulation.

	c.  This Board noted that Army regulation states while the use of IG records in adverse administrative actions is permitted, the regulation provides (1) that only the minimum amount of evidence necessary from the record will be used, preferably from documentary evidence and testimony for which consent to release was given and (2) that IG opinions, conclusions, and recommendations are not evidence and will not be used as a basis for adverse action.

	d.  The Board determined that entering complete IG records into evidence is contrary to regulation and provided information which could not be considered as evidence, but, if considered, was detrimental to the applicant’s case.

	e.  The Board also determined that the use of IG records in this case also denied the applicant his fundamental right to cross-examine those who made statements against him.

f.  Notwithstanding the fact that the applicant and his lawyer did not ultimately object to the entry of the IG records in their entirety into evidence, the Board believes that the applicant was substantially disadvantaged in this case by the use of the unredacted records and complete reports of investigation.

g.  The Board also noted the applicant continued to serve for over two years after notification of intent to withdraw his Federal recognition.  These OERs were center of mass, contained laudatory comments on his performance and potential, and is evidence the applicant was fit for further service.

9.  Based on consideration of all matters in this case, the Board has determined:

a. That, at the time in question, TAG VA was justified in seeking withdrawal of the applicant's Federal recognition from the VAARNG based purely on conduct and performance over a short period time.  Had this matter been concluded immediately after the events in question, it is highly probable that the applicant's Federal recognition would have been withdrawn.  As a result, the decision of the CNGB to withdraw the applicant's Federal recognition will stand.

b.  However, the applicant will retain his Reserve Commission in the USAR from 1 November 2001 as a matter of equity.  This decision is based on the fact the applicant was disadvantaged by the use of IG records, the length of time it took to accomplish the withdrawal of his Federal recognition, and in recognition of his good service, as evidence by his OERs, from 1998 until his separation on 1 November 2001.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

	a.  Removing the DA Form 67-8 of the individual concerned covering the period of service 1 August 1996 to 31 July 1997 and by replacing it with an appropriate non-prejudicial explanatory note showing this period of service was non-rated time.

	b.  Removing the name of the individual concerned from all promotion records related to the Fiscal Year 2002 Major (Reserve Components) Promotion Selection Board.

	c.  By removing from the OMPF of the individual concerned the US Total Army Personnel Command memorandum, dated 16 July 2002, which notified the applicant that he was considered for promotion to major, but was not selected.
	d.  By showing that the Federal recognition in the Virginia Army National Guard of the individual concerned was withdrawn effective 1 November 2001, but the individual concerned retained his U.S. Army Reserve commission as a captain/pay grade 0-3 and was transferred to the U.S. Army Reserve Control Group (Reinforcement) effective 2 November 2001.

	e.  By correcting his records to show that during the period from 1 November 2001 to the present the individual concerned received 50 retirement points each year and that this period is qualifying service for retirement purposes. 

2.  That, after the records of the individual concerned have been reconstituted and corrected as directed in the Proceedings of this Board, his records be considered for promotion to major by the Department of the Army Mandatory Promotion Board under the criteria for Fiscal Years 2002 and 2003. 

3.  That, upon completion of the promotion considerations specified in paragraph 2 , above, the individual concerned be notified of the results.

4.  That, if the individual concerned is selected for promotion then he be so notified and given an appropriate date of rank.

5.  That these Proceedings of the ABCMR and all allied papers be placed on the Restricted portion of the OMPF of the individual concerned and the original copies returned to the ABCMR for filing.

6.  That so much of the application as pertains to reinstatement of Federal recognition in the Army National Guard and restoration to a full-time position with back pay and allowances from 1 November 1998 be denied.

BOARD VOTE:  

__TSK__  __WDP__  __FCJ__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Mr. Ted S. Kanamine___
		        CHAIRPERSON

INDEX

CASE ID	AR2002069153	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030812	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT in part	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	110.0300.0000	
2.	125.0200.0000	
3.	111.0005.0000	
4.		
5.		
6.