IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150005500 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ____X____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150005500 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150005500 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests expunction of the Connecticut Army National Guard (CTARNG) Inspector General (IG) Report of Investigative Inquiry (ROII) 13-700XX, IG Action Request (IGAR) System database entry NCT 05-00XX, and retroactive promotion to the rank/grade of colonel (COL)/O-6, to include back pay and allowances effective 30 July 2013. 2. The applicant states: a. His Constitutional due process rights were violated by the inappropriate placement of the CTARNG IG ROII and IGAR in his records, resulting in his removal from the COL promotion list. He was informed by the Chief, Officer Adverse Information, Department of the Army Inspector General (DAIG), that the only way to clear this injustice was through the Army Board for Correction of Military Records (ABCMR). He requested to appear before the board in person, but he is in Afghanistan and will not return until January 2016. He may be able to come home on leave in the summer and would like to appear before the Board at that time if possible. He has exhausted all administrative remedies. b. Effective 12 March 2014, a Promotion Review Board (PRB) removed him from the COL/O-6 promotion list which was published on 30 July 2013. His removal was based on the existence of a substantiated IG complaint. The substantiation is identified in the documents he is requesting to have expunged, namely the ROII and the IGAR. c. The ROII completed by the CTARNG IG on 21 July 2005 was substantively and procedurally flawed. As a result, the information contained in IGAR NCT 05-00XX and DAIG ROII 13-700XX was erroneous. Additionally, the use of the ROII, IGAR, and the DAIG Report by the PRB is in contravention of Army Regulation 20-1 (Inspector General Activities and Procedures), paragraph 3-3. d. IGAR NCT 05-00XX was opened on 23 June 2005 after the CTARNG IG received an anonymous complaint that he was engaged in an inappropriate relationship. An informal Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation appointed by the then-CTARNG Chief of Staff to investigate the matter was concluded prior to completion of the ROII and closing of the IGAR on 19 July 2005. e. The Army Regulation 15-6 investigation, comprised solely of an incomplete DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) and accompanying legal review, was the only substantive evidence collected by the CTARNG IG. The ROII consisted of the incomplete DA Form 1574, the legal review of the Army Regulation 15-6 investigation, an IG "Results of Investigation" memorandum, and an electronic DA Form 1559 (IGAR). The incomplete Army Regulation 15-6 investigation was the sole substantive basis of the complaint against him. f. The ROII did not comport with the 29 March 2002 version of Army Regulation 20-1, paragraph 8-4c, which states an IG investigative inquiry is less formal than an IG investigation but must be conducted similar to an IG investigation. Such an investigation did not transpire in his case, resulting in a number of errors in the ROII. The ROII was not the subject of a legal review. Approval of the ROII is not documented. The ROII was not conducted following the procedures required of an IG investigation. Documented verbal notification of the appropriate commanders and supervisors was not present in the ROII. The ROII failed to indicate he was being investigated for violating Article 133 (Conduct Unbecoming an Officer) of the Uniform Code of Military Justice (UCMJ), an allegation that was later substantiated in the ROII. The UCMJ did not even apply to him as he was performing duty as an Active Guard Reserve (AGR) Soldier in the CTARNG under the authority of Title 32, U.S. Code, which a legal review would have surely caught. A written evaluation of the evidence was not included in the ROII as required by Army Regulation 20-1, paragraph 8-4b(5) – it did not reference the standards that were alleged to have been violated and did not even contain his marriage certificate. g. The ROII relies almost entirely on the informal Army Regulation 15-6 investigation as a basis for the ROII substantiation, which was in error as the Army Regulation 15-6 investigation was never completed as evidenced by being unsigned and taking no final action. Brigadier General (BG) R____, the general officer appointing the Army Regulation 15-6 investigating officer (IO), neither approved nor disapproved of the IO's findings and recommendations. To the best of his recollection and that of BG R____, BG R____ disposed of the matter by counseling him in accordance with Army Regulation 600-20 (Army Command Policy), paragraph 4-14f. h. During the investigation, he and his wife were never given an opportunity to provide sworn statements that would have included all the facts regarding their relationship. On 29 June 2005, the IO only asked him two questions: whether he married then-Staff Sergeant (SSG) P____ and whether he took responsibility for this actions. He responded "yes" to both questions. His wife, now-Chief Warrant Officer Three F____, was likewise asked only two questions by the IO on 7 July 2005: whether she married the applicant and whether their relationship continued as an employee of the CTARNG. She responded "yes" to both questions. i. In May 2005, he received counseling regarding his marriage from a judge advocate, then-Major (MAJ) T____, who stated their relationship and marriage were not in violation of Army Regulation 600-20, dated 13 May 2002. MAJ T____ based his determination on the definition of full-time National Guard duty (FTNGD) and the development of their relationship due to their off-duty civilian acquaintanceship. In the meantime, the IO revisited the case and reviewed the information that was not considered in 2005 and determined he would not have made the same recommendation he made in 2005 based on this information – the IO provided a memorandum in March 2015 stating so. j. His courtship with his wife could have objectively been interpreted to qualify as an exception to the prohibition against personal relationships between officer an enlisted personnel. He originally met his wife at an eye care store in Prospect, CT, while he was looking for sunglasses. He had been dismissed from duty for the day and was not in uniform. This location was her part-time civilian place of employment. While they interacted at their mutually assigned duty location at the time in Hartford, CT, where he served as an AGR officer and she served as a dual-status military technician in a "uniformed" civilian status, their personal relationship primarily grew out of an off-duty civilian acquaintanceship. k. Army Regulation 600-20, paragraph 4-14c(2)(d), did not explicitly include dual-status military technicians as FTNGD. There is nothing in the regulation that would imply dual-status military technicians were included in the definition of FTNGD. At best, it is ambiguous, thus the legal advice he relied on was sound and their relationship did not constitute an inappropriate relationship according to the applicable regulation in effect at the time. l. The IO never questioned the judge advocate from whom he received legal advice. There were incorrect assumptions made by both the CTARNG IG and the Army Regulation 15-6 IO. The lack of a thorough investigation, research, and application of the proper legal standard significantly contributed to the incorrect substantiation of the complaint against him. The ROII does not apply the standard required to substantiate the allegation. m. Army Regulation 20-1 paragraph 8-4j(1), states the conclusion of "substantiated" will be used when a preponderance of credible evidence, as viewed by a reasonable person, exists to prove the allegation. The CTARNG IG relied on an incomplete informal Army Regulation 15-6 investigation, which was technically incomplete and lacked significant attention to the details the IO was charged to investigate. The CTARNG IG did not make a finding of an inappropriate relationship between him and his wife – he only specifically found that they were married. The activity that took place between him and his wife before their marriage (him spending time in his wife's workspace and her supervisor's suspicion that "something was going on") constituted the evidence to support a finding of an inappropriate relationship. He and his wife both said they had a relationship that began in the fall of 2004, but they never qualified the nature of their relationship. In fact, the department supervisor indicated he was not aware that they had developed a relationship until it became common knowledge in the armory that they were married. n. The use of the ROII, IGAR, and the DAIG report by the PRB is in contravention of Army Regulation 20-1, paragraph 3-3, which states IG records will not be used as the basis for adverse action against individuals. The exception to the rule is when authorized by the Secretary of the Army (SA), the Under Secretary of the Army (USA), the Chief of Staff of the Army (CSA), the Vice Chief of Staff of the Army (VCSA), or The Inspector General (TIG). He has no evidence that these documents were specifically authorized by the SA for the use of the PRB. Adverse action is defined as any administrative or punitive action that takes away an entitlement, results in an entry or document added to the affected person's official personnel records that could be considered negative by boards or superiors, or permits appeal of the action. o. He is still happily married to his wife and they love their children. In 2014 they received the Family of the Year Award from the Connecticut Chapter of the Association of the U.S. Army. At the time of his courtship he did not believe he was in violation of Army regulations and he does not regret building a family with his wife. He consistently performed at a superior level since the investigation and continually earned superior officer evaluation reports. He commanded the CTARNG's Recruiting and Retention Battalion for 5 years, exceeding mission requirements every year. In 2014 he received the Distinguished Order of Saint Martin from the Quartermaster Association, Fort Lee, VA. In 2008 he deployed to Iraq for the Army's Center for Lessons Learned as the theater logistics officer. He was recently hand-picked to serve as the deputy commander for the 143rd Regional Support Group in response to a no-notice deployment to Afghanistan. He will graduate from the Army War College at Carlisle Barracks, PA, on 24 July 2015, which will only further develop his knowledge of national-level security issues and military operations, and contribute to his ability to continue to effectively serve as a valuable asset to the Army and the CTARNG. 3. The applicant provides: * table of contents * self-authored statement * Officer Record Brief * U.S. Army Human Resources Command memorandum, dated 27 August 2013, subject: Delay of Promotion and Referral to a Promotion Review Board * U.S. Army War College Academic Record, dated 19 June 2014 * U.S. Army Human Resources Command memorandum, dated 12 March 2014, subject: Promotion Review Board Results (PRB RP1312-14) * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) * SA memorandum for Deputy Chief of Staff, G-1, U.S. Army, dated 11 March 2014, subject: Promotion Review Board RP1312-14 Fiscal Year 2013, COL, ARNG of the United States, Army Promotion List (APL), Promotion Selection Board * U.S. Army Human Resources Command memorandum for record, dated 13 March 2014, subject: Promotion Review Board Results * CTARNG IG letter, dated 21 July 2005, subject: Results of Investigative Inquiry * IGAR for case number NCT 05-00XX * DAIG ROII 13-700XX * DAIG Records Screening and Oversight Office letter, dated 13 January 2014 * DAIG Record Screening and Oversight Division letter, dated 15 January 2015 * DA Form 1574 * CTARNG Staff Judge Advocate legal review of Army Regulation 15-6 Investigation, dated 20 July 2005 * Army Regulation 20-1 * Army Regulation 600-20 * CTARNG letter to the DAIG, dated 30 June 2014 * 18 letters of support and endorsement to the ABCMR * marriage certificate * Office of the Quartermaster General memorandum for the National Guard Bureau (NGB), dated 18 August 2005 * NGB memorandum to The Adjutant General of Connecticut, dated 24 August 2005 * two DA Forms 67-9 (Officer Evaluation Report) * 2004 W-2 (Wage and Tax Statement) * Certificate of Appreciation CONSIDERATION OF EVIDENCE: 1. Following commissioned service in the Regular Army, the applicant was appointed as a Reserve commissioned officer in the ARNG on 2 March 2000. He is currently serving in the CTARNG in an AGR status in the rank of lieutenant colonel. 2. A State of Nevada marriage certificate shows he and K____ M____ P____ were married in Las Vegas on 26 May 2005. 3. On 23 June 2005, an IO was appointed to commence an investigation under Army Regulation 15-6 into allegations the applicant engaged in an inappropriate relationship with a female enlisted Soldier, then-SSG P____. 4. The DA Form 1574, section IV (Findings), shows: * the allegation of an improper relationship existing between the applicant and then-SSG P____ was substantiated * the IO met with the applicant on 29 June 2005 * the applicant stated he married then-SSG P____ on 29 May 2005 and sought legal advice from two judge advocate officers who advised him that marriage would alleviate any regulatory issues found in Army Regulation 600-20, paragraph 4-14 * he was prepared to accept the ramifications of his actions if action were taken against him * on 29 June 2005, the IO spoke with the wife's supervisor, Chief Warrant Officer Two M____, who stated he noted the applicant spending an inordinate amount of time in the purchasing and contracting section around the fall of 2004, well beyond the requirements of his professional duties * the applicant's excess time in the section was spent specifically with then-SSG P____ * in December 2004, he asked the applicant to stop hanging around the purchasing and contracting section once his business was complete and asked then-SSG P____ not to spend as much non-business related time with the applicant while in the office * after this discussion, there was a decline in the amount of time the two spent together in the office * nonetheless, Chief Warrant Officer Two M____ suspected something was still going on and was prepared to report it to his supervisor, COL S____, but he dropped the issue upon learning of their marriage * Chief Warrant Officer Two M____ confirmed the applicant had no supervisory authority over anyone in the purchasing and contracting section * the IO spoke with COL S____ on 29 June 2005 who stated he was completely unaware that any relationship existed between the two until news that they were married became common knowledge in the Hartford Armory * the IO spoke with then-SSG P____ on 7 July 2005 * she verified she and the applicant were married and stated their relationship began in the late summer of 2004 as a result of their professional interaction as employees of the U.S. Property and Fiscal Office (USPFO) 5. On 23 June 2005, IGAR NCT 05-00XX was initiated based on an anonymous call to the IG office claiming the applicant engaged in fraternization by having a relationship with a female enlisted Soldier whom he then married. His command had learned of the allegations prior to the IG complaint and conducted an Army Regulation 15-6 investigation. 6. The IO completed his Army Regulation 15-6 recommendations and findings on 8 July 2005 and signed the DA Form 1574 in Section VI (Authentication). In Section V (Recommendations), the IO recommended the applicant and then-SSG P____ be disciplined by the command with a response that is warranted, appropriate, and fair. He recommended the USPFO ensure no conflict of interest exists in the obligations of funds regarding the marriage of the two. He also recommended the Judge Advocate General publish a ruling on whether the applicant's marriage nullified any wrongdoing under the provisions of Army Regulation 600-20, paragraph 4-14. Section VIII (Action by Appointing Authority) of the DA Form 1574 is neither signed nor filled out. 7. The IGAR shows the IG office received a copy of the completed Army Regulation 15-6 investigation on 19 July 2005, which was substantiated by the applicant's own admission that he engaged in an inappropriate relationship. The IGAR shows the case was closed using that information. There is no record of a subsequent ROII and legal review of the IG findings. There is no recorded allegation in the IGAR of conduct unbecoming an officer in violation of Article 133, UCMJ. 8. On 20 July 2005, the CTARNG Office of the Staff Judge Advocate provided a legal review of the Army Regulation 15-6 investigation. The investigation was found to be legally sufficient. The findings were determined to be supported by the evidence and the recommendations were supported by the findings. The Staff Judge Advocate stated the following in his legal review: * the marriage of the two itself was not a prohibited relationship – however, the conduct of the Soldiers prior to their marriage constituted an inappropriate relationship in violation of Army Regulation 600-20, paragraph 4-14 * according to the Army Regulation 15-6 findings, they engaged in a relationship that arose in 2004 from their professional duties where both were employed in the USPFO office as Soldiers in the CTARNG * the supervisor in the purchasing and contracting office noticed frequent questionable activity between the two and expressed his concerns about the activity and relationship * he did not find that the marriage nullified any wrongdoing * he recommended issuing written letters of counseling to both individuals as to the inappropriate relationship * he deemed the issuance of letters of counseling to be warranted, appropriate, and fair * the applicant, as a field-grade commissioned officer, and then-SSG P____, as a noncommissioned officer, should conduct themselves in strict accordance with the standards required of that status and be above reproach 9. On 21 July 2005, the CTARNG Office of the IG informed him via letter that the investigative inquiry was completed for allegations brought against him on 23 June 2005. The allegation that he conducted an inappropriate relationship with and married an enlisted Soldier in violation of Army Regulation 600-20 was substantiated. A new allegation that he displayed conduct unbecoming an officer in violation of Article 133, UCMJ, was substantiated. 10. On 7 February 2013, the Fiscal Year 2013, APL, Army National Guard of the United States, Promotion Selection Board recommended the applicant for promotion to COL. 11. On 2 April 2013, the Deputy Inspector General approved the IG Records Screening and Oversight Office recommendation to enter the substantiated finding into the IG database under DAIG ROII 13-700XX. DAIG ROII 13-700XX notes the following: * the allegation that the applicant had an inappropriate relationship with a married an enlisted soldier in violation of Army Regulation 600-20 was substantiated * in the final subject notification letter to the applicant, the field IG notified him of a second substantiated allegation, specifically that he displayed conduct unbecoming an officer in violation of Article 133, UCMJ * the field IG did not record this allegation in the IGAR System; this allegation was related to the already substantiated allegation of engaging in an inappropriate relationship and is therefore multiplicious * it may be reasonably inferred from the command Army Regulation 15-6 investigation that a dating relationship between the applicant and the enlisted Soldier began in late summer of 2004, which appeared to have begun in the office and not as the result of a civilian acquaintance * IGAR NCT 05-00XX was opened on 23 June 2005 and closed on 19 July 2005 with the substantiation of the allegation of engaging in an improper relationship, reflected in a DA Form 1574 * the field IG failed to prepare a ROII in accordance with Army Regulation 20-1 * the field IG was unable to provide any documentation reflecting a legal review of the substantiated allegation had been conducted 12. On 27 August 2013, the applicant was notified via memorandum from the U.S. Army Human Resources Command that the Army Deputy Chief of Staff, G-1, approved a post board screening process of all COL-level promotions in which all U.S. Army Criminal Investigation Command (CID), DAIG, and the restricted portion of military records were screened to isolate any case in which a selectee is or was the subject of substantive derogatory information. As a result, DAIG ROII 13-700XX was referred to a general officer review board and subsequently to a Department of the Army PRB, which further referred it along with a recommendation to the SA. 13. The applicant provided the President of the PRB with eight letters of endorsement in the month of September 2013, signed by four COLs, one command sergeant major, one chief warrant officer five, and two BGs, all strongly endorsing his retention on the Army COL Promotion Selection List. 14. In a letter, dated 9 September 2013, the applicant requested expunction of any and all documents related to DAIG ROII 13-700XX. He claimed the DA Form 1574 was not signed by the appointing authority, was incomplete, and was unaccompanied by supporting documentation; testimony and statements of each witness were not recorded verbatim or attached as an exhibit; the field IG simply adopted the findings of the DA Form 1574 and failed to adhere to due process considerations; and the IG failed to prepare a ROII. 15. On 13 January 2014, the IG Records Screening and Oversight Office informed him via letter that his request for expunction was reviewed and it was concluded that aside from the administrative flaws of the investigation, he provided no new evidence that would support a change of the substantiated finding. On 7 January 2014, the Acting Deputy IG approved the recommendation that the allegation remain substantiated. 16. On 11 March 2014, the SA directed removal of the applicant from the Fiscal Year 2013, COL, ARNG of the United States, APL, Promotion Selection List. On 12 March 2014, the U.S. Army Human Resources Command notified him via memorandum of the PRB results and the SA's subsequent directive to remove him from the promotion selection list. 17. The applicant provided the DAIG with two letters of support in the month of June 2014, requesting expunction of DAIG records. One letter is from his wife, a current chief warrant officer three, in which she states she and her husband first met at her part-time civilian job at an eye care center. The second letter is of particular note as it was authored by BG R____, the appointing authority for the Army Regulation 15-6 investigation, which substantiated his improper relationship. In BG R____'s letter to the DAIG, he states: * he supports granting the request for expunction of these records as this will permit the applicant's reinstatement on the promotion list * in 2005, the IG substantiated an allegation against the applicant based on an informal Army Regulation 15-6 investigation which he appointed * to the best of his recollection, he disposed of the matter by counseling the applicant in accordance with Army Regulation 600-20, paragraph 4-14f * the applicant is an outstanding officer and he fully supports his promotion to COL 18. On 30 June 2014, the Staff Judge Advocate for Joint Force Headquarters, Connecticut National Guard, prepared a memorandum for the DAIG pertaining to the applicant's request for expunction of DAIG ROII 13-700XX from his records. He argued the DAIG report should be expunged from the records based on the following reasons: * the DA Form 1574 was incomplete as the appointing authority did not complete Section VIII * the IO completing the DA Form 1574 did not make a finding in Section IV that an inappropriate relationship existed between the two parties and did not make a specific recommendation relative to any inappropriate relationship * the legal review of the Army Regulation 15-6 investigation found the marriage of the two was not a prohibited relationship but that the circumstances prior to their marriage constituted an inappropriate relationship * the indicia of the inappropriate relationship was the applicant spending an inordinate amount of time in the purchasing and contracting office, according to the office supervisor * the more senior office supervisor had no knowledge of a relationship between the two until after their marriage * the ROII does not comport with the governing Army Regulation 20-1, paragraph 8-4c, stating the IG investigative inquiry is less formal than an IG investigation and is used when there is an allegation that does not warrant an investigation * such an investigation will include a legal review of the ROII, which was absent in this case * the directing authority or command or State IG will approve the ROII and, although this investigation was IG directed, it should still contain approval * the ROII must follow the format of an ROI in accordance with Army Regulation 20-1, paragraph 8-4b * verbal notification of violation of Article 133, UCMJ, was not made to the applicant, although it was later substantiated * UCMJ did not apply to the applicant as he was performing duty under the authority of Title 32, U.S. Code, which a legal review of the ROII would have surely caught * the ROII did not contain a written evaluation of the evidence and did not include an ROI * the ROII did not even contain the standards that were alleged to have been violated or a marriage certificate to validate their marriage * the ROII does not apply the standard required to substantiate the allegation as an incomplete Army Regulation 15-6 investigation was used to substantiate the allegations * during the Army Regulation 15-6 investigation, neither party involved qualified the nature of their relationship which began in the fall of 2004 * the IG did not follow the procedures necessary to conduct an investigative inquiry * the applicant obtained letters from credible sources involved in the Army Regulation 15-6 investigation, supporting his contentions that the evidence did not warrant substantiation of the allegations 19. On 17 December 2014, The Adjutant General, Joint Forces Headquarters, Connecticut National Guard, wrote a memorandum to the president of the promotion board strongly endorsing the applicant's selection for promotion to the rank of COL by the Fiscal Year 2015 promotion board. 20. On 15 January 2015, the IG Record Screening and Oversight Division informed the applicant via letter that the DAIG completed a review of case NCT 05-00XX and determined the allegation remained unchanged and disapproved his request to expunge the record in the IGAR System because the record is not factually inaccurate. 21. The applicant provided seven letters of endorsement, dated between 5 February 2015 and 16 March 2015. Three of the letters attest to the applicant and his wife meeting while she was working at a civilian eye care store in 2004. One letter, written by the CTARNG Command Chief Warrant Officer, provides clarification on the status of the applicant's wife at the time of the initial investigation. On 16 April 2005, the applicant's wife submitted a Warrant Officer Pre-Determination Packet to the quartermaster proponent and received an approval memorandum on 24 August 2005. The Adjutant General, Joint Forces Headquarters, Connecticut National Guard, wrote a letter to the Board strongly endorsing the applicant's promotion to COL based on his leadership abilities, selfless service, honor, and integrity. The Adjutant General states the manner in which the applicant met and married his wife – and considering the fact that his command addressed or was in the process of addressing the matter in accordance with the governing Army regulation – leads him to feel he should not also have been the subject of an IG investigation. Additionally, the IG's handling of the matter unjustly resulted in denial of his promotion. The final two letters of endorsement were authored by two commissioned officers involved with the Army Regulation 15-6 investigation. 22. On 9 March 2015, the IO who was originally appointed to conduct the Army Regulation 15-6 investigation authored a letter to the Board wherein he stated additional facts unknown to him at the time of the investigation have recently come to light. a. Although he listed that the relationship had not started as the result of a civilian acquaintance on the DA Form 1574, this is clearly not the case. At the time of the investigation he was only able to conduct a brief and incomplete telephone interview with then-SSG P____ who was at a forward operating base preparing to deploy to Iraq. b. Although he received legal guidance from the then-serving State Judge Advocate, he never consulted with then-MAJ T____, a CTARNG judge advocate who provided guidance to the applicant. c. He was unaware at the time of the pertinence of the division of then-SSG P____'s Reserve military and full-time military technician status. He was unaware they had already been married at the time of the investigation. He is now aware that the applicant met his wife at her part-time civilian place of employment during off-duty hours while in civilian attire. He was also unaware that then-SSG P____ was awaiting the results of her predetermination for warrant officer. d. It is now his understanding that under the provisions of Army Regulation 600-20, dated 13 May 2002, then-SSG P____'s status as a dual-status military technician did not clearly qualify her as FTNGD for purposes of the exception to the prohibition within the regulation. Even prior to their marriage, he now understands their relationship could have reasonably been construed as being in compliance with Army Regulation 600-20, paragraph 4-14. e. He would not have made a finding of the existence of an inappropriate relationship at the time if he had a more thorough understanding of the full facts and circumstances surrounding their relationship in 2005. 23. On 16 March 2015, Lieutenant Colonel T____, the then-MAJ who provided the applicant with legal counsel in May 2005, authored a letter to the Board. He stated the purpose of his letter was to express his support for the applicant's requested correction of his records. a. On or about 9 May 2005 while serving as a judge advocate in the CTARNG, he provided the applicant counsel regarding Army Regulation 600-20 and prohibited relationships between Soldiers of a different rank. To the best of his recollection, he advised that a relationship between an AGR MAJ and an M-day (one who performs weekend drill, but is not on full-time duty) SSG who also worked as a full-time military technician and maintained part-time civilian employment could be permissible under the facts and circumstances as they were presented. Those facts included an acquaintanceship initially gained through off-duty civilian interaction at the SSG's place of part-time civilian employment. b. Following a brief break in the relationship, it resumed with an intent to marry while the SSG simultaneously submitted an application to become a warrant officer. His opinion was based on the 13 May 2002 version of the regulation. In that version of the regulation, status as a dual-status military technician did not qualify as FTNGD under paragraphs 4-14c(2)(d)-(e) or, at a minimum, was ambiguous and could reasonably be understood to exclude dual-status military technicians. The ambiguity was confirmed and resolved by later revisions of that paragraph in the regulation in which dual-status military technicians are included along with active duty and FTNGD in similar subsections of the regulation. c. He was not asked nor did he voluntarily provide a statement to the IO at the time of the applicant's informal Army Regulation 15-6 investigation. 24. An advisory opinion pertaining to the applicant's case was provided by the CTARNG Assistant Adjutant General on 14 July 2015. The memorandum states the CTARNG's position is that the applicant suffered an injustice as the IG's investigation was flawed and did not comply with its own regulations and standards. The IO used an unsigned DA Form 1574 to substantiate the allegation, did not obtain a legal review of his findings, and substantiated the applicant violated the UCMJ although he was not subject to the UCMJ, but rather Title 32, U.S. Code. Due to this substandard filing of the ROII, it should be expunged from the IGAR System of records and the applicant should be permitted to continue serving. 25. An advisory opinion pertaining to the applicant's request was likewise provided by NGB on 5 August 2015. The memorandum states the NGB's position is that the applicant suffered an injustice due to a flawed investigation and failure to follow established regulations and standards. He was a Title 32 AGR officer and his spouse was an enlisted dual-status military technician in a "uniformed" civilian status at the time of their marriage in 2005. The applicant, supported by statements from other service members, claimed to have met his wife at the place of her part-time civilian employment after duty hours and their relationship began as a result of this meeting. The 2002 version of Army Regulation 600-20 did not explicitly include dual-status military technicians as FTNGD and did allow for personal relationships outside of marriage when the relationship primarily existed due to civilian acquaintanceship unless serving on active duty or FTNGD. Their relationship was probably not in violation of the 2002 version of the regulation. Additionally, the use of the ROII, IGAR, and DAIG ROII by the PRB is in violation of Army Regulation 20-1, paragraph 3-3, as there is no evidence their use was explicitly authorized by the SA, USA, CSA, VCSA, or TIG. The applicant received numerous letters from senior officers associated with the original investigation supporting removal of the requested documents. REFERENCES: 1. Army Regulation 600-20, in effect at the time, prescribed policy on basic responsibilities of command, military discipline and conduct, and enlisted aspects of command. a. Paragraph 4-14c stated certain types of personal relationships between officers and enlisted personnel are prohibited. Prohibited relationships include dating, shared living accommodations other than those directed by operational requirements, and intimate or sexual relationships between officers and enlisted personnel. This prohibition does not apply to: (1) marriages and (2) personal relationships outside of marriage between members of the National Guard or Army Reserve, when the relationship primarily exists due to civilian acquaintanceships, unless the individuals are serving on active duty (other than annual training) or FTNGD (other than annual training). b. Paragraph 4-14f stated commanders should seek to prevent inappropriate or unprofessional relationships through proper training and leadership by example. Should inappropriate relationships occur, commanders have available a wide range of responses. These responses may include counseling, reprimand, order to cease, reassignment, or adverse action. Potential adverse action may include official reprimand, adverse evaluation reports, nonjudicial punishment, separation, bar to reenlistment, promotion denial, demotion, and courts-martial. Commanders must carefully consider all of the facts and circumstances in reaching a disposition that is warranted, appropriate, and fair. c. The Glossary, Section I (Abbreviations), defined FTNGD as full-time National Guard duty. Neither Section II (Terms) nor Section III (Special Abbreviations and Terms) further defines FTNGD. 2. Per Title 10, U.S. Code, section 101 (Definitions), the term "full-time National Guard duty" is defined as "training or other duty, other than inactive duty, performed by a member of the Army National Guard of the United States or the Air National Guard of the United States in the member's status as a member of the National Guard of a State or territory, the Commonwealth of Puerto Rico, or the District of Columbia under section 316, 502, 503, 504, or 505 of Title 32 for which the member is entitled to pay from the United States or for which the member has waived pay from the United States." 3. Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive. a. Paragraph 1-5 states an administrative fact-finding procedure under this regulation may be designated an investigation or a board of officers. The proceedings may be informal or formal. Proceedings that involve a single IO using informal procedures are designated investigations. Proceedings that involve more than one IO using formal or informal procedures or a single IO using formal procedures are designated a board of officers. b. Paragraph 2-3 advises on the action of the appointing authority. It states unless otherwise provided by another directive, the appointing authority is neither bound nor limited by the findings or recommendations of an investigation or board. Therefore, the appointing authority may take action less favorable than that recommended with regard to a respondent or other individual, unless the specific directive under which the investigation or board is appointed provides otherwise. The appointing authority may consider any relevant information in making a decision to take adverse action against an information, even information that was not considered at the investigation. Generally, procedural errors or irregularities in an investigation or board do not invalidate the proceeding or any action based on it. No error is substantial within the meaning of this paragraph if there is a failure to object or otherwise bring the error to the attention of the legal advisor or the president of the board at the appropriate point in the proceedings. Accordingly, errors described in this paragraph as substantial may be treated as harmless if the respondent fails to point them out. c. Paragraph 3-14 states for a formal investigation, if a verbatim record of the proceedings was directed, the transcript of those proceedings, with a completed DA Form 1574 with enclosures and exhibits, will constitute the report. In an informal investigation or board, the report will be written unless the appointing authority has authorized an oral report. Written reports of informal investigations will use a DA Form 1574; however, its use is not required unless specifically directed by the appointing authority. Every report, oral or written, on a DA Form 1574 or not, will include findings and, unless the instructions of the appointing authority indicate otherwise, recommendations. d. Paragraph 3-17 states that unless otherwise directed, a written report of proceedings will be authenticated by the signature of the IO or of all voting members of the board and the recorder. e. Paragraph 3-19 states a written report of proceedings will be submitted in two complete copies directly to the appointing authority or designee unless the appointing authority or another directive provides otherwise. f. Paragraph 3-20 states the appointing authority will notify the IO or president of the board if further action, such as taking further evidence or making additional findings or recommendations, is required. 4. Army Regulation 20-1, in effect at the time, prescribed the responsibilities and policies for the selection and duties of IGs throughout the Army. It described IG functions, including teaching and training, inspections, assistance, and investigations. a. Paragraph 3-1 stated all IG records, including U.S. Army Reserve, ARNG, and ARNG of the United States IG records, are the property of the SA. IGs maintain these records on behalf of the SA. b. Paragraph 3-3 stated IG records would not be used as the basis for adverse action against any individual unless specifically authorized by the SA, USA, CSA, VCSA, or TIG. c. Paragraph 3-8 stated all requests for amendment of IG records concerning matters of opinion, judgment, or conclusion would be forwarded to the Records Release Office for referral to the appropriate division within DAIG for review prior to action by TIG. Requests for amendments concerning opinion, judgment, or conclusion would only be granted upon a showing of fraud, mistake of law, mathematical miscalculation, or newly discovered evidence. d. Paragraph 4-2 provided guidance regarding the IGAR process. It stated the DA Form 1559 would be completed by the IG for all requests for assistance presented to an IG. Anyone may submit a complaint, allegation, or request for information or assistance to any Army IG concerning matters of Army interest. Anonymous IGARs will not be ignored. IGs will take action to resolve them and protect the interests of the Government. The determination of the facts and circumstances related to the IGAR is the IG's primary concern. e. Paragraph 4-6 stated any allegation presented to an Army IG against a master sergeant, sergeant major, command sergeant major, or any Army officer in the grade of MAJ through COL that resulted in the initiation of an IG investigation or investigative inquiry or a command-directed action such as an Army Regulation 15-6 investigation, commander's inquiry, referral to CID, and so forth, would be reported to TIG. Army Regulation 600-8-29 (Officer Promotions) establishes a requirement for a review of IG records in conjunction with senior officer promotion boards. Other IG records reviews are conducted at the direction of senior Army leaders. f. Paragraph 8-1 stated the IG investigation function encompasses two fact-finding methodologies: an IG investigation and an investigative inquiry. An IG investigation is a fact-finding examination by a detailed IG into allegations, issues, or adverse conditions to provide the directing authority a sound basis for decisions and actions. IG investigations normally address allegations of wrongdoing by an individual and are authorized by written directives. An investigative inquiry is the fact-finding process followed by IGs to gather information needed to address allegations of impropriety against an individual that can accomplish the same objectives as an IG investigation. Command and State IGs normally use this investigative process when the involvement of the directing authority is not foreseen. The command or State IG typically directs the investigative inquiry and provides recommendations to their commander or to subordinate commanders as appropriate. The investigative inquiry is the primary fact-finding process used by IGs to address allegations. g. Paragraph 8-2 stated IG investigators would: * conduct IG investigations and investigative inquiries * make or obtain conscious decisions on disposition of all allegations * obtain evidence sufficient to determine that an allegation is either substantiated or not substantiated – * preponderance of credible evidence is the standard of proof IGs use to substantiate or not substantiate allegations * preponderance is defined as "superiority of weight" * word allegations carefully, a substantiated allegation must always represent an impropriety * include a complete, objective, and impartial presentation of all pertinent evidence gathered during the investigation/inquiry in the ROI or ROII * the report should stand alone and should be fully understood by anyone who reads it h. Paragraph 8-3 stated IGs should not normally investigate or conduct investigative inquiries when substantiation of allegations appears certain at the outset of the IG analysis of the IGAR and it appears certain adverse actions against individuals will occur or the chain of command decides to address the issues and allegations. If a subordinate commander has the ability to conduct a commander's investigation or inquiry, the IG should afford the subordinate commander the opportunity unless otherwise directed by the IG's commander and directing authority. i. Paragraph 8-4 stated the IG investigative inquiry is less formal than an IG investigation and is used when there is an allegation that does not warrant an investigation. IGs will conduct the investigative inquiry similar to an IG investigation with the following exceptions: * the command or State IG may direct the investigative inquiry * witness statements are not required to be sworn and recorded testimony * a written legal review of the ROII from the supporting judge advocate will be obtained when there is a substantiated allegation * the directing authority or the command or State IG will approved the ROII * all above actions will be documented and enclosed in the ROII * if the allegation in the IG investigative inquiry is substantiated, it is mandatory for all Army IGs to formally notify the subject in writing as to the conclusions * two investigative conclusions will be used by IGs * the conclusions will contain the specific allegation and state that the allegation occurred (substantiated) or did not occur (not substantiated) * the conclusion of "substantiated" will be used when a preponderance of credible evidence, as viewed by a reasonable person, exists to prove the allegation * the conclusion of "not substantiated" will be used when a preponderance of credible evidence, as viewed by a reasonable person, does not exist to support the allegation j. Paragraph 8-7 detailed preparation of ROI and ROII. It stated the main body of the ROI/ROII would be forwarded to the supporting judge advocate or command counsel for legal review and consist of: * introduction (option) * consideration of allegations in light of the relevant evidence – the complaint, the standard alleged to have been violated, documentary evidence, testimony and statements, a concise analysis/discussion of the evidence, and a clear conclusion of "substantiated" or "not substantiated" 5. Army Directive 2010-10 (Enhancement of the Promotion Review Board), dated 3 December 2010, signed by the SA, states: a. Meeting the leadership needs of our Army demands that we promote the best qualified officers. Officers must meet statutory requirements for exemplary conduct, set forth in Title 10, U.S. Code, section 3583. To this end, Department of the Army policy mandates the review of promotion lists to ensure that no officer is promoted when there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified or unsuited to perform the duties of the next higher grade to which he or she was selected for promotion. The PRB process is a critical element of the Army's officer promotion program. It is the SA's intent to ensure a robust PRB process that thoroughly examines information adverse to an officer and carefully weights such information in making recommendations as to whether an officer should be retained on or removed from a promotion list. b. Notwithstanding any provision of extant regulation, pamphlet, policy, standing operating procedure, or common practice, the following shall apply to all PRBs convened under provisions of Army Regulation 600-8-29, chapter 8; Army Regulation 135-55, paragraph 3-18; and Army Regulation 135-156 (Reserve Component General Officer Personnel Management), paragraph 5-4: (1) In all cases referred to a PRB on the basis of adverse information set forth in an inquiry or investigation by CID or the DAIG, CID and DAIG shall provide to the Office of the Deputy Chief of Staff, G-1, or the General Officer Management Office, as appropriate, a complete copy of the base report of the inquiry or investigation from which the adverse information is drawn, redacted in accordance with the Freedom of Information and Privacy Acts to ensure maximum disclosure while protecting witness identities as authorized by law and regulation. (2) PRB memoranda of instructions will be modified to emphasize that all information provided to the members of the PRB is "For Official Use Only" and may not be further disseminated absent the specific written approval of the Deputy Chief of Staff, G-1. It will include a warning that taking or threatening to take unfavorable personnel action or withholding favorable personnel action in reprisal against a person who has made a protected communication to CID or DAIG may constitute a violation of whistleblower protection or other laws or regulations. 6. Army Regulation 135-155 (Promotion of Commissioned Officer and Warrant Officers Other than General Officers) states: a. If the SA recommends removal of the name of an officer from a selection board's report and the recommendation includes information that was not presented to the selection board, the information will be made available to the officer. The officer will be allowed a reasonable opportunity to submit comments on that information to the officials making the recommendation and the officials reviewing the recommendation. If the officer cannot be given access to the information for reasons of National security, the officer will, to the maximum extent practicable, be provided with an appropriate summary of the information. An officer who has been provided with 14 days from the date of receipt of such information to submit comments is considered to have been provided a reasonable opportunity, unless good cause is shown. Proof of notification will be included in the file. b. Promotion advisory boards will be convened to consider the promotion status of officers who are recommended for removal from a promotion list based on physical, personal or professional disqualification. The board's recommendation for removal will be forwarded through the Deputy Chief of Staff, G-1, and the SA to the Secretary of Defense. 7. The UCMJ (Title 10, U.S. Code, chapter 47) is the foundation of military law in the United States. The UCMJ applies to all members of the Uniformed Services of the United States: Air Force, Army, Coast Guard, Marine Corps, Navy, National Oceanic and Atmospheric Administration Commissioned Corps, and Public Health Service Commissioned Corps. a. Members of the military Reserve Components under Title 10, U.S. Code (Army Reserve, Navy Reserve, Marine Forces Reserve, and Air Force Reserve), or Title 14, U.S. Code (Coast Guard Reserve when not operating as part of the U.S. Navy), are subject to the UCMJ if they are either: (1) active duty full-time support personnel such as AGR or (2) traditional part-time Reserve personnel performing either: (a) full-time active duty for a specific period (i.e., annual training, active duty for training, active duty for operational support, active duty special work, 1-year recall, 3-year recall, canvasser recruiter, mobilization, etc.) or (b) performing inactive duty (i.e., inactive duty training, inactive duty travel and training, unit training assembly, additional training periods, additional flying training periods, Reserve management periods, etc., all of which are colloquially known as "drills"). b. Soldiers and airmen in the National Guard of the United States are subject to the UCMJ only if activated in a Federal capacity under Title 10 by an executive order issued by the President. Otherwise, members of the National Guard of the United States are exempt from the UCMJ. However, under Title 32 orders, National Guard Soldiers are still subject to their respective State codes of military justice. 8. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, states applicants do not have a right to a formal hearing before the ABCMR. The Director, ABCMR may grant a formal hearing whenever justice requires. Although the applicant has requested to personally appear before the Board, there is sufficient evidence available for a fair and impartial consideration of his case without such an appearance. DISCUSSION: 1. The applicant's request for expunction of the CTARNG IG ROII 13-700XX, IGAR System entry NCT 05-00XX, and retroactive promotion to the rank/grade of COL/O-6 was carefully considered. 2. Despite the applicant's arguments to the contrary, the Army Regulation 15-6 investigation which substantiated an improper relationship between him and then SSG P____ was not conducted in contravention to any regulatory guidance. A properly appointed IO conducted the investigation and reported his findings as required on a DA Form 1574, which he authenticated with his signature in accordance with regulatory guidance for informal procedures. 3. Also contrary to one of the arguments put forward, the IO did, in fact, substantiate the finding of an improper relationship existing between the two in Section IV of the DA Form 1574. He interviewed both parties involved and they verified they were married in May 2005. He annotated on the form that then-SSG P____ stated, "their relationship began in the late summer of 2004 as a result of their professional interaction as employees of the USPFO." It is also annotated on the form in which then-SSG P____'s office supervisor, a disinterested party, stated the applicant spent an inordinate amount of time in the office beyond the normal requirements of his professional duties, specifically with SSG P____, in the fall of 2004 and he asked the applicant to stop hanging around the office once his business was complete in December of 2004, which the applicant did heed. Nonetheless, after the December 2004 request, he still believed something was "going on" between the two and he intended to notify his supervisor until he learned of their marriage. 4. The applicant, his wife, and multiple other commissioned officers, warrant officers, and noncommissioned officers provided current written statements to the Board, stating the two parties met while then-SSG P____ was working at her part-time off-duty job at a civilian eye care center and that neither individual was in uniform or on duty. The fact that the two might have initially met for the first time while the applicant was shopping for sunglasses at a civilian store as opposed to at work does not necessarily constitute meeting the intent of the exclusion in the regulation allowing for a relationship between officer and enlisted personnel that existed primarily due to civilian acquaintanceships. There is no indication in any of the letters, to include those of the applicant and his wife, that their ongoing, personal, prohibited relationship (defined in the regulation as dating, shared living accommodations other than those directed by operational requirements, and intimate or sexual relationships) was fostered and continued off duty through their mutual continued interaction at the eye care center and not at work. 5. It is accepted as fact that he first met his wife at her part-time civilian employment. Even so, he failed to prove that the relationship existed primarily due to a civilian association, as was the standard in Army Regulation 600-20, paragraph 4-14e, in effect at the time. This is further evidenced by the noticeable and repeated interactions and unprofessional lingering at her work center in the CTARNG USPFO office. 6. Based on the substantiation of the allegation, the IO made a recommendation in Section V of the DA Form 1574 that both parties be disciplined by the command with a response that is warranted, appropriate, and fair. The appointing authority, BG R____, did not sign the DA Form 1574 in Section VIII for unknown reasons and likewise did not return the proceedings to the IO for further proceedings or corrective action. Army Regulation 15-6 states the appointing authority will notify the IO or president of the board if further action, such as taking further evidence or making additional findings or recommendations, is required, but it does not mandate his/her authentication of the form. Additionally, procedural errors or irregularities in an Army Regulation 15-6 investigation or board do not generally invalidate the proceeding or any action based on it. 7. Any administrative errors in the DA Form 1574 do not invalidate the findings or make the report unreliable or unjust. The applicant had an opportunity to respond to the report and neither its conclusions nor its use by the PRB was unjust. For relief, the applicant must demonstrate an error that would materially affect the outcome and he failed to meet that burden. 8. While the applicant convincingly argues the ROII failed to indicate he was being investigated for a violation of Article 133 of the UCMJ, the Article 133 allegation covered the exact same course of conduct he was being investigated for, merely giving it a different label. Accordingly, its inclusion or exclusion in the report would not have materially changed the outcome. He was aware of the nature of the investigation and suffered no prejudice. He further argues the UCMJ did not even apply to him at the time of the offense due to his status in the AGR Program. Even so, Army Regulation 600-20 did apply to him at the time of the offense and the investigation is clear in that he violated the regulation, thus he was not materially prejudiced by the reference to the UCMJ. 9. The IO obtained a legal review of the Army Regulation 15-6 investigation performed by the CTARNG Staff Judge Advocate on 20 July 2005. In the review, the Staff Judge Advocate opined that the investigation, which substantiated an inappropriate relationship in violation of Army Regulation 600-20, paragraph  4-14, was legally sufficient, the findings were supported by the evidence, and the recommendations were supported by the findings. Although their marriage in May 2005 in itself did not constitute a prohibited relationship, their relationship which began in 2004 from their professional duties did constitute an inappropriate relationship. Their marriage did not nullify any wrongdoing that transpired prior to their marriage. He recommended both parties receive letters of counseling. 10. BG R____, the appointing authority for the Army Regulation 15-6 investigation, authored a letter to the DAIG on 23 June 2014, supporting the applicant's request for expunction of IG records pertaining to substantiation of an allegation based on that Army Regulation 15-6 investigation. He stated that granting the request would permit the applicant's reinstatement on the promotion list, which he fully supports as the applicant is an outstanding officer. In this letter, he stated, "to the best of my recollection, I disposed of the matter by counseling [the applicant] in accordance with Army Regulation 600-20, paragraph 14-4f." BG R____'s letter does not address why he did not sign the DA Form 1574 or suggest that he believes the investigation and substantiation of wrongdoing were in error or that he returned it to the IO for deficiencies. In lieu of suggesting the investigation he ordered was flawed or erroneous, he states he chose to counsel the applicant regarding prohibited relationships as his response to the findings, implying it was correctly substantiated the applicant had indeed engaged in wrongdoing. 11. The IO wrote a letter addressed to the ABCMR on 9 March 2015, stating he would not have made a finding of the existence of an inappropriate relationship had he had a better understanding of the full facts and circumstances surrounding the relationship in 2005. He stated he was not aware their relationship began when they met at her part-time civilian place of employment, he was not aware of the ambiguity as to whether her status as a dual-status military technician was considered FTNGD, and he was not aware they were married at the time of the investigation. The IO's letter does not explain the discrepancy between his current statements and the initial report that clearly states the two were married in May 2005 (thus he must have been aware of the marriage at the time) and that then-SSG P____ claimed, "their relationship began in the late summer of 2004 as a result of their professional interaction as employees of the USPFO." It is unclear whether he is now claiming then-SSG P____ did not make that statement as annotated on the report. 12. The version of Army Regulation 600-20 in effect at the time does not clearly define FTNGD, potentially leaving ambiguous whether dual-status military technicians are included in that status, thus either exempt or not exempt from the prohibition of certain officer/enlisted relationships. The current version of Army Regulation 600-20 clearly includes dual-status military technicians as not being exempt from the prohibition. Title 10 defines FTNGD as, "training or other duty, other than inactive duty, performed by a member of the Army National Guard of the United States or the Air National Guard of the United States in the member's status as a member of the National Guard of a State or territory, the Commonwealth of Puerto Rico, or the District of Columbia under section 316, 502, 503, 504, or 505 of Title 32 for which the member is entitled to pay from the United States or for which the member has waived pay from the United States." 13. Although the version of Army Regulation 600-20 in effect at the time was vague in that it did not explicitly state dual-status military technicians were considered FTNGD, the regulation need not explicitly list every example of a FTNGD member to include those not listed. That a later version of the regulation more explicitly includes dual-status military technicians in the FTNGD officer/enlisted relationship prohibition does not lead one to conclude the relationship was not prohibited at the time or that the applicant, as a field-grade officer, should not have reasonably known it was both unprofessional and prohibited since both worked in uniform at the same unit and she was enlisted. Any belief or understanding otherwise is not reasonable. 14. Despite the fact he sought advice from a judge advocate in May 2005 regarding the relationship and discussed the effect of marriage and that such marriage was legal, that discussion was well after they had already begun the relationship in the fall of 2004 and engaged in the conduct that was the subject of the substantiated allegation. Such after-the-fact discussion does not absolve the applicant from the underlying conduct. 15. As the result of an anonymous call to the CTARNG IG office claiming the applicant engaged in fraternization by having a relationship with a female enlisted Soldier whom he then married, IGAR NCT 05-00XX was initiated on 23 June 200 5. His command had learned of the allegations prior to the IG complaint and conducted an Army Regulation 15-6 investigation. Army Regulation 20-1 requires completion of a DA Form 1559 by the IG for all requests for assistance presented to an IG, even anonymous requests. 16. Upon receipt of the completed Army Regulation 15-6 investigation, to include a legal review which substantiated the allegation of an inappropriate relationship and recommended appropriate disciplinary action, the IG used the substantiating report from the Army Regulation 15-6 investigation to likewise substantiate the allegation and close the case on 19 July 2005. Army Regulation 20-1 states IGs should not normally investigate or conduct investigative inquiries when substantiation of allegations appears certain at the outset of the IG analysis of the IGAR, and it appears certain adverse actions against individuals will occur or the chain of command decides to address the issues and allegations. If a subordinate commander has the ability to conduct a commander's investigation or inquiry, the IG should afford the subordinate commander the opportunity unless otherwise directed by the IG's commander and directing authority. This transpired through the Army Regulation 15-6 investigation. 17. Army Regulation 20-1 also states that if an investigative inquiry is conducted, it will include an ROII (a complete, objective, and impartial presentation of all pertinent evidence gathered during the investigation/inquiry) with a written legal review of the ROII from the supporting judge advocate when there is a substantiated allegation. There is no indication that at the time of the IGAR, an ROII which received legal review was prepared. 18. The applicant was notified of the results of the CTARNG IG investigative inquiry on 21 July 2005. He was informed that the allegation that he conducted an inappropriate relationship with and married a Soldier of a different rank in violation of Army Regulation 600-20 was substantiated. Regulatory guidance states a conclusion of "substantiated" will be used when a preponderance of credible evidence, as viewed by a reasonable person, exists to prove the allegation. It was reasonable for the CTARNG IG to deem the completed Army Regulation 15-6 investigation as a preponderance of credible evidence. He was also informed in that letter that the allegation that he displayed conduct unbecoming an officer in violation of Article 133, UCMJ, was substantiated. The IGAR does not reference the second allegation whatsoever. Additionally, the applicant was not subject to Article 133, UCMJ, as he was an AGR officer under Title 32 orders. 19. On 7 February 2013, the Fiscal Year 2013, APL, ARNG of the United States, Promotion Selection Board, recommended the applicant for promotion to COL. Army Directive 2010-10 (Enhancement of the Promotion Review Board), signed by the SA on 3 December 2010, specifically allows for the use of records from CID, DAIG, and the restricted folder of personnel records to be reviewed by a post-board screening process which serve as an important component in ensuring accountability and integrity in the promotion process. 20. On 2 April 2013, the Deputy IG approved the recommendation of the IG Records Screening and Oversight Office to enter the one substantiated finding of engaging in an inappropriate relationship from the IGAR into the IGAR System database under DAIG ROII 13-700XX. The allegation listed in his notification letter from 2005 referencing Article 133, UCMJ, is not included in the IGAR System database and is not substantiated in this report's summary. According to the document itself, it was reviewed by the DAIG Legal Office on 27 March 2013. 21. On 27 August 2013, the applicant was notified that the information contained in DAIG ROII 13-700XX warranted referral to a PRB. On 11 March 2014 as the result of the PRB, the applicant was removed from the promotion selection list at the directive of the SA. 22. The applicant requested expunction of all records pertaining to the substantiation of an improper relationship. On 13 January 2014 and again on 15 January 2015, he was notified that the DAIG reviewed his requests and denied them, concluding that aside from administrative flaws of the IG investigation, the record is not factually inaccurate and he provided no new evidence that would support a change of the substantiated finding. Army Regulation 20-1 states all requests for amendment of IG records concerning matters of opinion, judgment, or conclusion will be forwarded to the Records Release Office for referral to the appropriate division within DAIG for review prior to action by TIG. Requests for amendments concerning opinion, judgment, or conclusion will only be granted upon a showing of fraud, mistake of law, mathematical miscalculation, or newly discovered evidence. There is no evidence of record of fraud, mistake of law, mathematical miscalculation, or newly discovered evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005500 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005500 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2