IN THE CASE OF: BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150007227 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. The applicant requests, in effect, reinstatement of his rank to sergeant first class (SFC)/E-7. 2. The applicant states: a. He was falsely reduced in rank due to "double jeopardy" by an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) informal investigation. The first investigation was conducted from 14 May to 25 June 2014. The second investigation was conducted 4-25 November 2014. It was the same case and evidence. b. He is an Active Guard Reserve (AGR) Soldier and was promotable to master sergeant (MSG)/E-8. c. Senior-grade noncommissioned officers (NCOs) must go through an administrative reduction board. d. His reduction orders stated misconduct, but there has not been any evidence presented for actions of misconduct or counseling in accordance with regulations. e. This is a "double jeopardy" Army Regulation 15-6 investigation which was reopened, but no new evidence was found or presented. The investigating officer from the first investigation presented himself to him, showed him his appointment orders and reasoning for the investigation, conducted the rights warning statement with him, and proceeded with the investigation. The investigating officer found him "at no fault or liability of default and was entitled to pay." f. He was never made aware of a second investigation. He never saw the investigating officer. The investigation was conducted in November 2014, but he was not told about the second investigation until 6 February 2015 after the new Adjutant General was appointed over the Georgia Army National Guard (GAARNG). g. The Trial Defense Service (TDS) for Georgia told him he did not have the right to know he was under investigation a second time, but four different TDS officers stated differently on this matter. His appeal and amended appeal were never reviewed. h. The "double jeopardy" investigation was conducted with no new evidence. He was targeted to tarnish his record and image due to irresponsibility of the administration. He was proven not at fault or liability. 3. The applicant provides: * DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 25 June 2014, with supporting documentation * DA Form 1574, dated 25 November 2014, with supporting documentation * miscellaneous Army Regulation extracts * appeal and amended appeal * Georgia National Guard (GANG) Form 0059 (Record of Proceedings under Nonjudicial Punishment (NJP)) * promotion orders * reduction orders * proficiency pay orders * DA Form 2166-8 (NCO Evaluation Report) * GAARNG correspondence to a Member of Congress * appointment memorandum * email CONSIDERATION OF EVIDENCE: 1. Having prior enlisted service in the Regular Army, the applicant enlisted in the GAARNG on 28 January 2000. He entered active duty in an AGR status on 24 September 2006. He was promoted to SFC effective 15 April 2008. 2. Headquarters, 3rd Squadron, 100th Cavalry Regiment, Orders 267-001, dated 23 September 2008, awarded him Special Duty Assignment Pay (SDAP) effective 15 January 2008. 3. A DA Form 1574, dated 25 June 2014, shows an informal Army Regulation 15-6 investigation was conducted into the circumstances surrounding the applicant's receipt of SDAP in accordance with his duties as a unit career counselor during the period January 2008 to May 2014. The investigating officer found there was sufficient regulatory guidance to substantiate the applicant's entitlement for SDAP as a unit career counselor for the period 15 January 2008 to 31 May 2013 and any payments made after that date should be recouped. 4. A DA Form 1574, dated 25 November 2014, shows a second informal Army Regulation 15-6 investigation was conducted for the same violation as in the first investigation with a different investigating officer. The investigating officer found: a. The applicant had no legal authority to receive any of the $22,650.00 worth of SDAP between January 2008 and May 2014. b. He inputted himself for this pay, backdated the effective date to coincide with his appointment as the battalion career counselor, and personally routed the orders for processing. c. He did not seek the advice of any military financial experts, military lawyers, or other legal advisors to determine if his interpretation of the regulation was correct prior to inputting himself for SDAP. d. He willfully committed fraud from 4 December 2013 to 7 May 2014 when he continued to receive SDAP, despite no longer being in a position where he understood (by his own admission) he was authorized to receive it. He was, at a minimum, grossly negligent from 1 January 2008 to 30 November 2013 by not seeking any kind of legal or financial expertise prior to submitting himself for SDAP. Given the totality of the circumstances, including his track record of fraudulent behavior, the investigating officer can reasonably determine the applicant obtained the entire $22,650.00 through willful fraud. 5. The investigating officer recommended: * recoupment of 100 percent of the fraudulently-obtained SDAP * immediate reduction in rank to staff sergeant (SSG) * pay deductions in the amount of 1/2 month's base pay for 2 consecutive months * discharge from the GAARNG and permanent disbarment from future reenlistment 6. A GANG Form 0059, dated 8 February 2015, shows NJP was imposed against him for preparing and presenting a false or fraudulent statement for approval with the intent of obtaining payment. He received $22,650.00 in SDAP in accordance with his duties as a unit career counselor from January 2008 to May 2014. This SDAP was not authorized to him in accordance with Army Regulation 614-200 (Enlisted Assignments and Utilization Management) and National Guard Regulation 601-1 (ARNG Strength Maintenance Program). His punishment included reduction to SSG/E-6. 7. He provided an appeal of the Army Regulation 15-6 investigation conducted 4-25 November 2014, dated 20 February 2015, which states the basis as substantive inaccuracy. It also states: b. The investigating officer presented the same documentation from the first Army Regulation 15-6 investigation. c. The DA Form 2823 (Sworn Statement), dated 23 June 2014, does mention National Guard Pamphlet 601-1 (ARNG Strength Maintenance Program) and Army Regulation 614-200. d. The investigating officer stated the applicant did not consult with a military finance expert or with legal counsel prior to inputting himself for incentive pay. The first investigation shows he consulted with a military finance expert. As for putting orders into pay, orders were signed by a lieutenant colonel and submitted appropriately through the chain for in-processing. The U.S. Property and Fiscal Officer is the only one who can input personnel for pay. e. Both investigating officers mentioned his situation in 1989 and he was discharged from the military in January 1990. If an alcoholic or drug user can recover and get their lives together, then no one can say he did not learn his lesson after a 10-year break in service. He did need a waiver to come back into the military in 2000 and since then he has had a pretty good and successful career. The investigating officer does not know him at all. f. The investigation officer stated he willfully committed fraud from 4 December 2013 to 7 May 2014 when he continued to receive SDAP. He has been assigned to Headquarters and Headquarters Company, 348th Brigade Support Battalion from June 2013 to present. He was the unit readiness NCO. In February 2014, an All Army Activities message was posted terminating SDAP for Regular Army and Reserve Component retention NCOs, but he did not find out until the first investigation in June 2014. g. The findings and recommendations from both Army Regulation 15-6 informal investigations are tainted and target him to hurt his career, reputation, livelihood, and family. The first investigating officer saw how cooperative he was during the investigation and was willing to clear his name. The second investigating officer never saw him, he was never read his rights, and he never interviewed him. h. The first investigation recommendation authorized him to receive the incentive pay during the period 15 January 2008 to 31 May 2013. The second investigation recommended recoupment of $22,650.00. If the investigating officer had done a thorough investigation and interviewed him, he would have learned this matter had been resolved by the Defense Finance and Accounting Service (DFAS) in July 2014. i. The second Army Regulation 15-6 investigation mimicked the original investigation. The findings of both investigations contradict each other and create reasonable doubt. The second investigating officer did not conduct an independent investigation and seek additional evidence in an ethical capacity and only re-reviewed said investigation. 8. The applicant was reduced from SFC to SSG effective 3 March 2015 due to misconduct. 9. He provided an amended Army Regulation 15-6 investigation appeal, dated 7 March 2015, which states: a. This matter was resolved in June 2014 and payment was credited to DFAS. This is a form of punishment. b. Pursuant to Army Regulation 27-10 (Military Justice), paragraph 3-10, double punishment is prohibited. When NJP has been imposed for an offense, punishment may not again be imposed for the same offense under Article 15. Once NJP has been imposed, it may not be increased, upon appeal or otherwise. When a commander determines that NJP is appropriate for a particular service member, all known offenses determined to be appropriate for disposition by NJP and ready to be considered at that time, including all offenses arising from a single incident or course of conduct, will ordinarily be considered together and not made the basis for multiple punishments. This provision does not restrict the commander's right to prefer court-martial charges for a non-minor offense previously punished under the provisions of Article 15. c. Both investigations covered the period 19 September 2008 through 7 May 2014. NJP may not be imposed for offenses committed more than 2 years before the date of imposition. Any allegations concerning conduct before 25 June 2012 may not be used as a grounds for Army Regulation 15-6 action. 10. He provided a letter from the GAARNG to a Member of Congress, dated 24 March 2015, which states: a. The investigation into the applicant's actions were reviewed at all levels of the chain of command and by the Office of the Judge Advocate of the National Guard of Georgia. He was found to have violated Army regulation, National Guard regulation, and the Official Code of Georgia and was appropriately punished for those violations by his chain of command. Any insinuation or allegation that these proceedings were improper are taken very seriously by the chain of command and have been thoroughly reviewed. b. In accordance with Army Regulation 15-6, an appointing authority has the authority to appoint an investigative officer when required "…to ascertain and consider the evidence on all sides of each issue, thoroughly and impartially, and to make findings and recommendations that are warranted by the facts and that comply with the instructions of the appointing authority," and an appointing authority if required to review the findings and recommendations but is "…neither bound nor limited by the findings or recommendations of an investigation or board…and may take action less favorable than that recommended…" The applicant alleges that a second investigation was conducted "with the same evidence, just the memorandum change to tarnish & hurt the Soldier and his career…" There was no second investigation, but a second investigating officer was appointed. c. Under advisement from the Office of the Judge Advocate General (OTJAG), the appointing authority disapproved the initial investigative officer's findings and recommendations. In their review, OTJAG found that, although the initial investigative proceedings complied with the minimum legal requirements for an Army Regulation 15-6 investigation, there was insufficient evidence to support the (initial) investigating officer's findings and recommendations. At this point the appointing authority chose to continue the investigation, albeit under a new investigating officer, which is authorized under Army Regulation 15-6. d. The applicant alleges that he was "cleared of everything"; however, the initial investigator, who had no authority to determine guilt or innocence or to punish a Soldier, only made findings and presented recommendations to the appointing authority that he felt were correct and supported by the evidence. These findings and recommendations of the initial investigating officer were found insufficient to be supported by the evidence. Contrary to the applicant's insinuation in his correspondence, there is neither a requirement to inform a Soldier of an ongoing investigation within a command, to inform a Soldier that he or she is being investigated, or for an investigative officer to "confront," interview, or re-interview a Soldier involved in an ongoing investigation. e. The second investigating officer reviewed the evidence gathered by the original investigating officer (there is no requirement for an investigating officer to gather additional evidence if the officer feels the available evidence is adequate to make findings and recommendations) and made his own findings and recommendations within the scope of Army Regulation 15-6. OTJAG conducted a second legal review and found the investigation both complied with the regulatory requirements and the findings and recommendations were supported by the evidence. The appointing authority concurred with those findings and referred the matter to the brigade and battalion commanders for action. f. The brigade commander provided the applicant a hearing where he was afforded the opportunity to testify and present evidence in his own behalf and, when found guilty and advised of the punishment, was afforded the opportunity to appeal the decision through the chain of command to the Assistant Adjutant General. After considering the appeal, the Assistant Adjutant General denied the appeal and the legal action (reduction in grade from SFC to SSG) was finalized. 11. In the processing of his case, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, National Guard Bureau (NGB). NGB recommends disapproval of the applicant's request. The advisory opinion states: a. He was promoted to SFC effective 15 April 2008. b. The first informal investigation of the applicant for being accused of falsely receiving SDAP as an unit or battalion career counselor was completed on 25 June 2014. The investigating officer recommended only recoupment after 31 May 2013 through 1 February 2014 in accordance with National Guard Regulation 601-1, paragraph 9-18c, that reads, "Soldiers who are overpaid or erroneously paid SDAP when incorrectly assigned will be issued amendatory orders and have the overpayment recouped" and recommended that GAARNG publish a policy letter outlining verification for Soldiers eligible to receive SDAP. c. A second informal investigation of the applicant for the same infraction as stated in the first investigation was completed on 25 November 2014 with a different investigating officer appointed. The findings and recommendations indicated the applicant clearly fraudulently obtained SDAP and recommended entire recoupment of $22,650.00, reduction in pay grade to E-6, receipt of pay deductions in the amount of 1/2 month's base pay for 2 consecutive months, and discharge and permanent disbarment from future reenlistment. d. On 5 March 2015, he was reduced in rank to SSG. e. The applicant presents the basis for correction of his rank reduction via NJP as being a matter of "double jeopardy" due to the fact there were two Army Regulation 15-6 informal investigations regarding potential misconduct. He does not imply there were two separate NJP actions, hearings, or appeals. There is only one GANG Form 0059. This is a State-imposed NJP proceeding which is equivalent to the Article 15 action under the Uniform Code of Military Justice (UCMJ). f. Commonly accepted definitions of the legal term "double jeopardy" as found in the Fifth Amendment to the U.S. Constitution can be summarized as being tried twice for the same offense. In the instant case, he was investigated twice, but only faced NJP on one occasion on 8 February 2015. Additionally, to the extent he is arguing that his rank reduction was "double jeopardy" in light of the prior recoupment action for the unauthorized SDAP, such an argument misunderstands the purely remedial nature of recoupment. Recoupment of any overpayment or receipt of unauthorized pay is administrative and can and does occur regardless of whether misconduct was involved or was punished. Recoupment of unauthorized pay is not punitive like the forfeiture of regular pay under an Article 15 would be. g. An informal Army Regulation 15-6 investigation is conducted at the commander's discretion. An assigned investigating officer may detail multiple recommendations and findings, but they are not binding on the appointing authority. Specifically, Army Regulation 15-6, paragraph 2-6a, 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 individual, even information that was not considered at the investigation or board (see paragraphs 1-9c and d)." Accordingly, following the first investigation, the appointing authority had wide discretion on what actions to take, including whether to disregard the findings and recommendations completely for reinvestigation. h. While the applicant noted he had a right to know he was under investigation a second time, he cites no regulatory or other provision for such a right. Army Regulation 15-6 does not require that subjects of an informal investigation be informed of an investigation prior to submission of the investigation to the appointing authority, nor does it provide a right to an interview with an investigating officer. To the contrary, Army Regulation 15-6, paragraph 4-2, states, "An informal investigation or board may use whatever method it finds most efficient and effective for acquiring information." Further, paragraph 4-3 states, "Informal procedures are not intended to provide a hearing for persons who may have an interest in the subject of the investigation or board. No respondents will be designated and no one is entitled to the rights of a respondent. The investigating officer or board may still make any relevant findings or recommendations, including those adverse to an individual or individuals." Additionally, it is clear that the Soldier was provided the results of the investigation pursuant to the State Article 15 process and, through that process, given notice and opportunity to respond, as well as to submit matters in appeal. i. He states that senior NCOs must go before an administrative board apparently to indicate that reduction can only occur as a result of such a board. Georgia State law also provides for rank reduction through NJP. Additionally, Army Regulation 600-8-19 (Enlisted Promotions and Reductions) clearly contemplates that reduction can be the result of an Article 15 NJP, in addition to an administrative board (see paragraph 10-1). Further, Army Regulation 27-10 notes that "For RC [Reserve Component] Soldiers of grade E-6 and higher, reduction is authorized only if the grade from which the Soldier is reduced is within the promotion authority of the officer imposing the reduction." Per paragraph 3-19(6)(a) of Army Regulation 27-10, the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander; the imposing commander of any subordinate commander has promotion authority within the meaning of Article 15, UCMJ, if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade. Army Regulation 600-8-19 established promotion authority for SFC through sergeant major (SGM) within the ARNG as the State Adjutant General which can be delegated to commanders in the rank of colonel or higher. As a result, rank reductions for senior NCOs in the ARNG do not always have to occur through administrative board action. j. The NGB Administrative Law Attorney Office and the GAARNG concur with this recommendation. 12. The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. On 16 October 2015, he responded and stated: a. The first investigating officer did a thorough and detailed investigation compared to the second investigating officer's investigation. b. The NJP was presented to him on 6 February 2015. The unit noted on the form is incorrect and the statement of SDAP was not authorized in accordance with applicable regulations. c. The unit attrition NCO is an additional duty position, appointed in orders by the unit commander. Since the unit attrition NCO receives SDAP for performing these duties, he or she must be qualified through training. d. NJP action for an SFC, MSG, or SGM requires action by a colonel or above. A sergeant and above must be subject to the reduction procedures by a reduction board. e. He points out a Member of Congress was informed that his investigation was ongoing and he did not have to know a second investigating officer was appointed. It was also noted the findings and recommendations from the first investigation were insufficient in evidence and this is why another officer was appointed. He questions if the evidence presented in the first investigation was insufficient, why did the second investigating officer use the same evidence and create his own assumption without conducting an interview with him. f. His appeal was never heard by the Assistant Adjutant General. Two Soldiers were not permitted to speak on his behalf. Wrongful reduction was committed and money is being taken from his SSG pay. Through all the false statements and perjury committed, this has caused a major hardship for him and his family. He is being forced to retire and he was evicted from his residence. DISCUSSION AND CONCLUSIONS: 1. The evidence shows: a. The initial Army Regulation 15-6 investigating officer recommended only recoupment of SDAP for the period 31 May 2013 to 1 February 2014. b. The second Army Regulation 15-6 investigating officer found the applicant fraudulently obtained SDAP and recommended recoupment of the entire $22,650.00, reduction in pay grade to E-6, pay deductions in the amount of 1/2 month's base pay for 2 consecutive months, and discharge and permanent disbarment from future reenlistment. c. NJP was imposed against the applicant for preparing and presenting a false or fraudulent statement for approval with the intent of obtaining payment. He received $22,650.00 in SDAP in accordance with his duties as a unit career counselor from January 2008 to May 2014. This SDAP was not authorized to him in accordance with Army Regulation 614-200 and National Guard Regulation 601-1. d. He was reduced in rank from SSG to SFC effective 3 March 2015 due to misconduct. 2. He requested reinstatement of his rank to SFC due to "double jeopardy," which he asserts resulted from NJP that was based unfairly on a second informal Army Regulation 15-6 investigation. 3. The legal term "double jeopardy" can be summarized as being tried twice for the same offense. NJP was imposed against him on one occasion in February 2015. 4. In accordance with the governing regulations, the appointing authority has wide discretion on what actions to take, including whether to disregard the findings and recommendations completely for reinvestigation. Also, the appointing authority is neither bound nor limited by the findings or recommendations of an investigation or board. 5. Although the applicant contends he had a right to know he was under investigation, the governing regulation does not require that subjects of an informal investigation be informed of an investigation prior to submission of the investigation to the appointing authority, nor does it provide a right to an interview with an investigating officer. 6. He implies that senior NCOs must go before an administrative board for rank reductions. However, Georgia State law provides for rank reduction through NJP. Also, the governing regulation clearly contemplates that reduction can be the result of an Article 15 NJP in addition to an administrative board. Thus, rank reductions for senior NCOs do not always have to occur through administrative board action. 7. In view of the foregoing evidence, there is no basis for granting the applicant's request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ____x___ DENY APPLICATION 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. ABCMR Record of Proceedings (cont) AR20150007227 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007227 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1