IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20160002635 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ___x ____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20160002635 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20150003964, dated 11 June 2015. _____________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: 28 July 2016 DOCKET NUMBER: AR20160002635 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 reconsideration of his previous request for: * the repeal and expunction of two substantiated allegations in the Department of the Army Inspector General (DAIG) Report of Investigation (ROI) Case DIH 11-XXXX * reinstatement to the Fiscal Year (FY) 2012 Colonel (COL) Army Promotion List (APL) Reserve Component (RC) (Non-Active Guard Reserve (AGR)) Promotion Selection Board (PSB) list * promotion to COL with an effective date of 15 January 2013 (the date of the board) * reinstatement to the Calendar Year (CY) 2014 COL Command Assignment Selection Board (CASB) selection list or current list with equivalent order of merit * a personal appearance before the Board 2. The applicant states, in effect, he is providing a new argument and new evidence that were not previously considered. 3. The applicant provides: * 12 pages of copies of email, dated between 4 December 2009 and 20 October 2010 * five memoranda for record (MFR), dated between 10 August 2013 and 9 November 2013 * a statement of support, dated 17 September 2013 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150003964 on 11 June 2015. 2. As a new argument, the applicant states: a. There is new evidence that exonerates him. The initial protected communication documented in the DAIG DIH 11-XXXX concerned a singular innocuous statement that was purposefully taken out of context by the complainant who was not present as a first-hand witness. b. Evidence unavailable to the original investigation and his subsequent appeals, such as the statement by the first-hand witness, Captain (CPT) AJD, demonstrates the true reason for the complaint as "differences" concerning the need for training preparation of A Company (CO) in a field environment; this was echoed by the equal opportunity (EO) investigating officer (IO), Major (MAJ) DEM. c. Contemporaneous email that was unavailable shows the complainant's senior rater changed the reason for submission code on her first officer evaluation report (OER) from senior rater option to annual, inadvertently moving the through date past the contentious first A CO field problem without including it. Since the conclusion of the rating period was prior to the protected communication, the IO, Lieutenant Colonel (LTC) JHH, used the OER as a benchmark for how he (the applicant) would assess the complainant's performance absent knowledge of protected communication. 3. As new evidence, the applicant provides: a. An MFR, dated 10 August 2013, wherein COL LMC stated the purpose of the MFR was to provide the DAIG information that may be pertinent and which was not likely known during the whistleblower reprisal investigation of the applicant (emphasis added): (1) He served as the Group Commander and intermediate rater of the applicant during the period in question and as the senior rater for the claimant, MAJ Z. He initiated an EO investigation on 27 April 2011 into the applicant's conduct in response to a complaint initiated by MAJ Z. The investigation, as well as its findings, along with the results of two previous investigations (Commanding General's (CG's) Inquiry and Judge Advocate General (JAG) Inquiry of different scopes but similar focus to the whistleblower reprisal investigation, are known to the DAIG. All three investigations were closed with no findings that the applicant acted improperly or illegally. Army Regulation (AR) 600-20 (Army Command Policy), paragraph D-12 (i.e. Appendix C-12) permits the possibility of punitive administrative action to deter spurious EO complaints as follows. "Actions against Soldiers submitting false complaints. Soldiers who knowingly submit a false EO complaint (a complaint containing information or allegations that the complainant knew to be false) may be punished under the Uniform Code of Military Justice (UCMJ)." (2) This is a clear and notable distinction with Department of Defense (DOD) Directive 7050.06 (Military Whistleblower Protection) which explicitly precludes such action. Upon conclusion of the EO investigation, he solicited from the applicant as to whether he believed MAJ Z submitted a spurious complaint and whether he felt further inquiry into such was necessary. In response, the applicant stated, "Although possibly warranted under AR 600-20, I do not believe it would be in the best interest of the unit or the Service to conduct further inquiry into this matter." As a result of the applicant's recommendation, he decided no further actions would be taken into this matter. (3) Based on his personal knowledge of the applicant's character and performance, he recommends DAIG DIH 11-XXXX be reevaluated as there appears to be a clear disconnect between the previously unsubstantiated findings to the now substantiated finding. He did not believe the applicant would avail himself of unsanctioned means of reprisal and asks the case be reviewed to ensure the findings were correct. b. A statement of support, dated 17 September 2013, wherein LTC DEM stated, in part, he conducted the sexual harassment/EO investigation into the applicant after the MI Readiness Command (MIRC), U. S. Army Reserve (USAR) received a complaint from one of the senior officers within the applicant's command regarding a statement he made in front of Soldiers which others considered sexual in nature. The complainant was not present when the sexual in nature comment was made and alleged reprisal for bringing the comment to the applicant's attention. (1) During the investigation, he struggled with the level of intent required for a reprisal to be committed by a senior against a subordinate for making a protected communication, especially in situations in which the senior had previously warned the subordinate for shortcomings in performance. The complainant stated she did not receive any formal performance counseling during the period to support the less than positive OER although the evidence showed the applicant did counsel her both orally and via email for not meeting command expectations. One female officer essentially related she felt the complainant might have exploited the situation of the applicant making the sexual comment as a possible opportunity to "get back" at the applicant for professional disagreements they had. (2) He concluded that because the complainant received what he thought a reasonable person would perceive to be a less than positive OER after receiving positive OERs that a de facto reprisal occurred, but this is to mean that there was no evidence of intent on the applicant's part for this to occur. The applicant should not be held to have intended what appeared to be a reprisal OER in light of the established friction between them prior to the complainant making the protected communication. (3) As to the sexual comment, the applicant explained he did not perceive it to be such while others did. He can see how the applicant did not react expediently to apologize for the gaffe and hoped continued sensitivity training in the Army will prevent any sort of further mistakes by our leaders to avoid euphemisms when talking with others. c. An MFR, dated 18 October 2013, wherein CPT AJD stated, in part, he was the first lieutenant (1LT) assigned as the executive officer (XO) to A CO, 323rd Military Intelligence (MI) Battalion (BN). (1) During the 17 to 18 July 2010 field training exercise (FTX) conducted on Aberdeen Proving Ground (APG), MD, he was the acting company commander (CO) because the CO, MAJ Z could not attend the FTX due to a medical condition. The applicant, the 323rd MI BN commander at the time, visited the FTX the first day. During his visit, the applicant engaged A CO Soldiers in a discussion about training while in a classroom. The applicant made an analogy about training using what at the time he (CPT AJD) interpreted as a sexual metaphor. His initial MFR was written to document this incident at the request of MAJ Z and as a response to the use of what sounded like a sexual metaphor by the applicant. (2) He wrote the initial MFR on 29 August 2010 and has had reservations about writing the MFR. His reservations stem from not being certain as to whether or not the use of the metaphor during the FTX was conflated with difficulties MAJ Z and the applicant had in their professional relationship. In the MFR, he stated he did not hear the applicant provide an explanation for his use of the metaphor. It is true that he did not hear an explanation for the use of the metaphor; however, he was not present during the entire length of the applicant's discussion. It is completely plausible that the applicant did provide an explanation while he was not in the room when the discussion took place. (3) He believed the incident at the FTX and the difficulties the applicant and MAJ Z had in their relationship are separate and unrelated issues because since he first met MAJ Z in September 2009 she had a turbulent relationship with the applicant. He witnessed MAJ Z complaining about the applicant and overheard the applicant and MAJ Z disagreeing about training issues. He believes and stands by his statements (initial MFR) which he believed to be an EO issue. d. An MFR, dated 28 October 2013, wherein Chief Warrant Officer Two (CW2) stated, in part, he was an all-source intelligence officer in A CO during the 16 to 17 October 2010 field problem conducted in Reisterstown, MD. (1) He was the principal planner with MAJ O providing direction and MAJ Z gave no guidance that he was aware of. There were no other A CO planners although other 323rd MI BN companies were conducting concurrent field training at other locations. The field problem was a success in the eyes of the Soldiers, BN commander, and the Brigade (BDE) commander. (2) It took significant effort to successfully execute this event under the constraints given. Had the applicant not stepped in to bring him and MAJ O into the process, it is unlikely the event would have happened at all. He is aware that the applicant had been accused of improperly reprising against MAJ Z. Based on what he knows of his character and professional ethic, it appears to him that MAJ Z was failing to execute his intent. Thus, he was right to step in and no reprisal could have occurred. e. An MFR, dated 6 November 2013, wherein Command Sergeant Major (CSM) ERG stated the purpose of the MFR was to provide the DAIG information that may be pertinent and which was not likely known during the whistleblower reprisal investigation of the applicant. (1) The applicant inherited a situation in which the former commander was relieved for cause as the BN was failing to meet deployment commitments and the unit had not conducted collective training in years. (2) The applicant and he were in complete agreement as to the objective deficiencies on the part of MAJ Z in her performance as the CO, A CO. The observations were first-hand and the evidence suggested that the deficiencies were derived from a lack of will on the part of MAJ Z to faithfully execute the commander's intent and not from incomplete or misperceived guidance, unavailability of requisite resources, complexity of the tasks, or other reasons as became progressively clear to the senior leadership team over time. f. An MFR, dated 9 November 2013, wherein Sergeant First Class (SFC) JEG stated the purpose of the MFR was to provide the DAIG information that may be pertinent and which was not likely known during the whistleblower reprisal investigation of the applicant. (1) He served as the full-time Active Guard/Reserve (AGR) operations noncommissioned officer in charge (NCOIC) from August 2008 to July 2010 for A CO, 323rd MI Bn. Under the applicant, the BN underwent a welcome period of rebuilding and revitalization. Although healthy, this was also stressful as the BN had no full time staff member to fill the vacant S-3 position putting the burden of orchestrating, integrating, and synchronizing planning on the companies. MAJ Z, then CPT S, took early issue with the operations tempo (OPTEMPO) and the requirement to employ her company in a field environment. (2) Although, he never witnessed an unprofessional public exchange, CPT S would often rally her troops in support of issues she wished to challenge. CPT S exhibited a chronic lack of responsiveness on matters which appeared to be outside of her self-interest. It is not consistent with the facts that he observed during the year he served under the applicant that he reprised against MAJ Z and he strongly recommended DAIG reevaluate DIH 11-XXXX as unsubstantiated. 4. The applicant is currently serving in the USAR in the rank of LTC. 5. DAIG ROI Case DIH 11-XXXX shows a subordinate officer filed a complaint in February 2011 alleging whistleblower reprisal in that the applicant improperly rendered her an unfavorable OER and improperly relieved her of her duty position in reprisal for a protected communication. An investigation was conducted and the DAIG IO found the allegations were substantiated. The Deputy IG approved the ROI findings in July 2013. 6. On 21 August 2013, the CY14 COL RC Troop Program Unit CASB selected the applicant for command. However, as a result of DAIG Case DIH 11-XXXX, his selection was referred to a General Officer Review Board (GORB). It appears the GORB did not approve his selection for command. 7. In December 2013, the applicant appealed the DAIG ROI substantiated findings for the two allegations of reprisal to the DODIG. In June 2014, the DODIG determined he did not provide any new or compelling information to warrant reopening the investigation or changing the conclusions. 8. In January 2014, the RC PRB recommended the applicant for promotion to COL. His records were referred to a Department of the Army (DA) PRB for reconsideration of his promotion status. 9. On 8 May 2014, following reconsideration of his promotion status by the DA PRB, the Secretary of the Army directed his removal from the FY12 COL RC (Non-AGR) APL PSB. 10. In the processing of this case an advisory opinion was received from the Chief, Officer Promotions, U.S. Army Human Resources Command (HRC) on 27 April 2016. The advisory official recommended disapproval of the applicant's request and opined: a. The applicant was removed from the promotion list at the conclusion of a PRB on 8 May 2014 by the Secretary of the Army. Their office does not have the authority to overturn or overrule the Secretary of the Army's decision. They recommend that if the applicant is selected and approved for promotion by a subsequent selection board that he request through the Army Review Board Agency (ARBA) that the Secretary of the Army or Principle Deputy Secretary of Defense (as applicable) grant approval for an earlier promotion eligibility date under the FY12 criteria. b. In addition, it is recommended that the applicant present all evidence that would support any favorable adjustments to any reports or concerns of his person, prior to requesting further relief from the DAIG, ABCMR, Army G-1, or the Secretary of the Army or Principle Deputy Secretary of Defense (as applicable). 11. In a response to the advisory opinion, dated 13 May 2016, the applicant stated: a. The two recommendations encapsulated within the advisory opinion are consistent with his request for reconsideration of his previous request. As implied in the advisory opinion, he has been subjected to three O-6 PRB's for the same matter. The first PRB in January 2014 recommended his retention on the promotion list. The second PRB in October 2015 was found legally insufficient during general counsel review necessitating a third PRB in April 2016. b. Due to the short notice of the third PRB, the following information was unavailable to the board: (1) His extended OER that closed a 14-month gap in his record. Considering that his senior rater now performs the duties of Principal Deputy Under Secretary of Defense, her comments are particularly humbling even though other evaluations in his file surpass them. (2) He has been selected for BDE-level command twice. His first selection in 2014 was explicitly endorsed by the commanding general of the MIRC in one of six general officer (GO) endorsements already submitted to ARBA. The most recent in 2016 is attested to in the aforementioned OER. c. Inclusive of previous submissions to ABCMR, plus this memorandum, all relevant material has now been provided to ARBA. The actions he took, although personally unwelcome were appropriate and necessary to address unsatisfactory performance. The totality of evidence exonerates him. 12. With his response, the applicant provides a DA Form 67-10-2 (Field Grade Plate (O4 - O5; CW Three (CW3) - CW Five (CW5) OER), he received in April 2016 while serving as Director, Special Programs, U.S. Army Element, Office of the Secretary of Defense. a. His rater was Executive Service (ES)-02, Mr. RAR, Director, Total Force Planning, and his senior rater was ES-03, Ms. SAB, Principal Deputy, Assistant Secretary of Defense (ASD) (Manpower and Reserve Affairs) (M&RA). The OER was an extended annual OER and covered the rated period 1 December 2014 through 27 March 2012. The OER shows: b. His rater, in part, stated his performance was brilliant in every respect. The applicant provided actionable and impactful analysis supporting Presidentially-appointed officials at ASD level. His effective collaboration with the Services promoted a transparency which will translate into both increased operational readiness and additional funds for force structure. Best Army Officer rated in his 50-years in government service. c. His senior rater, in part, stated she rated 2 Army Officers in his rank and he was among the very best of all officers whom she had senior rated. The applicant filled a "by-name" request for leadership of important projects that directly and positively impact the operational readiness and fiscal welfare of the Total Force. Already successfully serving in an O-6 capacity and recently selected for COL command, the applicant continued to excel. Continue to select for the most challenging BDE, dual-status and Joint commands. Promote to brigadier general (BG). 13. His record is void of a memorandum showing he was selected for COL-command in 2016. REFERENCES: 1. Army Regulation 20-1 (IG Activities and Procedures) prescribes policy and procedures concerning the mission and duties of the IG. The IG records are protected documents that contain sensitive and confidential information and advice. DAIG records are any written or recorded IG work product created during the course of an IG assistance inquiry, inspection, investigative inquiry, or investigation. An IG record includes, but is not limited to, correspondence or documents received from a witness or a person requesting assistance, IG reports, IG Network data, or other computer automatic data processing files or data, to include IG notes and working papers. a. An IG investigative inquiry is defined as an informal fact-finding examination into allegations, issues, or adverse conditions that are not significant in nature, as deemed by the command IG or directing authority, and when the potential for serious consequences (such as potential harm to a Soldier or negative impact on the Army's image) are not foreseen. The IG investigative inquiries involve the collection and examination of evidence that consists of testimony or written statements, documents and in some cases physical evidence. Command IG's direct investigative inquiries and provide recommendations to the directing authority or subordinate commanders as appropriate. The directing authority reserves the right to direct an investigative inquiry if he or she feels an investigation is not appropriate. IG's resolve most allegations using this methodology and report their conclusions using an ROI. b. "Not substantiated" is defined as a conclusion drawn by an IG at the close of an investigative inquiry or investigation when the preponderance of credible evidence suggests the subject or suspect did not do what was alleged in the allegation. c. "Substantiated" is defined as a conclusion drawn by an IG at the close of an investigative inquiry or investigation when the preponderance of credible information suggests the subject or suspect actually did what was alleged. 2. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The evidence of record shows an investigation was conducted based on a complaint from a subordinate officer alleging whistleblower reprisal in that the applicant rendered her an unfavorable OER and he improperly relieved her of her duty position in reprisal for a protected communication. The DAIG IO found the allegations against the applicant were substantiated and the findings were approved in July 2013. 3. Notwithstanding the applicant's contention that he provides evidence that shows the DAIG IO should have not substantiated the allegations against him, the evidence he provided does not conclusively support this contention. The MFRs stated based on their knowledge of the applicant and the complainant, they believed he must not have committed the allegations that had been substantiated by the DAIG. 4. In addition, the MIRC sexual harassment/EO IO confirmed the applicant made a sexual remark, as did CPT AJD, and that he determined the applicant had reprised against the complainant in rendering her a less than positive (or unfavorable) OER after a protected communication. However, in his September 2013 statement he stated that a "de facto" reprisal occurred and he took this to mean there was no evidence of intent on the applicant's part. Regardless of the IO's incorrect interpretation, the applicant appealed the DAIG report to the DODIG in December 2013 and it appears he provided them with the statements of support that he provided with this request. The DODIG determined he did not provide any new or compelling information to warrant reopening the investigation or changing the conclusions. 5. With respect to his request for reinstatement to the FY12 COL PSB list and promotion to COL, the evidence of records shows the Secretary of the Army acted within his discretionary authority when he removed him from the COL PSB list on 8 May 2014. There is no evidence of error or injustice. 6. With respect to his request for reinstatement on the CY14 CASB, he provides an OER which stated he had been recently selected for a COL-command. He has not provided any evidence or argument that warrants reinstatement to the CY14 CASB. But even if he has been selected for a command assignment, there is no mechanism in place, such as an special selection board (SSB), to reinstate him. SSBs are used for promotions, not for command boards. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002635 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002635 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2