ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 21 October 2019 DOCKET NUMBER: AR20170017373 APPLICANT REQUESTS, THROUGH COUNSEL: * amendment of Department of the Army Inspector General (DAIG), Deputy Inspector General (DIG) 12-8XXXX report to remove all references to "reportable information" associated with the applicant and based on information as reported by the "Kern/Fay" Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) Investigation of the Abu Ghraib detention facility and the 205th Military Intelligence Brigade * consideration of the applicant for promotion to colonel (COL) by a special selection board (SSB) under the Fiscal Year 2014 (FY14) selection criteria * reinstatement of the applicant on active duty * time in grade credit for pay and retirement since the applicant's release from active duty on 1 June 2016 * adjustment of the applicant's mandatory removal date to 1 June 2018 upon promotion to COL APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Memorandum, Counsel, dated 10 November 2017, subject: Supplemental Statement (Applicant) * DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 30 July 1986, 29 March 1991, 1 February 1993, 5 October 2002, 29 February 2004, 10 September 2004, and 31 May 2016 * DA Form 71 (Oath of Office), dated 6 May 1988 * DA Form 1059 (Service School Academic Evaluation Report), dated 30 October 1998 * Memorandum, Headquarters, U.S. Army Reserve Command, Fort McPherson, GA, dated 8 April 2005, subject: Written Reprimand * Memorandum, Company A, 325th Military Intelligence Battalion, Ayer, MA, dated 25 April 2005, subject: Memorandum of Reprimand (Applicant) * Memorandum, Headquarters, U.S. Army Reserve (USAR) Command, Fort McPherson, GA, dated 29 April 2005, subject: General Officer Memorandum of Reprimand (GOMOR) Issued to (Applicant) * FY14, COL, Army Promotions List, Army Reserve Active Guard Reserve (AGR), Non-AGR, and Army National Guard of the United States (ARNGUS), Promotion Selection Board Results, posted 15 April 2014 * Memorandum, Lieutenant General (LTG) U.S. Army (Retired) H____, dated 26 March 2015, subject: Request for Removal of GOMOR from Official Military Personnel Files of (Applicant) * Memorandum, Secretary of the Army, Washington, DC, dated 21 October 2015, subject: Promotion Review Board (PRB) RP1412-02, FY14, COL, Army Reserve AGR, Army Promotions List Promotion Selection Board * Memorandum, U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 23 October 2015, subject: PRB Results (RP1412-02) * Record of Proceedings, Department of the Army Suitability Evaluation Board (DASEB) (Reconsideration), dated 16 February 2016 * Memorandum, Army Review Boards Agency (ARBA), dated 1 March 2016, subject: Resolution of Unfavorable Information for (Applicant), Case Number AR20160002271 * Army HRC Form 4109 (Request for Extension of Mandatory Removal Date (MRD)) * Memorandum, Headquarters, U.S. Army Reserve Command, Fort Bragg, NC, dated 13 April 2016, subject: MRD Extension Request * Memorandum, HRC, Fort Knox, KY, dated 13 April 2016, subject: Special Selection Board (SSB) Notification – Reconsideration * Orders C-04-693341, HRC, Fort Knox, dated 18 April 2016 * Orders C-04-605023, HRC, Fort Knox, dated 18 April 2016 * Orders C-04-605024, HRC, Fort Knox, dated 18 April 2016 * Memorandum, Headquarters, U.S. Army Reserve Command, Fort Bragg, NC, dated 19 April 2016, subject: MRD Extension Request * Memorandum, Office of the Inspector General, Washington, DC, dated 26 April 2016, subject: U.S. Army Inspector General Agency Investigation of Abu Ghraib Detention Facility and 205th Military Intelligence Brigade Information as Reported by "" Army Regulation 15-6 Investigation (DIG 12-8XXXX) (Update Number 2) * Memorandum, HRC, Fort Knox, dated 26 January 2017, subject: Rebuttal for Delay of Promotion and Referral to PRB (Applicant) * email, C____ B____, PRB Case Manager, Officer Promotions Special Actions, HRC, dated 26 October 2017, subject: PRB Case Close Out (Applicant) * email, Applicant, dated 7 November 2017, subject: PRB Case Close Out * email, K____ M____, Adverse Action Team Lead, Headquarters, Department of the Army, Officer Promotions, Special Actions, HRC, dated 7 November 2017, subject: PRB Case Close Out FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Counsel states: * applicant was selected for promotion to COL during the FY14 COL AGR promotion board * a PRB was initiated based on the "adverse information" in the DIG 12-8XXXX report and a GOMOR * he was removed from the promotion list on 21 October 2015 * after he was removed from the promotion list, the GOMOR was removed from his records and the DIG 12-8XXXX report was amended * the applicant was notified of an SSB for reconsideration for promotion to COL following removal of the GOMOR * the applicant requested an MRD extension in April 2016 – his request was denied * the DIG 12-8XXXX report was amended on 28 April 2016, eliminating all references to "adverse information" and reclassified the "" investigation findings against the applicant as "reportable information" * the DAIG determined the information was "reportable information" because it is "information other than adverse information requested to be reported by the Senate Armed Services Committee or by any member of the Senate" under Department of Defense (DOD) Instruction (DODI) 1320.04, enclosure 4, paragraph 1(b)(1) * another PRB was initiated in April 2016 based on the "reportable information" in the DIG 12-8XXXX report * the applicant was notified on 26 October 2017 that the PRB case was closed * HRC reasoned the applicant was no longer eligible for an SSB or PRB since he reached his MRD on 1 June 2016 * HRC failed to acknowledge the applicant's MRD extension request * HRC failed to consider the applicant's MRD would change to 1 June 2018 once he was promoted to COL * HRC failed to explain why they notified the applicant in April 2016 of a PRB if they had no authority to proceed with the SSB after his 1 June 2016 MRD * an HRC representative clarified that they needed the ABCMR to order an SSB for the applicant since he has already been released from active duty * the DIG 12-8XXXX report must be amended to remove all references to "reportable information" associated with the applicant's name * adverse findings of an Army Regulation 15-6 investigation that are later unfounded by "clear and convincing evidence" do not meet the definition of "reportable information" * once information was unfounded by both the original imposing authority Lieutenant General (Retired) H____ and also by the Deputy Assistant Secretary of the Army (DASA) (Review Boards), it is no longer of any interest to anyone * there is no current credible information of the applicant having had any relevant or significant association with detainee abuse * he was vindicated of the original findings of the "" investigation * the DASA's decided the findings of the "" investigation are "untrue and unjust" as demonstrated by "clear and convincing evidence" * the findings of the "" investigation pertaining to the applicant are not and cannot be "reportable information" * the DIG 12-8XXXX report must be updated to remove all references to "reportable information" associated with his name * once the DIG 12-8XXXX report is amended, there is no basis to deny the applicant promotion to COL * if the DIG 12-8XXXX report is not amended, an SSB should still be ordered * the applicant's SSB and PRB were inappropriately terminated * the ABCMR has not authorized the SSB to proceed past the applicant's MRD * if selected and retroactively promoted, the applicant's MRD would extend to 1 June 2018 * the applicant will have over 18 years of active Federal service by that time and will be able to continue to a 20-year active duty retirement 3. At the time of the incident that generated "reportable information," the applicant was a mobilized Army Reserve officer serving as the Deputy Operations Officer of the Joint Interrogation and Debriefing Center (JIDC) at the Abu Ghraib detention facility in Iraq from on or about 10 September 2003 through on or about 15 November 2003. 4. An Army Regulation 15-6 investigation of the Abu Ghraib Detention Facility and the 205th Military Intelligence Brigade found that from 25 July 2003 to 6 February 2004, 27 personnel of the 205th Military Intelligence Brigade allegedly requested, encouraged, condoned, or solicited military police personnel to abuse detainees, or participated in detainee abuse, or violated established interrogation procedures and applicable laws and regulations as preparation for interrogation operations at Abu Ghraib. The investigation found the applicant, as the Deputy Operations Officer, JIDC, 325th MI Battalion, through a preponderance of evidence, failed to do the following: * to properly train Soldiers and civilians on the interrogation and counter-resistance policies * to understand the breadth of his responsibilities as the JIDC Deputy Operations Officer * to effectively assess, plan, and seek command guidance and assistance regarding JIDC operations * to intervene when the Interrogation and Control Element received pressure from higher headquarters * to plan and implement the necessary checks and balances to prevent and detect abuses * to properly review interrogation plans which clearly specified the improper use of nudity and isolation as punishment 5. The applicant was honorably released from active duty on 29 February 2004. His DD Form 214 shows his narrative reason for separation as completion of required active service. 6. On 8 April 2005, the Commanding General, Headquarters, USAR Command, issued the applicant a written reprimand for his failures as the Deputy Operations Officer at the JIDC for the 325th Military Intelligence Battalion. He did not live up to the standards expected as a leader of Soldiers. His failures to properly train Soldiers and implement the checks and balances necessary to prevent and detect abuses helped create an environment in which his Soldiers mistreated detainees on numerous occasions. After carefully considering the applicant's rebuttal, the commanding general directed placement of GOMOR in the performance folder of the applicant's Official Military Personnel File (OMPF). 7. The applicant was promoted to lieutenant colonel (LTC) in the USAR on 18 June 2009. 8. The applicant was selected for active duty in an AGR status with a reporting date of 25 July 2005. 9. On 10 March 2009, the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) to have the GOMOR removed from his OMPF. 10. On 13 July 2009, the DASEB determined there was insufficient evidence to support that the GOMOR is untrue or unjust, which is required to remove the GOMOR from his OMPF. The DASEB further determined there was sufficient evidence to show the intent of the GOMOR had been served and that it would be in the best interest of the Army to transfer it to the restricted folder of the applicant's OMPF. 11. On 29 July 2009, the applicant applied to the ABCMR to remove the GOMOR from his OMPF. 12. On 25 May 2010, the ABCMR denied the applicant's request to remove the GOMOR from his OMPF, stating the applicant provided no evidence to show the GOMOR was rendered in error. 13. On 6 July 2011, the applicant applied to the ABCMR for reconsideration to have the GOMOR removed from the restricted folder of his OMPF. 14. On 2 February 2012, the ABCMR again denied the applicant's request to remove the GOMOR from the restricted folder of his OMPF. 15. On 26 February 2014, the DAIG Records Screening and Oversight Office received a request for records screening for the FY14 COL Promotion List on (Applicant) from HRC. 16. On 15 April 2014, HRC posted the results of the FY14 COL, AGR, Non-AGR, and ARNGUS, Promotion Selection Board Results. The applicant was named on the promotion list. 17. On 20 June 2014, the DAIG updated the DIG 12-8XXXX report (Army Regulation 15-6 Investigation of Abu Ghraib Detention Facility and 205th Military Intelligence Brigade Adverse Information as reported by "" Army Regulation 15-6 Investigation). The investigating officer concluded the allegations pertaining to the applicant were substantiated and approved release of the adverse information as reported in the "" Army Regulation 15-6 investigation against the applicant to HRC. 18. On 8 April 2015, the applicant petitioned the DASEB for removal of the GOMOR from the restricted folder of his OMPF. 19. On 8 October 2015, the DASEB denied the applicant's request to remove the GOMOR from the restricted folder of his OMPF. The board determined the applicant did not show with clear and convincing evidence that the continued presence of the GOMOR in the restricted folder in his OMPF created an injustice. In conformance with the governing regulations, the presence of the GOMOR meets the objectives of its permanent filing; it permits the Army to consider all available relevant information regarding the applicant's conduct and performance; it maintains an unbroken, historical record of the applicant's service; and it serves the best interest of the Army. 20. On 21 October 2015, the Secretary of the Army directed removal of the applicant from the FY14, COL, AGR, Non-AGR, and ARNGUS, Promotion Selection List. 21. On 2 February 2016, the GOMOR-imposing authority, LTG H____, requested reconsideration of the DASEB decision rendered on 21 October 2015 to remove the GOMOR from the applicant's OMPF. 22. On 16 February 2016, the DASEB denied the imposing authority's request for reconsideration, stating the evidence presented did not clearly and convincingly establish that the document under consideration was untrue or unjust and as a result the presumption of regularity applied. 23. On 1 March 2016, after careful consideration of the facts and evidence, the DASA (Review Boards) rejected the DASEB's decision to deny removal of the GOMOR from the restricted folder of the applicant's OMPF. It was judged that the imposing authority provided clear and convincing evidence that the basis for imposition of the GOMOR was untrue and unjust. 24. On 13 April 2016, the applicant was notified by HRC of his SSB reconsideration. HRC advised him that an approved MRD may be temporarily suspended/adjusted during the SSB process. The applicant submitted an MRD extension request on 13 April 2016. 25. On 28 April 2016, the DAIG updated the DIG 12-8XXXX report. The DAIG noted the removal of the GOMOR from the applicant's OMPF and, although the DAIG records are not retained in the applicant's OMPF, the substantiated findings in the "" report were the basis of the GOMOR. The DAIG stated that given the substantiated findings were the basis of DAIG recording the findings as adverse information, the DAIG should modify how these recordings are documented – reportable vice adverse. Office of the Secretary of Defense guidance requires the Services to report matters related to disclosure about detainee abuse in future nominations. Given that the findings against the applicant met the definition of reportable information, the DAIG recommended the record of findings as reported in the "" report against the applicant as reportable information. 26. There is no evidence in the applicant's OMPF of his MRD extension request being denied. 27. On 31 May 2016, he was honorably released from active duty. His DD Form 214 for this period shows the narrative reason for separation as maximum service or time in grade. He completed 15 years, 6 months, and 27 days of total active service and 17 years, 1 month, and 5 days of total inactive service. He completed 28 years of commissioned service (by law, an LTC may serve a maximum of 28 years). 28. On 26 January 2017, he submitted a rebuttal for delay of promotion and referral to a PRB to the President, PRB, HRC. 29. On 26 October 2017, the PRB Case Manager, Officer Promotions Special Actions, HRC, emailed the applicant wherein he stated: * after further review of his case, the Army G-1 directed HRC to close his PRB * it was determined that he was no longer eligible for a PRB based on the early termination of his SSB for FY14 USAR COL Promotion Selection List * the FY14 SSB was conducted; however, it was not completed before he reached his MRD 30. On 7 November 2017, the HRC Adverse Action Team Lead advised the applicant via email that an appeal for an SSB should be submitted to ARBA. ARBA directed removal of the GOMOR from his OMPF and directed his promotion reconsideration, but did not state the SSB should continue past his retirement or extend his MRD until completion of the SSB. ARBA is the only office that can direct the Army G-1 to continue an SSB of an officer who is no longer on the Active Duty List or Reserve Active Status List. The HRC Adverse Action Team Lead advised him the GOMOR was not the reason for the PRB; an Inspector General report was identified by the DAIG during the post-board SSB screen. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found partial relief is warranted. 2. The Board agreed that there is insufficient evidence to support a recommendation for further amendments to the DIG 12-8XXXX report. The Board agreed that the record substantiates the DAIG determination that there is reportable information pertaining to the applicant in this report. 3. The Board agreed that the evidence does support a recommendation to refer the applicant to an SSB and to allow that process to run to completion, to include required post-SSB reviews, as applicable. 4. The Board found insufficient evidence to reinstate the applicant to active duty or to change his MRD. If he were to be selected for promotion by an SSB and his promotion were to be approved, there would be a basis in equity for constructively correcting his record to credit him with service through 1 June 2018 with any pay and allowances due. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by submitting his records to an SSB to be considered for promotion under the under the criteria and instructions established for the FY14 and FY15, COL, APL, AR Non-AGR, promotion selection board. a. If selected for promotion by the SSB and if otherwise eligible, his record should be corrected by establishing his COL promotion effective date and date of rank as if he had been originally selected under the earlier criteria identified by the SSB and by providing him all back pay and allowances due through his adjusted MRD as a COL as a result. b. If he is not selected for promotion by the SSB, he should be so notified by the appropriate promotion officials. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to amending DIG 12-8XXXX or reinstatement to active duty. 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. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. DODI 1320.04 establishes policy, assigns responsibilities, and prescribes procedures for the submission of military officer personnel actions for grades 0-10. Enclosure 4 (Adverse and Reportable Information), paragraph 1(b)(1), states reportable information is: a. information other than adverse information requested to be reported by the Senate Armed Services Committee or by any member of the Senate; or b. information related to alleged misconduct or impropriety, which is subject to an ongoing investigative, administrative, or judicial process; or c. credible information related to an individual's involvement or affiliation with a significant event that is widely known to the general public or members of Congress that brings discredit upon or call into question the integrity of members of the DOD, Components of the DOD, or the DOD. 3. Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive. 4. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides policy for selecting and promoting commissioned officers of both the ARNGUS and the USAR, and warrant officers of the USAR. a. Paragraph 3-18 (Removal from a Promotion List) states commanders; the Commander, HRC; and the Chief, Office of Promotions (Reserve Components) may recommend officers for removal for having a memorandum of reprimand placed in the OMPF. b. Paragraph 3-19 states officers and warrant officers who have either failed of selection for promotion or who were erroneously not considered for promotion through administrative error may be reconsidered from promotion by either a promotion advisory board or an SSB. Records of officers or former officers will be referred for SSB action when the Office of Promotions (Reserve Components) determines the ABCMR requests such a referral. c. Paragraph 3-20 (Information Provided to SSBs) states a promotion reconsideration board will consider the record of the officer as it should have been considered by the original board. The records of officers being reconsidered by an SSB will be compared with a sampling of those officers of the same competitive category who were recommended and who were not recommended for promotion by the original mandatory Reserve of the Army selection board. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170017373 2 1