IN THE CASE OF: BOARD DATE: 18 May 2020 DOCKET NUMBER: AR20180015281 APPLICANT REQUESTS: * correction of substantiated allegations against him in the Department of the Army Office of the Inspector General (DAIG) Report of Investigation (ROI) NPR 15-XXXX to show they are unsubstantiated * a personal appearance hearing before the Army Board for Correction of Military Records (ABCMR) 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) * Statement, undated, subject: Request for Reconsideration NPR 15-XXXX, with12 exhibits – * Exhibit 1 – DA Form 2823 (Sworn Statement), Sergeant First Class O____, dated 14 December 2016 * Exhibit 2 – Orders , Puerto Rico National Guard (PRNG) Element, dated 28 April 2016 * Exhibit 3 – Orders , Headquarters, III Corps and Fort Hood, dated 20 July 2016 * Exhibit 4 – Army Physical Fitness Test History, Soldier Summary Army National Guard (ARNG) Current Strength, undated * Exhibit 5 – Letter, Installation Legal Office, U.S. Army Installation Management Command and Headquarters, U.S. Army Garrison- Fort Buchanan, dated 5 January 2017 (Secretary of the Electoral Comptroller's Office) * Exhibit 6 – Letter, Installation Legal Office, U.S. Army Installation Management Command and Headquarters, U.S. Army Garrison- Fort Buchanan, dated 9 January 2017 (Interim Secretary) * Exhibit 7 – Letter, Department of State, Commonwealth of Puerto Rico, dated 5 December 2016 * Exhibit 8 – Letter, Installation Legal Office, U.S. Army Installation Management Command and Headquarters, U.S. Army Garrison- Fort Buchanan, dated 9 January 2017 (Director of the Bureau of Occupational Health and Safety, Superintendent of the Capitol) * Exhibit 9 – Letter, Installation Legal Office, U.S. Army Installation Management Command and Headquarters, U.S. Army Garrison- Fort Buchanan, dated 28 March 2017 (Assistant Superintendent of Police) * Exhibit 10 – Letter, Installation Legal Office, U.S. Army Installation Management Command and Headquarters, U.S. Army Garrison- Fort Buchanan, dated 4 January 2017 (Executive Director in the Mayors Association of Puerto Rico) * Exhibit 11 – Department of Defense (DOD) Hotline Online Complaint Form, Applicant, printed 28 September 2016 * Exhibit 12 – Email, Applicant and Command Inspector General (IG), PRNG, dated 1 December 2016 through 4 December 2016 * Letter, Records Release Office, DAIG, dated 2 November 2016 * DA Form 2823 (Sworn Statement), Applicant, dated 14 December 2016 REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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. 2. Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Paragraph 5-2 states investigating officers may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 3. Army Regulation 600-20 (Army Command Policy) prescribes the policies and responsibilities of command, which include the Army Ready and Resilient Campaign Plan, military discipline and conduct, the Army Equal Opportunity Program, and the Army Sexual Harassment/Assault Response and Prevention Program. a. Paragraph 5-3 (Political Activities) states a Soldier on active duty may register, vote, and express his or her personal opinions on political candidates and issues, but not as a representative of the Army. He or she may attend partisan and nonpartisan political meetings or rallies as a spectator when not in uniform. A Soldier on active duty will not use his or her official authority or influence for interfering with an election; affecting the course or outcome of an election; soliciting votes for a particular candidate or issue; or requiring or soliciting political contributions from others. He or she may not be a candidate for or hold civil office, or participate in partisan political management, campaigns, or conventions. b. Appendix B (Political Activities) provides guidelines and examples of permissible and prohibited political activities. 4. DOD Directive 1344.10 (Political Activities by Members of the Armed Forces), dated 19 February 2008, states it is DOD policy to encourage members of the Armed Forces to carry out the obligations of citizenship. In keeping with the traditional concept that members on active duty should not engage in partisan political activity, and that members not on active duty should avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement, the following policy will apply: a. A member of the Armed Forces on active duty may: (1) register, vote, and express a personal opinion on political candidates and issues, but not as a representative of the Armed Forces; (2) promote and encourage others to exercise their voting franchise, if such promotion does not constitute use of their official authority or influence to interfere with the outcome of any election; (3) join a partisan or nonpartisan political club and attend its meetings when not in uniform, subject to certain restrictions; (4) serve as an election official, if such service is not as a representative of a partisan political party, does not interfere with the performance of military duties, is performed when not in uniform, and the Secretary concerned has given prior approval. The Secretary concerned may NOT delegate the authority to grant or deny such permission; (5) sign a petition for a specific legislative action or a petition to place a candidate's name on an official election ballot, if the signing does not obligate the member to engage in partisan political activity and is done as a private citizen and not as a representative of the Armed Forces; (6) write a letter to the editor of a newspaper expressing the member's personal views on public issues or political candidates, if such action is not part of an organized letter-writing campaign or a solicitation of votes for or against a political party or partisan political cause or candidate. If the letter identifies the member as on active duty (or if the member is otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly state that the views expressed are those of the individual only and not those of DOD (or Department of Homeland Security for members of the Coast Guard); (7) make monetary contributions to a political organization, party, or committee favoring a particular candidate or slate of candidates, subject to certain limitations; (8) display a political bumper sticker on the member's private vehicle; (9) attend partisan and nonpartisan political fundraising activities, meetings, rallies, debates, conventions, or activities as a spectator when not in uniform and when no inference or appearance of official sponsorship, approval, or endorsement can reasonably be drawn; and (10) participate fully in the Federal Voting Assistance Program. b. A member of the Armed Forces on active duty shall not: (1) participate in partisan political fundraising activities, rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one's own behalf or on that of another, without respect to uniform or inference or appearance of official sponsorship, approval, or endorsement. Participation includes more than mere attendance as a spectator; (2) use official authority or influence to interfere with an election, affect the course or outcome of an election, solicit votes for a particular candidate or issue, or require or solicit political contributions from others; (3) allow or cause to be published partisan political articles, letters, or endorsements signed or written by the member that solicits votes for or against a partisan political party, candidate, or cause. This is distinguished from a letter to the editor as permitted under the conditions noted; (4) serve in any official capacity with or be listed as a sponsor of a partisan political club; (5) speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate, or cause; (6) participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause; (7) conduct a political opinion survey under the auspices of a partisan political club or group or distribute partisan political literature; (8) perform clerical or other duties for a partisan political committee or candidate during a campaign, on an election day, or after an election day during the process of closing out a campaign; (9) solicit or otherwise engage in fundraising activities in Federal offices or facilities, including military reservations, for any political cause or candidate (10) march or ride in a partisan political parade; (11) display a large political sign, banner, or poster (as distinguished from a bumper sticker) on a private vehicle; (12) display a partisan political sign, poster, banner, or similar device visible to the public at one's residence on a military installation, even if that residence is part of a privatized housing development; (13) participate in any organized effort to provide voters with transportation to the polls if the effort is organized by or associated with a partisan political party, cause, or candidate; (14) sell tickets for or otherwise actively promote partisan political dinners and similar fundraising events; (15) attend partisan political events as an official representative of the Armed Forces, except as a member of a joint Armed Forces color guard at the opening ceremonies of the national conventions of the Republican, Democratic, or other political parties recognized by the Federal Elections Committee or as otherwise authorized by the Secretary concerned; and (16) make a campaign contribution to, or receive or solicit (on one's own behalf) a campaign contribution from, any other member of the Armed Forces on active duty. Any contributions not prohibited by this subparagraph remain subject to the gift provisions of Title 5, Code of Federal Regulations. c. Subject to any other restrictions in law, a member of the Armed Forces not on active duty may take the actions or participate in the activities permitted and may take the actions and participate in the activities prohibited, provided the member is not in uniform and does not otherwise act in a manner that could reasonably give rise to the inference or appearance of official sponsorship, approval, or endorsement. 5. Army Regulation 20-1 (Inspector General Activities and Procedures) prescribes policy and procedures concerning the mission and duties of The Inspector General. a. Paragraph 1-12g (The Triangle of Confidentiality) states the triangle contains three parties – the commander, the complainant (or person providing information to an IG), and the IG – and is an extension of the commander-IG relationship. In general, IGs may share the most sensitive, attributable IG information within the triangle, although the IG is under no obligation to reveal sources if they are not pertinent to the issues or topics under consideration. The third person in the triangle – the complainant or person providing information to the IG – is normally allowed to know only those things that directly affect him or her and no more. b. Paragraph 3-1 (IG Records) states IG records are documents that IGs produce through the performance of IG duties or documents given to an IG in confidence, such as in the course of receiving an IG complaint. IG records often contain sensitive and confidential information and advice. Army IG records include written or recorded IG work-products created during the course of an IG inspection, assistance inquiry, investigative inquiry, or investigation. Examples include IG reports, IG Network data, or other computer automatic data processing files or data, to include IG notes and working papers. Documents given to the IG in confidence and not referred to the command are considered IG records as well. c. Paragraph 3-12 (Requests for Reconsideration of Inspector General Findings, Opinions, Judgment, or Conclusions) states a request for reconsideration of the findings of an IG investigative inquiry or investigation may be submitted upon the discovery of new evidence, identification of a mistake of law, or identification of a mistake of fact. New evidence is that information not considered during the course of the initial investigation and that was not reasonably available to the investigator for consideration. New evidence does not include character references, letters of recommendation, or information that, while not considered at the time of the original investigation, the requestor and/or subject/suspect of the investigation could have provided to the investigator during the course of the investigation. Requests will be submitted within 3 years of the IG's notification of the report's findings to the requestor. All requests to add or delete a subject, alter a function code, and/or alter an allegation determination in an IG record, regardless of the source, will be forwarded or directed to DAIG's Assistance Division for referral to the appropriate divisions within DAIG. The division chiefs of DAIG's Assistance, Investigations, or Records-Screening Divisions may disapprove requests for reconsideration not accompanied by new evidence or lacking in any argument supporting the reconsideration. The IG is the only authority who may approve requests to amend determinations in IG records. 6. Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)), in effect at the time, prescribed Army policy for the suspension of favorable personnel actions (flag) function of the military personnel system. a. Paragraph 2-3 (Circumstances Requiring a Transferable Flag) stated a Soldier flagged under the provisions of this paragraph may be reassigned to another unit. Examples of circumstances requiring transferable flags include Army Physical Fitness Test (APFT) failure. b. Paragraph 2-8 (Rules for Transferring a Flag) stated the losing command is responsible for providing the gaining command with flag supporting documents for Soldiers with transferable flags. When a flagged Soldier is reassigned, the responsibility to manage the flagging action transfers to the gaining commander. c. Paragraph 2-9 (Removal of a Flag) stated only officers authorized to direct initiation of a flag may direct removal of a flag. The rules for removing a flag for APFT failure stated to remove the flag on the date the Soldier passes the record APFT. FACTS: 1. The applicant states: a. Several members of the PRNG were unjustly investigated or prosecuted by the IG and retaliated against by the Adjutant General. He identified several irregularities and jurisdiction issues in the investigation and provided robust and direct evidence supporting non-substantiation on all allegations. The DAIG reconsidered his case and amended one of the allegations. b. For the first allegation, that he improperly removed APFT flags of three Soldiers after their final Soldier Readiness Processing to Honduras without the Soldiers conducting a required APFT, he was merely a requestor and did not have the authority to remove the flag. He was also misled by the Mobilization and Readiness Officer of the PRNG because the removal was not necessary for an involuntary mobilization. So the replacement of Soldiers or removal of flags was not even necessary to mobilize them. c. For the third allegation, that he improperly served in an official capacity with and was listed as a sponsor of a partisan political club while in an active duty status, his constitutional rights were violated. The Command IG did not provide an opportunity to respond to the substantiated finding. It was not a Federal matter, so the IG shouldn't have investigated. The complainant's statements were false or incorrect. d. The findings of both allegations should be amended to show "not substantiated." (1) For the first allegation: (a) He did not have the access or authority to execute the action to remove a suspension of favorable actions flag. (b) The division staff provided wrong advice. This issue should have been resolved without the removal of flags, the Department of the Army Mobilization Processing System (DAMPS)-Overseas Contingency Operations Temporary Change of Station (OCOTCS) would have allowed it. Their misguidance and lack of knowledge of the DAMPS-OCOTCS created an apparent inconsistency between system and regulation that lead to the request to remove the flags. (2) For the third allegation: (a) The physical evidence submitted demonstrated inconsistencies with the complainant and the witness testimonies wrongfully stating his whereabouts during the month of October 2014. (b) It also validates that an original or copy of the document referenced in the ROI are not in the City Mayors Association's files nor evidence of its submission. This document was not attached or included in the ROI; its custodian is unknown; it is also unknown if it is an original, a copy, stolen, or falsified. If there were signatures, he questions how were they verified or validated. (c) The physical evidence also demonstrates that "Organizacion De Servidores Publicos-Guardia Nacional" does not exist as a corporation or as a political club in Puerto Rico, and he does not occupy any position in the Popular Democratic Party. (d) It is also his understanding that the majority of the subjects received a letter amending the investigation findings to "not substantiated." (e) During the investigation, he questioned Colonel C____'s authority to serve as the directing authority; the absence of legal counseling; the Command IG's "Federal interest"; violations of the Triangle of Confidentiality; the Command IG's violations of Army Regulation 20-1; U.S. Constitution violations; and abuse of the IG system by Lieutenant Colonel D____ and her husband Lieutenant Colonel C____, Mrs. A____, Captain F____, and Brigadier General C____. 2. He was serving in the Puerto Rico ARNG in the Active Guard Reserve Program in the rank/grade of lieutenant colonel/O-5 at the time he became the subject of a DAIG ROI. 3. The DAIG ROI (Case NPR 15-XXX) Executive Summary, undated, states: a. A complainant sent an email to the National Guard Bureau IG with a DA Form 1559 (IG Action Request) and, through subsequent email, amended the complaint to include allegations of improper political activities conducted by members of the PRNG and irregularities in the mobilization process of the 225th Military Police Company (Forward) to Honduras related to conducting the APFT, Army Body Composition Program, and improper removal of flagging actions. b. The Army Regulation 15-6 Investigation Report determined the applicant improperly removed APFT flags for three Soldiers. During a meeting on 17 November 2014, the applicant made the decision to remove the APFT flags for the three Soldiers without proper supporting documentation based on his understanding of the Personnel Policy Guidance that the APFT flag was not a bar for deployment. The applicant stated he removed the APFT flags to enable the DAMPS-Army system to publish the mobilization orders for the three Soldiers. Multiple witnesses and subject testimonies are consistent with the facts and considered credible evidence. c. Regarding the allegations of improper political activities conducted by members of the PRNG, the complainant provided documentary evidence in support of the allegations (pages 2-3 of the Executive Summary). d. The applicant was one of 29 individuals named as subjects of the ROI. e. The allegation stating the applicant improperly removed APFT flags of three Soldiers after a final Soldiers Readiness Processing for mobilization to Honduras without the Soldiers conducting a required APFT was substantiated. f. The applicant had the opportunity to provide testimony to the IG in relation to the allegations that he improperly served in an official capacity with and was listed as a sponsor of a partisan political club while serving in an active duty status and as an official representative of the Armed Forces, but he did not and waived his rights on 24 July 2015. g. The allegation stating the applicant improperly served in an official capacity with and was listed as a sponsor of a partisan political club while serving in an active duty status and as an official representative of the Armed Forces was substantiated. Various witnesses who participated during the assembly on 23 October 2014 testified, confirming the attendance and leading role of the applicant. Additionally, most of the witnesses testified and identified most of the subjects who participated in the assembly meeting and who are on the sign-in roster list as well. Furthermore, most of the witnesses testified that the meeting was about the PRNG and the political party as described in the Resolution document. The witnesses' testimonies and documentary evidence are consistent with the facts and considered credible evidence. 4. The email between the applicant and the PRNG Command IG, dated 1 December 2016 through 4 December 2016, shows the applicant requested reopening his investigation to allow him to provide exculpating evidence and instructions for submitting his rebuttal. The Command IG informed the applicant that he was given the opportunity to present the evidence to the IG investigating officer and the investigation was closed. The Command IG informed the applicant that the next higher authority is the National Guard Bureau IG and the DAIG. 5. The applicant provided a letter from the Department of State, Commonwealth of Puerto Rico, dated 5 December 2016, stating their records do not have any corporation registered under the name of "Organizacion De Servidores Publicos-Guardia Nacional." 6. The sworn statement from Sergeant First Class O____, dated 14 December 2016, states: a. DAMPS-OCOTCS is the correct system used to create and publish involuntary mobilization orders. This system allows for Soldiers with transferrable APFT flags to have mobilization orders published. b. In the particular case of the 225th Military Police Company (Forward), he understood the G-1 and G-3 mobilization personnel confused DAMPS-OCOTCS with DAMPS-Army, which deals with voluntary mobilization that does not allow Soldiers with APFT flags to have mobilization orders published. c. Stating that Soldiers couldn't have involuntary mobilization orders if they have APFT flags is not a correct statement that could have misled personnel actions. 7. The sworn statement from the applicant, dated 16 December 2016, states he did not go to the Governor's Mansion for any formal or informal meetings regarding civilian, military, or political matters during the month of October 2014. 8. The applicant provided five certification documents from the Language Specialist, Installation Legal Office, U.S. Army Installation Management Command and Headquarters, U.S. Army Garrison-Fort Buchanan, dated 4 January 2017 through 9 January 2017, interpreting written Spanish language documents. a. The document from the Secretary of the Electoral Comptroller's Office, dated 5 December 2016, certifies that after searching their files, the entity "Servidores Publicos Populares" is not found or registered. b. The document from the Interim Secretary, dated 5 December 2016, states the applicant does not hold any position within the Popular Democratic Party. c. The document from the Director of the Bureau of Occupational Health and Safety, Superintendent of the Capitol, dated 8 December 2016, verified the applicant's name doesn't appear on the visitors’ entrance register for the month of October 2014. d. The document from the Executive Director in the Mayors Association of Puerto Rico, dated 14 December 2016, found no documented request from the applicant nor records of visitors without a previous appointment in their headquarters. e. The document from the Assistant Superintendent of Police, dated 28 March 2017, states the applicant did not visit the Fortaleza or any of its buildings or any of its offices during October 2014 or any later dates. If he did, there would be an entry in the security entrance registry. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence of an error or injustice which would warrant a correction of the applicant’s record. After reviewing the facts and circumstances, the Board found that all due process protections were afforded the applicant and that the processing of the Department of the Army Office of the Inspector General (DAIG) Report of Investigation (ROI) was done within regulatory guidelines and standards. For that reason, the Board recommended that denying the requested relief was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015281 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1