IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220002093 APPLICANT REQUESTS: removal of the Department of the Army Inspector General (DAIG) Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation. He also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum to the President of the Department of the Army Suitability Evaluation Board (DASEB) * AR 15-6 Findings and Recommendations * Email exchange * memorandum from the Inspector General, Closing the Investigation * FOIA Request * Letter of Release and Statement of Wartime Service FACTS: 1. The applicant states the basis of this appeal is substantive inaccuracy and injustice. Specifically, the investigation did not provide him the opportunity to rebut the finding before the Approving Authority finalized the investigation, and the Investigating Officer did not sign the Findings and Recommendations. He requests that the subject investigation be removed entirely from his record where it is substantively inaccurate. 2. Review of the applicant’s records shows: a. The applicant was born in and will turn 60 b. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army National Guard on 6 August 1995. c. He was honorably separated from the ARNG on 10 June 2006 (twice Passover for promotion), and he was transferred to the U.S. Army Reserve. d. He entered active duty in support of Operational Support on 17 August 2010 and he was honorably released from active duty on 30 May 2011. e. On 28 June 2012, the U.S. Army Human Resources Command issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). f. The applicant was promoted to lieutenant colonel (LTC) on 1 July 2017. 3. On 7 March 2017, the Commanding General (CG), 103rd Sustainment Command (Expeditionary) appointed an Investigating Officer (IO) pursuant to AR 15-6. The purpose of this investigation was to determine the facts and circumstances surrounding the conduct of [Applicant], 470th Movement Control Battalion. To determine if there is merit to the allegation that he failed to foster a healthy command climate and/or disobeyed orders contrary to AR 600-20 (Army Command Policy) AR 600-100 (Army Professional and Leadership Policy) and Article 92, Uniform Code of Military Justice (UCMJ). a. The IO conducted interviews, collected sworn statements from various individuals, including the applicant. The IO also collected unit attendance rosters, appointment orders, and the applicant’s documents. b. Findings: After investigating the allegations that [Applicant] failed to foster a healthy command climate and disobeyed orders or regulations; both charges have been substantiated. Throughout the interview process which included superiors and subordinates, higher headquarters, and personnel of diverse ethnical backgrounds it is clear that [Applicant] lacks the trust of both subordinates and superiors. c. Recommendations: The IO recommend that a letter of reprimand be issued to [Applicant] to be filed in his OMPF (official military personnel file) and that he be taken out his current leadership assignment and be placed on a staff with a senior full time officer to mentor him on leadership as defined in AR 600-20 and AR 600-100. 4. A Department of the Army Inspector General Modified Report of Investigative Inquiry dated 30 May 2017, shows: a. On 10 February 2017, an AGR Soldier assigned to the S3 Section of the 470th Movement Control Battalion, Elwood, IL submitted an Inspector General Action Request (IGAR) to the 103rd Sustainment Command (Expeditionary) (ESC) via email complaining that his supervisor, [Applicant] failed to foster a healthy command climate and was guilty of violating 103rd ESC Policy by making his own hours and not wearing the Class B uniform on alternating Fridays. b. The Commanding General of the 103rd ESC directed the appointment of an AR 15-6 Investigating Officer- COL to conduct an investigation into the conduct of [Applicant]. The purpose of this AR 15-6 investigation is to determine if there is merit to the allegation that [Applicant] failed to foster a healthy command climate and/or disobeyed orders contrary to AR 600-20 and Article 92, UCMJ. c. The IO completed the AR 15-6 on 17 March 2017. The IO determined that “Throughout the course of my investigation, I learned [Applicant] consistently failed to follow orders and lead by example. In his own statement, he admits to not following the uniform of the day order and this is supported by the other personnel interviewed." In addition, the IO learned that applicant kept his own hours, coming and going as he saw fit with such consistency that units at every echelon within the chain of command noticed it. Finally, the sworn statements provided by those interviewed clearly showed a lack in [Applicant’s] ability to foster a healthy command climate. d. The IO found that the applicant failed to foster a healthy command climate in violation of AR 600-100, paragraphs 1-6 and 2-1 and AR 600-20 paragraph 1-5 and obey an order or regulation of Article 92, UCMJ and AR 600-20 paragraph 4-2. An investigation was initiated in accordance with AR 15-6 to determine if the above regulations were violated. The 103rd ESC conducted an investigation in accordance with AR 15-6, and all the documents gathered during the AR 15-6 investigation were relevant and accurate with regard to the allegations. It was further determined that the sworn consistent with the facts of the case and are considered to be credible. The preponderance of credible evidence indicated that [Applicant] failed to foster a healthy command climate and violated 103rd ESC Command Policy 03 (Working Hours...) and 103rd ESC Command Policy 31 (ASU Uniform). * The allegation that [Applicant] failed to foster a healthy command climate in violation of AR 600-100, paragraphs 1-6 and 2-1 and AR 600-20 paragraph 1-5, was substantiated * The allegation that [Applicant] failed to obey an order or regulation in violation of Article 92, UCMJ and AR 600-20 paragraph 4-2, was substantiated e. The DAIG concurs with the findings and recommendations of the investigation in accordance with AR 15-6 by the 103rd ESC. The DAIG conducted a thorough due process review of the AR 15-6 product and determined that due process was served in accordance with that regulation. Also, this report had a legal review and attached opinion that deemed the report legally sufficient. 5. On 30 May 2017, by letter, Command Inspector General of the 103rd Sustainment Command informed the applicant that the DAIG received allegations that he failed to foster a healthy command climate in violation of AR 600-100, paragraphs 1-6 and 2-1 and AR 600-20 paragraph 1-5 and that he failed to obey an order or regulation in violation of Article 92, UCMJ and AR 600-20 paragraph 4-2. These allegations were substantiated. The case is closed; however, under provisions of AR 20-1 and AR 25- 400-2, The Army Records Information Management System (ARIMS), the results will be maintained in the IG database. 6. On 16 March 2020, the U.S. Army Human Resources Command directed the applicant to show cause for retention because of misconduct, moral or professional dereliction, and derogatory information. 7. On 12 May 2020, a board of inquiry (BOI) was called to determine whether the appellant should be separated from the Army prior to the expiration of his current term of service, under the provisions of AR 600-8-24 (Officer Transfers or Discharges) paragraph 4-2b and paragraph 4-2c, for misconduct, moral or professional dereliction, and derogatory information filed in his AMHRR. The following findings are noted: * Finds: The allegation that [Applicant] has a referred OER) officer evaluation report) for the period of time covering 20160921-20170421 in his AMHRR constituting derogatory information in accordance with AR 600-8-24, paragraph 4-2c, is supported by a preponderance of the evidence. * Finds: The allegation that [Applicant] has a referred officer evaluation report for the period of time covering 20170422-20180421 in his AMHRR constituting derogatory information in accordance with AR 600-8-24, paragraph 4-2c, is supported by a preponderance of the evidence. * Finds: The allegation as to whether [Applicant] failed to conform to rules, regulations, and policies, is supported by a preponderance of the evidence. * Finds: The allegation as to whether [Applicant] had poor leadership and management techniques, is supported by a preponderance of the evidence. * Finds: The allegation as to whether [Applicant] misused a Government Travel Card, is supported by a preponderance of the evidence. 8. The BOI was approved on 5 June 2020. The BOI determined he should be retained. His elimination processing was stopped, and his case was closed. 9. On 14 October 2022, he requested the DASEB remove the BOI Proceedings/Closing of Elimination Actions/AR 15-6 investigation from the restricted portion of his AMHRR. The DASEB denied his request on 15 November 2022: a. The applicant requests removal of the BOI Proceedings/Closing of Elimination Actions/AR 15-6 investigation from the restricted portion of the AMHRR. In order to remove the documents from the official record, the burden of proof rests with the applicant to provide evidence of a clear and convincing nature that the documents are untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. b. The governing regulation states that DA Directed Elimination actions will be filed in the restricted section of the AMHRR. AR 600-8-24, paragraph 4-4, in pertinent part, states no officer will be considered for elimination for misconduct or conduct that has been the subject of administrative elimination proceedings that resulted in final determination that the officer should be retained in the Service. For purposes of this paragraph, an officer will be considered to have been the subject of elimination proceedings only if allegations against the officer were acted on by a BOI. HRC directed the applicant to show cause for retention on active duty because of misconduct, moral or professional dereliction and derogatory information. A BOI determined that he would be retained on active duty. c. The IG substantiated the allegations that the applicant had failed to foster a healthy command climate in violation of AR 600-100,''paragraphs 1-6 and 2-1 and AR 600-20 paragraph 1-5 and that he failed to obey an order or regulation in violation of Article 92, UCMJ and AR 600-20 paragraph 4-2. d. There are no provisions within either regulation for removal of BOI Proceedings/Closing of Elimination Actions/AR 15-6 investigation based on the ASRB's decision to amend or remove an OER. The ASRB's decision does not unsubstantiated the documents in the appellant's case. e. The purpose of maintaining the AMHRR is to protect the interests of the Army and the Soldier. In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the AMHRR. Once placed in the AMHRR, the documents become a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority. f. Given the foregoing discussion, the applicant has not shown with clear and convincing evidence that the continued presence of the BOI Proceedings/Closing of Elimination Actions/AR 15-6 investigation in the restricted portion of the official record creates an injustice. In conformance with the governing regulations, the presence of the documents meets the objectives of its permanent filing; it permits the Army to consider all available relevant information regarding the appellant's conduct and performance; it maintains an unbroken, historical record of the appellant's service and, it serves the best interests of the Army. 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, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The applicant's contentions, his military records, and regulatory guidance were carefully considered. The Board reviewed and agreed with the IG’s finding that the results of an investigation are maintained in the IG database under the provisions of AR 20-1 and AR 25-400-2 (ARIMS). There is a substantiated allegation that the applicant failed to foster a healthy command climate and/or disobeyed orders contrary to AR 600-20, AR 600- 100, and Article 92, UCMJ. The Board determined he did not provide a convincing argument or sufficient evidence to support removing the AR 15-6 from ARIMS. 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. REFERENCES: 1. Army Regulation 600-37, Unfavorable Information, sets forth policies and procedures to authorize placement of unfavorable information about Soldiers in individual official personnel files. a. Paragraph 1-1 states, in relevant part, that the intent of Army Regulation 600-37 is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and, to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. b. Paragraph 1-4 stipulates that the objectives of Army Regulation 600-37 are to apply fair and just standards to all Soldiers; protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility; to prevent adverse personnel action based on unsubstantiated derogatory information or mistaken identity; to provide a means of correcting injustices if they occur; and, to ensure that Soldiers of poor moral character are not continued in Service or advanced to positions of leadership, trust, and responsibility. c. Paragraph 3-2c states that unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. These traits must be identified early and shown in permanent official personnel records that are available to personnel managers and selection board members for use in making decisions that may result in selecting Soldiers for positions of public trust and responsibility or vesting such persons with authority over others. Other unfavorable character traits of a permanent nature should be similarly recorded. d. Paragraph 7-2a, states that once an official document is properly filed in the AMHRR, it is presumed to be administratively correct and filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.1. (Optional as applicable.) 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. Army Regulation 20-1 (IG Activities and Procedures), 23 March 2020, prescribes policy and procedures concerning the mission and duties of The Inspector General. It also prescribes duties, missions, standards, and requirements for IGs throughout the Army. Responsibilities are prescribed for commanders and heads of agencies, activities, centers, and installations for the support of IG activities. a. Paragraph 1-5 states the records management requirement for all record numbers, associated forms, and reports required by this regulation are addressed in the Army Records Retention Schedule-Army. Detailed information for all related record numbers, forms, and reports are located in ARIMS. b. Paragraph 3-1 states: (1) The mission of the Army IG records, and information release program is to balance the confidentiality of those seeking assistance from, testifying to, and providing information to the IG with the law, with the needs of the Army, and with due process concerns. This balanced release enhances the public's trust in the Army IG system and in the IG's effectiveness as an impartial inspector, assistor, and investigator. All IG records and information, including USAR and Army National Guard IG records and information, belong to the Secretary of the Army. IGs maintain these records and safeguard this information on behalf of the Secretary of the Army. The Secretary of the Army's designated authority for the maintenance and release of all IG records and information is The Inspector General. (2) 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. (3) Non-IG records are documents contained within an IG file created by other Army or Federal agencies or documents from outside the Federal Government. While these records may be under the control of the IG for purposes of conducting inspections, assistance inquiries, investigative inquiries, and investigations, release of these records remains under the jurisdiction of the originating organization. 6. Army Regulation 15-185 (ABCMR) 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, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002093 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1