ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 November 2020 DOCKET NUMBER: AR20200002731 APPLICANT REQUESTS: correction of the Inspector General (IG) Action Request System (IGARS) database to unsubstantiate an allegation of an inappropriate relationship contained in the Department of the Army (DA) IG Report of Investigation (ROI). 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) * Letter, Applicant, dated 19 August 2019 * Army Directive 2018-01 (IG Investigations), dated 26 January 2018 * Promotion Review Board Rebuttal, dated 9 August 2018 * Request for Reconsideration of IG Findings, dated 2 October 2018 * Letter, Office of the Inspector General (TIG), dated 14 August 2019 * Tab 1 – Memorandum, Applicant, dated 28 July 2018, subject: Rebuttal to Department of Defense (DOD) Hotline Completion Report * Tab 2 – U.S. Army Criminal Investigation Command (CID) ROI (Redacted), dated 22 September 2008 * Tab 3 – Witness Statement, Colonel (COL) dated 23 May 2011 * Tab 4 – * Witness Statement, Lieutenant Colonel (LTC) dated 14 February 2011 * Witness Statement, dated 23 May 2011 * Tab 5 – * DOD Hotline Completion Report (Revised) (Redacted), dated 26 August 2010 * Witness Statement, Captain (CPT), dated 23 December 2011 * Witness Statement, Major (MAJ) dated 5 May 2011 * Witness Statement, Master Sergeant (MSG) dated 3 June 2011 * Tab 6 – * Officer Record Brief, dated 1 October 2018 * DA Form 67-10-2 (Field Grade Plate (O4-5; CW3-CW5) Officer Evaluation Report (OER)) covering the period 1 July 2016 through 23 May 2017 * DA Form 67-10-2 covering the period 21 January 2015 through 30 June 2016 * DA Form 67-10-2 covering the period 19 May 2011 through 20 January 2015 * DA Form 67-9 (OER) covering the period 20 June 2009 through 18 May 2011 * DA Form 67-9 covering the period 20 June 2008 through 19 June 2009 * Tab 7 – * Character Letter, Major General (MG) dated 24 July 2018 * Character Letter, COL dated 29 July 2018 * Character Letter, LTC dated 20 July 2018 * Character Letter, MAJ dated 22 July 2018 * Character Letter, First Sergeant (1SG) dated 19 July 2018 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 Army Board for Correction of Military Records (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 15-6 (Procedures for Investigating Officers and Boards of Officers), in effect at the time, established procedures for investigations and boards of officers not specifically authorized by any other directive. 3. Army Regulation 20-1 (IG Activities and Procedures), in effect at the time, prescribed policy and procedures concerning the mission and duties of the DAIG. It also prescribed duties, missions, standards, and requirements for IGs throughout the Army. Responsibilities are prescribed for commanders; State Adjutants General; and heads of agencies, activities, centers, and installations for the support of IG activities. a. Paragraph 3-3 (Use of IG Records for Adverse Action) stated: (1) IG records will not be used as the basis for adverse action against any individual unless specifically authorized by the Secretary of the Army, the Under Secretary of the Army, the Chief of Staff of the Army, the Vice Chief of Staff of the Army, or The IG. Any request to use the results of an IG investigation for adverse action must state why the command did not initiate a command investigation into the alleged misconduct and why a follow-on command investigation would be unduly burdensome, disruptive, or futile. Command investigations preclude the necessity of using IG records for adverse action and thereby safeguard the integrity of the IG system. An exception to this rule is the use of DODIG-approved reports of investigation or investigative inquiry containing substantiated non-senior official allegations of violations of Title 10, U.S. Code, section 1034 (Reprisal), as a basis for adverse action. (2) Commanders and supervisors seeking to use IG records as the basis for adverse action should request only the minimum amount of evidence necessary. The request should describe precisely which portions of the IG records are necessary to support the adverse action and why. Assistance in determining whether an action is deemed adverse may be obtained from the servicing legal office. The IG will encourage consultation between the commander or supervisor concerned and the servicing legal office regarding the need for IG records for adverse action and the availability of other evidence. IG opinions, conclusions, and recommendations are not evidence and will not be used as a basis for adverse action. (3) Commanders and supervisors will not initiate flagging actions for individuals under IG investigation, because such an action could be construed as adverse in nature. Commanders or supervisors seeking approval for the use of IG records for adverse action may flag the individual upon TIG, Deputy TIG, or Principal Director to the IG for Inspections approval to use IG records to support the adverse action. This provision does not preclude U.S. Army Human Resources Command or another similar DA-level agency from initiating a DA-level flag on individuals identified, as the result of a DAIG record screen, as having a substantiated finding from an IG investigation or investigative inquiry or pending IG investigation in order to stop a promotion or assignment until the IG investigation is concluded. b. Paragraph 3-12 (Requests for Reconsideration of IG Findings, Opinions, Judgment, or Conclusions) stated 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 the DAIG Assistance Division for referral to the appropriate divisions within the DAIG. The division chiefs of the DAIG 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. c. Paragraph 6-1d (The IG Action Process) stated IGs will use the seven-step IG action process outlined in the Assistance and Investigations Guide to perform IG assistance in all components of the Army. The process outlined in the guide represents IG doctrine and is authoritative in nature. (1) Step 5 (Make Notification of Results) stated at the completion of the assistance inquiry, the IG will notify the complainant of the results that pertain directly to the complainant verbally or in writing and then annotate the notification in the case file and IG actions database. (2) Step 6 (Conduct Follow-Up) stated: (a) IGs will ensure that, upon closing the file, they have addressed all issues and allegations appropriately and have fulfilled all IG responsibilities. (b) Follow-up will include a review of issues previously addressed to determine if further appeal procedures are available or if the IG must examine due process. Follow- up for a command-addressed issue can be a review of the command product to determine if the issues and allegations were addressed. (c) An IG will not close the case until completing all appropriate actions. (3) Step 7 (Close the IG Action Request) stated: (a) IGs will ensure that the synopsis entered into the IG actions database includes an evaluation of the facts and evidence examined, as well as a conclusion that the issues were "founded" or "unfounded." (b) IGs will, upon closing the case in the IG actions database, analyze the issue(s) addressed for trends and systemic implications throughout the command. (c) Those IGs who lack connectivity to the IG actions database will forward completed case data to the DAIG in accordance with guidance provided by the DAIG Information Resource Management Division. (d) IGs will encourage complainants who are not satisfied with the IG's conclusions to seek redress through the next higher IG before elevating the matter to the DAIG or DODIG. d. Paragraph 7-1b (The IG Action Process) stated IGs will use the seven-step IG action process outlined in the Assistance and Investigations Guide to perform IG assistance in all components of the Army. The process outlined in the guide represents IG doctrine and is authoritative in nature. (1) Step 5 (Make Notification of Results) stated the provision in bparagraph 2b(1) applies. The following prescriptive measures also apply to this step of the IG action process: (a) The IG will notify the subject or suspect of the approved results of the investigation or investigative inquiry in writing (by return receipt if using the postal system) and record that action in the IG actions database. The information in the database must accurately address the allegations, conclusions, recommendations, and command actions. (b) As part of the written notification, the IG will explain to subjects or suspects with substantiated allegations or other unfavorable information the procedures necessary to obtain copies of the ROI or report of investigative inquiry under the Freedom of Information Act. (c) The IG will notify the subject's or suspect's commander or supervisor of the approved findings. If notifying any of these persons is inappropriate, the IG will notify a higher-level commander of the results. (d) IGs will notify appropriate commanders of substantiated conclusions even if the IG did not initially notify the commander of the investigative inquiry or investigation. (e) IGs will notify subjects or suspects of any unfavorable information that the IG included in the ROI or report of investigative inquiry for which the subject or suspect was not apprised. (f) IGs will maintain all notification records with the case file if the IG cannot attach the record to the electronic IG actions file. (2) Step 6 (Follow-Up) stated the IG will ensure that any responses from the subject or suspect to unfavorable information that will appear in ROI or report of investigative inquiry are maintained with the case file if the IG cannot attach the record to the electronic IG actions file. Similarly, the IG will ensure that any notification of unfavorable information made to the subject or suspect, as opposed to unfavorable information made known and documented during the interview process, is maintained with the case file if the IG cannot attach the notification to the electronic IG actions file. (3) Step 7 (Close the IG Action Request) stated the provisions in paragraphs 2b(3)(a) through 2b(3)(d) apply. The following prescriptive measure also applies to this step of the process: The IG will notify the complainant in writing, record the action in the IG actions database, and maintain the notification record with the case file if the IG cannot attach the record to the electronic IG actions file. e. Paragraph 7-3 (Use of Command Products in Investigations and Investigative Inquiries) stated: (1) Referring allegations to the command. An IG will resolve all allegations brought to the IG and that are appropriate for IG action – even allegations referred to the command for resolution. Referrals may go to the IG's directing authority or through the directing authority to a subordinate commander for action. Once the commander resolves the allegation and generates a command product, the IG must include the command product as evidence, possibly the primary evidence, in an ROI, Report of Investigation Inquiry (ROII), or hotline completion report to resolve the allegation within the IG system and capture the findings in the IGARS database. (2) Command products. Command products include, but are not limited to: Rule for Courts-Martial 303 preliminary inquiries; Article 138, Uniform Code of Military Justice, inquiries or investigations; and formal and informal investigations conducted under the provisions of Army Regulation 15-6. IGs will not substitute command products for an ROI, ROII, or hotline completion report. (3) Agreement with the command product. If the IG agrees with the command product – and the command has sufficiently addressed all allegations the IG is also resolving; adhered to due-process considerations; received a legal review if required; and afforded rights to all persons involved, to include providing the subject or suspect an opportunity to know and comment on the unfavorable information – the IG may include that command product in a modified ROII and capture the same findings in the IGARS database. (4) Disagreement with the command product. If the IG disagrees with the command product's findings – or the command product does not address all allegations referred by the IG, due-process considerations have not been met, or the subject or suspect has not had an opportunity to know and comment on the unfavorable information – the IG must complete a full ROI, ROII, or hotline completion report that addresses these command-product flaws and that uses independent fact finding and considers using some or all of the command product as evidence. (5) Legal reviews. Regardless of the conclusion, if the IG makes a determination that contradicts the conclusion reached in the command product, the IG will obtain a legal review of the ROI, ROII, or hotline completion report. Since the command product in question has already had a legal review, the IG must ensure that any decision or finding that overrides previous legal advice receives a fresh legal examination. The IG will describe the progression of legal reviews as part of the discussion in the ROI, ROII, or hotline completion report of the command product's flaws. 4. Army Regulation 600-20 (Army Command Policy), in effect at the time, prescribed the policies and responsibilities of command, which include relationships between Soldiers of a different rank. a. Relationships between Soldiers of different rank are prohibited if they: (1) compromise, or appear to compromise, the integrity of supervisory authority or the chain of command; (2) cause actual or perceived partiality or unfairness; (3) involve, or appear to involve, the improper use of rank or position for personal gain; (4) are, or are perceived to be, exploitative or coercive in nature; or (5) create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. b. These prohibitions are not intended to preclude normal team building associations that occur in the context of activities such as community organizations, religious activities, family gatherings, unit-based social functions, or athletic teams or events. c. All military personnel share the responsibility for maintaining professional relationships. However, in any relationship between Soldiers of different grade or rank, the senior member is generally in the best position to terminate or limit the extent of the relationship. Nevertheless, all members may be held accountable for relationships that violate this policy. d. Commanders should seek to prevent inappropriate or unprofessional relationships through proper training and leadership by example. Should inappropriate relationships occur, commanders have available a wide range of responses. These responses may include counseling, reprimand, order to cease, reassignment, or adverse action. Potential adverse action may include official reprimand, adverse evaluation report(s), nonjudicial punishment, separation, bar to reenlistment, promotion denial, demotion, and courts-martial. Commanders must carefully consider all of the facts and circumstances in reaching a disposition that is warranted, appropriate, and fair. 5. Army Directive 2018-01 amends regulatory policy for IGs regarding procedures for investigating issues or allegations present to IGs and for closing cases in the IGARS database. This directive rescinds Army Regulation 20-1, paragraph 7-3. This directive does not apply to investigations pursuant to The Military Whistleblower Protection Action (Title 10, U.S. Code, section 1034). a. Pursuant to Army Regulation 20-1, paragraph 7-1, IGs will not investigate complaints received from complainants when the command elects to resolve those matters using a commander's investigation or inquiry. IGs will always afford their commanders or directing authorities, or subordinate commanders who have the means to investigate, the opportunity to resolve the matter within command channels. If the allegation comes to the IG but the command elects to investigate the matter, the IG will refer the allegation to the command and await the command product to resolve the allegation in the IG system. All allegations that begin with the IG – and are appropriate for IG action – must end with the IG. b. Effective immediately, IGs will not close out issues or allegations in IGARS as "substantiated" or "not substantiated" when those issues or allegations were received by an IG and then referred by the IG to the command for investigation. If the command elects to investigate the matter the IG referred, the IG will formally refer the issue or allegation to the command using a referral memorandum. The IG will open a case in IGARS, upload a copy of the referral, and enter into the case notes the nature of the allegation received, the date of referral, the date of command acceptance, and the name of the complainant. Once the command completes the investigation, the IG will review the investigation only to ensure that the command answered all the issues or allegations the IG referred. If the command investigation answers all issues referred to the command, the IG will annotate in the case notes the form of action the command took (for example, commander's inquiry, Army Regulation 15-6 investigation, and so on) and close the case as "assistance." c. If the IG believes the command investigation did not answer the issues or allegations the IG referred, the IG will first provide the commander responsible for conducting the investigation the opportunity to resolve the unanswered issues or allegations. If the commander and the IG disagree about whether all issues or allegations have been addressed, the IG will present the matter to the next higher commander for action. If the next higher commander is the directing authority, the IG will first obtain a legal review from his or her servicing legal office to determine whether the command investigation appropriately addressed all issues or allegations. The directing authority may order the command to do an additional investigation or direct the IG to investigate. If the directing authority directs the IG to investigate, at the completion of the investigation, the IG will close the case in IGARS as "substantiated," "not substantiated," or other entry as may be appropriate. d. If the directing authority determines that the command investigation answered the issues or allegations the IG referred to the command and the IG disagrees, the IG will close the case in IGARS, note the concerns regarding unanswered issues or allegations, and refer the matter to the next higher IG office for review. The immediate higher command IG will open a case in IGARS and do one of the following: (1) determine that the original command investigation answered all issues or allegations presented by the field IG and close the case as "assistance" in IGARS, or; (2) present the matter to his or her directing authority with a recommendation that the directing authority either initiate an investigation into the unanswered issues or allegations, or direct the subordinate command to conduct an additional investigation into the unanswered issues or allegations. In either case, the IG must first obtain a legal review from the servicing legal office agreeing with the position that the command investigation did not address all the issues or allegations. If the directing authority determines an additional investigation is not warranted, the IG will note the decision and close the case in IGARS as "assistance." e. All relevant documentary evidence provided to an IG as part of a complaint or allegation will be provided to the command upon referral of the allegation to the command. The complainant (or party providing the documentary evidence) will be informed in writing that, should the party decide to provide documentary evidence to the IG as part of the complaint and, should the IG refer the complaint to the command, the documentary evidence will be provided to the command for use in the command's investigation or inquiry, regardless of whether the party subsequently decides not to participate in the command investigation. The IG will ensure, to the maximum extent possible, that the confidentiality of the person providing the documentary evidence is protected. f. Complaints referred to an IG as a result of a DODIG Hotline complaint and subsequently referred to the command for investigation will follow the procedures outlined in this directive. However, the review the IG conducts will not be limited to an assessment of whether the issues or allegations have been answered. The IG will use the command product to complete a DOD Hotline completion report and close the case as "assistance" in IGARS, noting the action the IG took. 6. DOD Directive 7050.06 (Military Whistleblower Protection), dated 23 July 2007, prescribed guidance relating to the Military Whistleblower Protection provisions of law (Title 10, U.S. Code, Section 1034). It is DOD policy that: a. members of the Armed Forces shall be free to make a protected communication; b. no person shall restrict a member of the Armed Forces from making lawful communications to a Member of Congress or an IG; c. members of the Armed Forces shall be free from reprisal for making or preparing to protected communication; and d. no person may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a protected communication. 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 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. The applicant states: a. The record is unjust because it does not follow current Army guidance and represents a mistake of law. The desired outcome is to ensure the DAIG ROI is not used as the basis for adverse action to hinder future promotion or command opportunities in accordance with Army Regulation 20-1, paragraph 3-3. b. The allegations against her, referred to the DAIG as a result of a DODIG Hotline complaint, were not presented to her command for investigation or resolution as in the current policy in accordance with Army Directive 2018-10, paragraph 2a. Key and essential members throughout her chain of command were not interviewed by the investigating officer (IO). c. The investigation findings represent a mistake of law. The IO concluded that she should have been aware of a perception of favoritism or partiality and taken appropriate corrective action in accordance with Army Regulation 600-20, paragraph 4-14. The IO's conclusions were flawed for two reasons. First, she did not have the occasion to address any negative perceptions because the allegations were made after she relinquished command in 2009. Second, the derogatory allegations were not supported by any evidence. 3. The applicant's Official Military Personnel File does not contain the DAIG ROI. 4. Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Orders 032-311, dated 1 February 2008, reassigned and deployed her to Afghanistan in support of Operation Enduring Freedom 07-09 for a period of up to 456 days effective on or about 20 March 2008. 5. On 22 September 2008, a CID ROI was published which shows an investigation was initiated on 3 September 2008 based upon an allegation or preliminary investigation of cruelty, maltreatment, and assault in relation to detainee abuse which occurred on or about 25 August 2008 to on or about 27 August 2008. The ROI identified CPT among its 10 subjects. The CID ROI states: a. A witness saw 1SG choke and strike one detainee with his fists during an interrogation. 1SG moved to another detainee and began the interrogation, followed by striking the detainee. 1SG then asked the detainee if he wanted to end up like his other friends. He then pushed the detainee to the other Soldiers present, who also struck and kicked the detainee and drug him outside. b. CPT followed the group with the detainees outside. CPT brandished his pistol and shot next to the detainee and the detainee remained outside. CPT went back into the shop. No information was developed during interrogation and the detainees were told they would be brought outside the shop and killed one by one. Witnesses reported a total of four detainees were removed from the shop and a round was discharged after each detainee was taken outside. The detainees were later released into the custody of the Afghan National Defense Service. 6. Her OER covering the period 20 June 2008 through 16 June 2009 shows her principle duty title as Forward Support Company Commander. a. In Part Va (Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), her rater rated her performance as "Outstanding Performance, Must Promote." In Part Vc, her rater commented: "Send immediately to Captains Career Course and then follow on with a combat unit; absolutely must promote BZ [below the zone] to MAJ and given the hardest of assignments. Unlimited potential." b. In Part VIIa (Rated Officer's Promotion Potential to the Next Higher Grade), her senior rater rated her as "Best Qualified" among the 30 officers he rates in the same grade. In Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), there was no box checked. c. In Part VIIc (Comments on Performance/Potential), her senior rater commented: "Continued stellar combat performance; [Applicant] ranks in the top 2 of 6 Forward Support Company Commanders in the BCT [brigade combat team] and in the top 10% of all the CPTs I have served with in over 24 years. A superb commander whose decisive leadership was imperative to the sustainment of our Soldiers in the harsh Afghanistan environment. [Applicant] is a confident, competent leader who already possesses the leadership skills and maturity of a field grade officer. A must select BZ [below the zone] to MAJ followed by ILE [intermediate level education] attendance. She will excel as a BSB [brigade support battalion] SBP [support operations officer] and has strong battalion command potential." 7. On 26 August 2010, the DOD Hotline Completion Report (Revised) (redacted) shows this case was referred by the DAIG to the U.S. Army Forces Command (FORSCOM) IG on 15 April 2010. The FORSCOM IG conducted a preliminary analysis of the complaint and determined there were allegations of misconduct against (name redacted), the applicant, and (name redacted). Due to the nature of the allegations against (name redacted), the applicant, and (name redacted), they were identified as suspects. The FORSCOM IG conducted an IG investigative inquiry. The largely redacted, 69-page report states: a. The complainant testified he had trouble receiving supplies that were requested in a timely manner or not receiving the supplies requested. His commander complained to the battalion staff, but nothing was done to address and correct this issue. This led him and others in his company to believe that (name redacted) and the applicant had something going on between them. b. The complainant testified that while at Forward Operating Base (FOB) Ghanzi, he began seeing and hearing more things which would lend credence to the rumors and innuendo. c. The complainant testified that he would be working late at FOB Ghanzi and on three or four occasions he saw the applicant leave the building where (name redacted's) quarters were located at approximately 2300 hours or later. He testified when he saw (name redacted) and the applicant together, it seemed like she had leverage over him from the way they talked and interacted. d. The complainant testified the entire battalion knew or had the perception that (name redacted) and the applicant were having a sexual relationship. He would hear Soldiers, noncommissioned officers (NCOs), and officers talking about it, but it was more like "chow hall" talk or gossip. e. (Name redacted) testified that there was widespread perception amongst the officers and senior NCOs in the battalion, about 15-20 people, regarding the relationship between (name redacted) and the applicant. The rumors about (name redacted) and the applicant sleeping together made it back to the States, specifically to (name redacted) and she cut him off from sex. f. The applicant testified she was unaware of any rumors or innuendo regarding her having a sexual relationship with (name redacted). The applicant testified she did not act any differently when it was she and (name redacted) alone than when (name redacted) was standing next to her. g. (Name redacted) testified that he was unaware of any rumors or innuendo regarding him having a sexual or otherwise inappropriate relationship with the applicant. h. All of the witnesses except two witnesses heard rumors that (name redacted) and the applicant were involved in a sexual or otherwise sexual relationship. (Name redacted) and the applicant denied they heard any rumors or innuendo regarding them having a sexual or otherwise inappropriate relationship while deployed. i. A preponderance of credible evidence reflects that there were numerous rumors regarding sexual or otherwise inappropriate relationship between (name redacted) and the applicant and these rumors led to a perception that they were in fact involved in inappropriate relations. It is not plausible that (name redacted) and the applicant were not aware of the rumors. j. The allegation that the applicant participated in an inappropriate relationship with a senior Army officer in violation of Army Regulation 600-20, paragraph 4-14, was substantiated. k. The allegation that the applicant participated in an inappropriate relationship with a senior Army officer in violation of Article 92 (Failure to Obey an Order or Regulation) of the Uniform Code of Military Justice (UCMJ) was substantiated. 8. On 14 February 2011, provided a witness statement regarding. He stated he had known since 2007. He further stated: a. As the battalion operations officer, he lived next to while deployed and probably spent more time in and around him than any person in the battalion. always made unbiased decisions and treated everyone fairly. He found it extremely difficult to believe someone would bring up on allegations of inappropriate behavior and, given his close interactions with him, not contacted him as part of the original investigation. b. The only officer who had an issue with was the battalion executive officer (XO). was notorious for criticizing his superiors and treated many of his subordinates with disdain. He knew MAJ was upset when he was counseled by LTC that he would most likely not command a battalion. If there were negative rumors spread about, he is almost certain they originated from MAJ and those who he most interacted with, including the Headquarters and Headquarters Company 1SG. 9. On 5 May 2011, MAJ provided a witness statement regarding. He stated LTC is the finest leader he has encountered in his 39 months of combat and 10 years of service in three brigades. He further stated: a. LTC ability to mentor and develop subordinates was only limited by the inability of those subordinates to be led. Those officers and NCOs who refused to be mentored suffered through their own choices by backbiting and their underhanded comments about LTC.was the principal officer to badmouth LTC on countless occasions. b. The staff climate toward the female company commander was not initially the best. She was the first female who many had ever worked with in a senior leadership position in the battalion. She was one of the best officers in the battalion, and she pulled more than her share of weight and learned to think like an infantryman. She wished to be on patrol and move supplies from one location to another. The female commander, along with two male commanders and the battalion S-2, have all been selected for promotion to MAJ below the zone. This does not happen in formations where favoritism is shown to one person, regardless of gender. c. MAJ is an acidic officer. At nearly every opportunity, MAJ would attempt to control the climate of the battalion by taking to the radio while a platoon was in contact and attempt to maneuver the battalion's attached shadow platoon and its platform. 10. The applicant's OER covering the period 20 June 2009 through 18 May 2011 shows her principle duty title as Company Commander. a. In Part Va (Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), her rater rated her performance as "Outstanding Performance, Must Promote." In Part Vc, her rater commented: "Unlimited potential. Already selected for Major; strong battalion command potential." b. In Part VIIa (Rated Officer's Promotion Potential to the Next Higher Grade), her senior rater rated her as "Best Qualified" among the seven officers he rates in the same grade. In Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), there was no box checked. c. In Part VIIc (Comments on Performance/Potential), her senior rater commented: "[Applicant's] performance is in the top 2 of all company commanders I senior rate. Her leadership, logistical experience, and initiative ensured the success of multiple JTF-Bravo [Joint Task Force-Bravo] missions. [Applicant] planned and led all tactical convoys for JTF-Bravo in support of CNT [Counter-Narco Terrorism] and Medical Civic Action missions. [Applicant] is the leader routinely called on to plan and execute the toughest missions. Select for advanced civil schooling. Already selected for promotion to major, promote ahead of peers to lieutenant colonel. [Applicant] is a must select for battalion command." 11. On 23 May 2011, COL provided a witness statement regarding . He stated he had known LTC since 2007. He further stated: a. The friction between LTC and his XO, MAJ and later his command sergeant major (CSM), was well known to the command. LTC requested MAJ removal on numerous occasions, but circumstances necessitated moving MAJ to take over as the officer in charge for Wardak Province, where he still worked for LTC. b. While in Afghanistan, LTC, , and he were all investigated as a result of an IG complaint lodged by 1LT, the former XO. 1LT made outlandish allegations against LTC, none of which were substantiated. He is confident that if 1LT had any inclination whatsoever that LTC had engaged in some sort of sordid affair, he would have jumped at the chance to make such an allegation, but he did not. 12. On 23 May 2011, provided a witness statement regarding LTC. He stated he was around LTC every day for upwards of 18 hours and considered himself one of his closest staff members. There was no way, given the close nature of their work, that LTC could have been doing anything without him knowing about it. He is even more surprised, given his position and the amount of time he was around LTC that investigators did not contact him. Since he was around LTC every day of the deployment, he saw how LTC interacted with the applicant. He knew the applicant for several years and deployed with her before they deployed to Afghanistan. LTC was close with all his officers, and in particular his company commander. To his knowledge, none of them felt there was any favoritism in their unit. 13. On 3 June 2011, MSG provided a witness statement regarding LTC. He worked along LTC and stated he never once witnessed any favoritism toward any one leader. He further stated that on occasion, his company (minus) would be called to FOB Ghazi to take part in battalion missions. Upon arrival, he would check in with CSM and 1SG. On more than one occasion, he would enter to find them having a gossip session about Soldiers' wives, the brigade commander, the brigade CSM, or LTC. He witnessed these two being consistently negative about the chain of command. Other than that, he never heard any rumors, nor would he believe that LTC would conduct himself in a way that would lead to the perception of inappropriate behavior on his part. 14. On 23 December 2011, CPT provided a witness statement regarding LTC. He was one of LTC rifle company commanders for 24 months. He is highly disappointed in the conduct of those officers behind the allegations against LTC and the flagrant lies associated with them. He further stated: a. LTC harbored a clear and misguided hatred toward LTC while serving as his battalion XO that affected his ability to perform his duties effectively. Although it was clear that such a sentiment was unfounded, he suspects it was a result of LTC refusal to rate LTC as tops amongst his peers. b. In addition, CPT with whom LTC had an established relationship during his tenure as battalion XO, harbored the same inane sentiment toward LTC due cause. CPT blamed LTC for his removal from his position and his chain of command's removal as a result of allegations of detainee abuse rather than assuming responsibility. Nearly 3 years later, CPT maintains this sentiment and inexplicable disdain towards LTC c. During a conversation with CPT it became clear that CPT a desire for punitive action to be taken against LTC making such statements as "he'll get what's coming to him for what happened in Delta Company." 15. Her OER covering the period 19 May 2011 through 20 January 2015 (extended annual) shows her principle duty title as Petroleum Officer. a. In Part IVe (Officer's Overall Performance is Rated), her rater rated her overall performance compared to others of the same grade whom the rater has rated in her career as "Excels." b. In Part VIa (Potential Compared with Officers Senior Rated in Same Grade), her senior rater rated her as "Most Qualified." c. In Part VIc (Comments on Potential), her senior rater commented: "[Applicant] is the top 1 of 8 exceptional MAJs that I senior rate and ranks in the top 5% of all officers I've rated in 26 years. Her superior theater support and proven excellence mark her as one of our Army's top sustainment leaders. [Applicant] is the consummate professional, strategic leader, and ultimate warrior-logistician our future Army requires. A superstar with character and vision, a must select BZ [below the zone] to LTC and battalion command of a BSB [brigade support battalion]. Unlimited potential. [Applicant's] career is just beginning." 16. Her OER covering the period 21 January 2015 through 30 June 2016 shows her principle duty title as Battalion XO. a. In Part IVe (Officer's Overall Performance is Rated), her rater rated her overall performance as "Excels" compared to others of the same grade whom the rater has rated in his career. b. In Part VIa (Potential Compared with Officers Senior Rated in Same Grade), her senior rater rated her as "Most Qualified." c. In Part VIc (Comments on Potential), her senior rater commented: "Promote now to LTC! [Applicant] is the #1 officer in the brigade. Already performing at the LTC level, her ability to operationalize the sustainment plan and set the JOA [joint operations area] resulted in increased operational reach and nested efforts for our multinational and multicomponent formations speaking volumes of her unlimited potential and strategic depth. Select for the most challenging operational sustainment Battalion Command now and send to SSC [senior service college]; a future brigade commander." 17. Her OER covering the period 1 July 2016 through 23 May 2017 shows her principle duty title as Support Operations Officer. a. In Part IVe (Officer's Overall Performance is Rated), her rater rated her overall performance as "Excels" compared to others of the same grade whom the rater has rated in his career. b. In Part VIa (Potential Compared with Officers Senior Rated in Same Grade), her senior rater rated her as "Most Qualified." c. In Part VIc (Comments on Potential), her senior rater commented: "Promote now to LTC! [Applicant] is my #1 officer the number one sustainment MAJ in Europe. Outperforming LTCs in the command, her ability to set the JOA [joint operations area] and support three COCOMs [combatant commands] resulted in increased operational reach and nested efforts for our multinational, multicomponent, and contracted formations speaking volumes of her unlimited potential and strategic depth. Select now for the most challenging operational sustainment battalions and SSC [senior service college]. A future brigade commander!" 18. Army Directive 2018-01, dated 26 January 2018, changes regulatory policy for IGs regarding procedures for investigating issues or allegations present to IGs and for closing cases in the IGARS database. This directive rescinds Army Regulation 20-1, paragraph 7-3. This directive does not apply to investigations pursuant to The Military Whistleblower Protection Action (Title 10, U.S. Code, section 1034). 19. On 19 July 2018, 1SG provided a character statement regarding the applicant's retention on the Fiscal Year 2018 (FY 18) LTC Promotion List. He served with the applicant from June 2007 to April 2009. The applicant was completely dedicated to the mission, frequently conducting battlefield circulation to both check on Soldiers' quality of care and to ensure supported units were satisfied with their level of support. Her commitment to subordinates and supported units was unlike any he had ever seen before or since. 20. On 20 July 2018, LTC provided a character statement regarding the applicant's retention on the FY 18 LTC Promotion List. He offered his highest endorsement for the applicant's promotion to LTC. He observed her leadership, both in combat and at home station. She is an officer of character, competence, and commitment. No other officer incurred as much risk or worked as hard to ensure that every unit in the battalion had every resource to succeed. She remains a respected peer and he would proudly serve with her again. 21. On 22 July 2018, MAJ provided a character statement regarding the applicant's retention on the FY 18 LTC Promotion List. He served under her command from October 2007 to August 2009 and she continues to be a mentor to this day. The applicant struck the right balance between leading from the front and allowing her subordinates the latitude to lead their formations. He witnessed her always setting the example for others to follow. As a female officer and commander, the applicant did very well in a highly competitive infantry-centric unit based on her own merit. 22. On 24 July 2018, MG provided a character statement regarding the applicant's retention on the FY 18 LTC Promotion List. He offered his strongest support of the applicant and unwaveringly attested to her strength and quality of character. He hand- picked her to command a forward support company attached to one of the infantry battalions. To his knowledge, she was the first female in the division to do so and she did it in combat in Afghanistan. In that time, he witnessed high performance, unyielding work ethic, and dedication and commitment to the Soldiers and Families in her unit. 23. On 28 July 2018, the applicant submitted a memorandum, subject: Rebuttal to DOD Hotline Completion Report, to the President of the Promotion Review Board in which she requested retention on the FY 18 LTC Promotion List. She did not understand, nor was she advised, that she was the subject of an investigation regarding allegations against LTC. She had no idea until she received the report in 2018 in coordination with the Promotion Review Board. 24. On 29 July 2018, COL provided a character statement regarding the applicant's retention on the FY 18 LTC Promotion List. He served with the applicant from 2007- 2009. Though she was a very junior CPT, she had developed into the number 1 sustainment company commander in the brigade. The Army would be at a loss if the applicant were not promoted to LTC and remained competitive for command at all levels. 25. On 9 August 2018, through the applicant's counsel, the applicant submitted a Promotion Review Board rebuttal to her notification of Delay of Promotion and Referral to a Promotion Review Board for the FY 18 Active Component, LTC, Force Sustainment Promotion Selection Board. She felt she was mentally, physically, morally, and professionally qualified to perform the duties of the grade for which she was selected and likewise met the requirements under Title 10, U.S. Code, section 3583 (Requirement of Exemplary Conduct), related to exemplary conduct. The rebuttal further stated: a. The derogatory information consists of a substantiated finding in the IG database referring to a 2010 IG investigation that originated from a DOD Hotline Completion Report (Revised) wherein allegations regarding the appearance of inappropriate relationships with female subordinates were substantiated against LTC, then commander of the 1st Battalion, 506th Infantry Regiment. Her only involvement in the investigation was ancillary in nature. She was collateral damage related to an attempt on the part of a finite group of individuals to tarnish LTC reputation in retaliation to actions he took to end detainee abuses. b. In April 2008, LTC commanded the battalion's deployment to Afghanistan. In early August 2008, a catastrophic kill of a Delta Company vehicle occurred in the Province of Wardak. A 1LT and a gunner were killed in action and several other individuals were injured. In response to the incident, various rumors circulated regarding Delta Company Soldiers routinely abusing Afghans in the FOB. At LTC insistence, a complete investigation was ordered. Army CID and military police investigators substantiated several incidents of Afghan abuse on the part of Delta Company. c. The investigation revealed that Delta Company Soldiers, to include its company commander and 1SG, abused detainees by conducting mock executions in an attempt to extract information pertaining to the improvised explosive device attack on the Delta Company vehicle. Ultimately, one member was tried by court-martial and the company commander was relieved and resigned his commission in lieu of trial by court-martial. As a result of the investigation and the after action, there was significant animosity against LTC d. In late January/early February 2009, the first of several complaints were lodged against LTC. The complaint lodged by CPT then Delta Company XO, involved several baseless accusations and was ultimately determined to be unsubstantiated. e. Two additional investigations, both believed to be brought by CPT, followed. Based upon the tenor of the complaints; open derogatory remarks, as substantiated by eyewitness accounts; and the incredible nature of the allegations involved, it was clear that LTC was the target of an attempted character assassination brought about by his intervention in allegations of detainee abuses and the ultimate removal of 10 Delta Company Soldiers. f. In March 2010, nearly 2 years after the events in question, the third investigation was initiated. This investigation was conducted by a DA civilian and a sergeant first class. The hotline complaint involved allegations that LTC and, by implication, the applicant allowed a perception of inappropriate relationships to be perpetuated and failed to take action to correct this perception. Although there was zero evidence to support the allegation, the investigation was, nonetheless, determined to be partly substantiated. g. The investigative findings were based upon the limited testimony of four individuals, all of whom held significant ill-will towards LTC for launching the initial CID investigation that resulted in removal and UCMJ action. h. The investigator reached a conclusion that there existed the "perception" of an inappropriate relationship between LTC and the applicant (among others) and further that failure to address that perception was in violation of Army Regulation 600-20. This position was reached in spite of the fact that no one from the applicant's chain of command was ever interviewed. i. The investigation forming the basis of the derogatory information, as well as the substantiated findings, represents an error off act, law, and discretion and, as such, any investigative findings related to this incident should be disregarded in their entirety. A preliminary inquiry is a procedure used to ascertain the seriousness of a particular issue. Likewise, in the investigative process leading to substantiated findings, the approval authority should consider only the evidence that is relevant to the matter under investigation. j. The investigation in question resulted from the complaint of an individual, CPT with a substantial animosity and ire toward the individual investigated. Likewise, it is the third investigation initiated by CPT, as the two previous investigations were found to be unsubstantiated. k. The evidence relied upon by the IO is similarly questionable. The entire allegation was substantiated based solely upon the statements of four interested parties: . All of these individuals openly expressed disdain for on a regular basis. The IO failed to interview anyone within the applicant's chain of command regarding these allegations. This is significant since the allegation pertains directly to perceptions within the command structure. Despite this, the IO failed to interview those individuals in the best position to speak to such allegations. Thus, there can be no doubt that the evidence relied upon to reach the substantiated conclusions consisted of nothing more than a limited number of interested witnesses and utterly failed to demonstrate any sort of balanced or neutral investigative approach. l. Based upon the above, the 2010 substantiated finding is amorphous and speculative at best. It offers no insight into the actions of the applicant during that period of time and, in fact, is nothing more than the reflections of an individual who was angry for the disciplinary action meted out against members of his unit. m. To call this allegation substantiated requires one to take an investigative "leap of faith." The investigative conclusion was based entirely upon the statements of interested parties. The investigator failed to conduct any interviews with those parties in the best possible position to observe the interactions in the unit. The applicant was not even aware that she was a subject of the investigation until its re-discovery in 2018 and, perhaps even more troubling, she was never provided any opportunity to rebut the baseless, unsupported allegations. n. The isolated, arbitrary, and capricious nature of the investigation combined with the applicant's extremely limited involvement makes this incident of alleged adverse conduct extremely minimally probative in assessing her appropriateness for promotion to O-5. 26. Her Officer Record Brief, dated 1 October 2018, shows a complete overview of the applicant's military service, to include overseas/deployment/combat duty, military education, and assignment information. 27. On 2 October 2018, the applicant submitted a memorandum, subject: Request for Reconsideration of IG Findings, to TIG requesting to delete or alter the allegation determination of the IG ROI for the desired outcome that the CID ROI could no longer hinder promotion or command opportunities. 28. On 11 December 2018, the Secretary of the Army retained the applicant on the FY 18 LTC, Army Competitive Category Promotion List, effective immediately. 29. Headquarters, U.S. Army Human Resources Command, Order Number 143-014, dated 23 May 2019, promoted her to LTC with an effective date and date of rank of 1 June 2019. 30. On 14 August 2019, TIG responded to her request for reconsideration of the allegation against her. a. The inquiry into the case determined there was insufficient evidence to change the IG findings. b. The allegation that she engaged in an adulterous relationship with a senior Army officer in violation of Article 134 (Adultery), UCMJ, was not substantiated and should remain not substantiated in the IGARS database. c. The allegation that she participated in an inappropriate relationship with a senior Army officer in violation of Army Regulation 600-200, paragraph 4-14, was substantiated and should remain substantiated in the IGAR database. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is warranted. 2. The Board considered the applicant’s statement, the allegation of an inappropriate relationship lodged against her and two others, the events in the battalion that preceded the allegation, the statements of support from several field grade officers, and her ongoing record of excellent performance. The Board gave greater weight to the depiction of the battalion’s climate provided in the supporting statements than to the conclusion reached in the DOD Hotline Completion Report (Revised), dated 26 August 2010. Based on a preponderance of evidence, the Board determined the IGAR database should be corrected to show the allegation that she participated in an inappropriate relationship with a senior Army officer in violation of Army Regulation 600-200, paragraph 4-14, was not substantiated. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by updating the Inspector General Action Request System to show the allegation that she participated in an inappropriate relationship with a senior Army officer in violation of Army Regulation 600-200, paragraph 4-14, was not substantiated. 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. //NOTHING FOLLOWS//