MILITARY PERSONNEL LAW BLOG
ABCMR Grants Application Challenging Decision by Army CID To Change a ROI From “Unfounded” to “Founded.”
A disgruntled subordinate falsely accused our client of a serious UCMJ offense. CID was notified and the client was promptly “titled” for the allegation after having been lied to by the CID agent. The client’s command investigated and found no evidence to support the allegation. The Army declined to prosecute because of insufficient evidence. The case was closed with no adverse or punitive actions taken.
Well, not exactly. Two years later the officer petitioned CID to remove his name from the subject block of the ROI. CID denied his petition and, without informing him, issued a Supplemental Final ROI changing the allegation from “unfounded” to “founded.” Which is to say, CID concluded there was sufficient evidence to show the client committed the offense. It’s a non-judicial finding of guilt. According to AR 195-2, the “founding” of an allegation is:
"A determination made by law enforcement, in conjunction with the appropriate prosecution or legal representative, that a criminal offense has been committed. The determination that a founded offense exists is a decision independent of any judicial/court finding opinion or disciplinary action taken or not taken."
CID apparently didn’t think it was important enough to tell client, who, four years later, learned about CID’s action only when his well-earned promotion to colonel was delayed and he was referred to a Promotion Review Board. In the process, he learned CID did not even retain or consider several exculpatory witness statements he submitted during the original CID investigation and did not bother to interview those and other reasonably available witnesses.
We raised four claims in the petition to the ABCMR: (1) there was insufficient evidence to support the decision to title; (2) CID engaged in misconduct by using deception to secure the client’s waiver of his rights to silence and legal counsel during interrogation; (3) AR 195-2 did not authorize CID to change the ROI from unfounded to founded; and (4) CID’s decision to do so without notice to the client and an opportunity to respond violated his Fifth Amendment right to due process of law.
The ABCMR denied the petition but failed to address three of the four arguments raised, a very common practice with the ABCMR. We followed up with a memo informing the ABCMR that its conduct was unlawful and ultimately secured partial relief, clearing the client for promotion to colonel.
The level of disrespect toward the client exhibited by CID in this case is appalling and apparently common. If in this case CID believed it had the liberty to respond to a titling amendment request by changing a final ROI to reflect guilt without notice to the affected member, it likely has done so in others.
The Air Force Board for the Correction of Military Records (AFBCMR) has now granted two applications from USAFR officers we represented based on the improper use of sanctuary waivers and MPA active duty tours. In both cases the USAF approved the AFBCMR recommendations that the client’s record be corrected to show that they were not released from active duty orders, but continued to service until retirement eligibility. The decisions require the USAF to credit the officers with very substantial periods of active duty service, with full pay and allowances. Both became eligible to receive Regular USAF retirements, rather than reserve retirements. We thank the AFBCMR for recognizing the legal errors and correcting them.
In both of our cases, the USAFR was trying to “beat the system” and avoid the constraints on the use of reserve officers established by 10 U.S.C. Section 12686. What happened was this: The USAF placed the officers on active duty orders in excess of 179 days and required sanctuary waivers. Well, 10 U.S.C. Section 12686 permitted sanctuary waivers only for orders of less than 180 days. The USAF also amended the active duty orders in both of our cases, authorizing additional active duty service, and requiring additional sanctuary waivers.
The earlier case, AFBCMR No. BC-2011-05004, determined that “The applicant served on active duty orders for two periods longer than 180 days each. Accepting four consecutive six-month waivers from him to cover these periods was inconsistent with the provisions of AFI 36-2131 in effect at the time. ... Further, the applicant’s consecutive waivers were not associated with specific orders to active duty or specific amendments to such orders. ... Thus, the Air Force obtained the benefit of the applicant’s active duty for a period in excess of 179 days after the applicant had entered sanctuary. The government should not profit from those circumstances.” The very recent decision, AFBCMR No. BC-2013-04052, concluded similarly.