DEPARTMENT OF THE ARMY OFFICE OF THE VICE CHIEF OF STAFF 201 ARMY PENTAGON WASHINGTON DC 20310-201 [16 FEB 2015 MEMORANDUM FOR Lieutenant General Herbert R. McMaster, Jr. Deputy Commanding General (DCG), Futures/Director, Army Capabilities Integration Center, U.S. Army Training and Doctrine Command, Building 950 Jefferson Avenue, Joint Base Langley-Eustis, Virginia 23604 SUBJECT: Memorandum of Concern 1. On 15 December 2014, US. Army Inspector General Agency (DAIG) Report of Investigation (ROI) No. 14?039 substantiated an allegation that, while serving as the Commanding General, US. Army Maneuver Center of Excellence and Fort Benning, you directed a favorable personnel action for two of?cers in an unfavorable status without obtaining a waiver from the Deputy Chief of Staff (DCS), G-3l5/7, in violation of Army Regulation (AR) 600-8?2, paragraph 3-1f. 2. DAIG ROI No. 14039 determined that you permitted two of?cers to attend Ranger School in January 2014, despite knowing they were pending disposition of sexual assault allegations. AR 600-8-2, paragraph 3?1f, prohibits SOldiers in an unfavorable status from attending military schools unless the DCS, grants a waiver. concluded that you were unaware of this requirement and did not knowingly violate the regulation. 3. As a senior leader in the United States Army, you are expected and required to understand and comply with all laws and regulations. Suspending favorable personnel actions for Soldiers pending resolution of sexual assault allegations protects the Soldier. the command, and the Army. I understand you were unaware of the ability to request a waiver in this case, and that you did not want to delay the of?cers? training. I also recognize that you ultimately decided to take no action against the of?cers after carefully considering the evidence. However, professional judgments may not supplant Army policy under any circumstances. I am disappointed with your actions. 4. I am not of?cially reprimanding you for your conduct. However, expect you to re?ect upon your actions, and to ensure that your future conduct conforms to the high standards expected of senior leaders in the United States Army. This memorandum will not be filed in your personnel records. I consider this matter closed. :3kg 7 DQNIELB.AL GeneraL United States Army Vice Chief of Staff LTG- MCMASTER DEPARTMENT OF THE ARHY . ornce or?: mu mm mm maturation coma-1m US ARMY INSPECTOR GENERAL AGENCY REPORT OF INVESTIGATION (Case 14-039) DEC -1 5 7016 NAME I POSITION: Lieutenant General (LTG) Herbert R. McMaster. Deputy Commanding General (CG), Futures/Director, Army Capabilities Integration Center, tinned States Army Training and Doctrine Command, Joint Base Langley-Eustis, [Investigating Of?cer (l0) Note: LTG McMaster was formerly CG, United States Army Maneuver Center of Excellence and Fort Benning, Georgia (GA), during June 2012 to July 2014.] I FINDING: The allegation that LTG McMaster failed to follow Army Regulation (AR) 600-8-2 (Suspension of Favorable Personnel Actions) (Flag) was - substantiated. BACKGROUND: 1. On 31 July 2014, the Department of the Army Inspector General (DAIG) Agency received a referral from the Of?ce of the Chief Legislative Liaison. The referral re?ected Congressionalconcern that two of?cers titled in the United States Military Academy (USMA) sexual assault investigation were allowed to attend Ranger School when they should have been ?agged. Our initial review determined that LTG McMaster, former CG, may have failed to follow the regulation regarding disposition of their flags and their attendance at Ranger School. 2. On 17 September 2014, The inspector General directed an investigation by DAIG. STANDARD: AR 600-8-2 (Suspension of Favorable Personnel Actions) (Flag). 23 October 2012, paragraph 3-1 states: a. A properly imposed ?ag prohibits the following personnel actions unless otherwise speci?ed in this regulation. Paragraph 3-1f, lists: Attendance at military or civilian schools. The waiver authority is the Deputy Chief of Staff (DOS), For of?cers, military schools include the Of?cer Education System course. functional area and skill specialty training courses. Basic of?cer leader courses are not included. b. Paragraph 2-9b(10) Removal of Flag. law enforcement investigation, states, remove when the completed Department of the Army (DA) Form 4833, Commander's (CDRs) Report of Disciplinary Action or Administrative Action. is submitted to the FOR OFFICIAL USE ONLY. DISSEMINATIDN I8 PROHIBITED EXCEPT AS AUTHORIZED 81?! 20-1. SAIG-IN (ROI 14-039) Provost Marshall or United States Army Crlminal Investigation Command (CID) in accordance with AR 190-45 (Law Enforcement Reporting). DOCUMENTS I TESTIMONY: 1. DAIG's Timeline of Events re?ected: a. On 27 June 2013. the Secretary of the Army directed DAIG to investigate the handling of an incident involving the USMA Rugby Team. The case involved the Rugby Team circutating inappropriate emails, the administration's response and its handling of disciplinary actions. The results of the investigation are addressed in ROI 13-025. During the Rugby Team investigation. I?m? 3? (We) I ?accused We) WW6) land I?bi?e? 5' (mime) 4i of sexual assault that allegedly occurred while they were cadets at USMA. DAIG referred the allegations to CID and on 16 July 2013, CID initiated a criminal investigation. b. On 25 May land ?b?lgraduated from USMA. In July 2013 they proceeded to Fort Benning. GA to attend the infantry of?cer basic leadership course (IBOLC). CID apprehended the -t Fort Benningr GA. c. On 24 July 2013, the CDR, Headquarters and Head ouarters . (HHC), 2?11th Infantry. 199th Infantry Brigade (BDEL agger*and ?under ?law enforcement investigation.? code M. 5511?? 3? and 53355154?) attended IBOLC from 5 August to 27 November 2013. [Investigating Officer (IO) Note: and I?g?fcla? lcould attend while ?agged. because their basic of?cer eader course was not a prohibited personnel action under AR 600-82] d. On 4 November 2013. the BDE trial counsel opined probable cause that both 2LTs committed ?Abusive Sexual Contact," in violation of Article 120. Uniformed Code of Military Justice (UCMJ). e. On 25 November 2013, the CDR, Company. 2-11tI1 IN, removed? and law enforcement ?ags. [l0 Note: According to AR 600-8-2, law enforcement investigation ?ags can only be removed when the command submits DA Form 4833. Commander's Report of Disciplinary or Administrative Action, to CID, not at the conclusion of the Oil) investigation] FOR OFFICIAL USE ONLY. DISSEMINATI IS PROHIBITED EXCEPT AS AUTHORIZED BY 20-1. 2 (ROI 14-039) f. On 2 December 2013, CID published its Final Investigative Report. Their investigation established robebie cause to believe IWitt (Wife) land ?gran I sexually assaulted (W5) 3? when on several occasions. they groped I?m) 8* (WW Ibreasts, buttocks and inner thighs. CID referred the report to the Special Court Martial Convening Authority. Colonel (COL) CDR, 199th IN BDE. Fort Benning, GA. for completion of the report of disciplinary or administrative action. 9. On 17 December 2013, the HHC CDR ?agged _and -under ?commander?s investigation," code L. [to Note: A flag imposed for ?commander's investigation? would indicate a CDR directed investigation that could result in disciplinary action, such as pursuant to an AR 15-6 investigation. There was no evidence of any commander?s investigation involving the h. On 5 January 2014. without any prosecutorial decision. -started Ranger School at Fort Benning, GA, despite being ?agged. Ranger class, 003. was scheduled to train from 6 January 2014 to 7 March 2014. ?was unable to attend the January class because it was full. On 3 February 2014, _started Ranger School. Raner Class 004, was scheduled to train from 3 February 2014 to 4 April 2014. was recycled from the January class into the February class due to non-injury reasons. As a result, both-graduated from Ranger Sdtool on 4 April 2014. Note: According to AR 600-8?2, the 2LTs were prohibited from attending Ranger School, while ?agged. unless the 008 6-3/5? approved a waiver. The command did not submit a waiver request] i. On 14 January 2014, the HHC CDR removed 3? land {$51355} 3? commander?s investigation ?ags. . j. On or about 15 January 2014, the trial counsel formally recommended against prosecution. On 23 January 2014.the special victim prosecutor concurred with the trial counsel?s recommendation. . 3 February 2014, LTG McMaster signed GOMORs for?and The GOMORs were not served because the -would not have been able to respond while in Ranger School. In addition. during 6 - 7 Febma 2014 the command at Fort Rucker. Alabama held an Article 32(b) hearth form?ormer USMA cadet) in which We} 3? accused ?525 of sexual assautt. Testimony given at the hearing revious statements regarding sexual assault. The Article 32 to found that?had no credibility. FOR OFFICIAL USE ONLY. DISSEHINATI IS PROHIBITED EXCEPT AS AUTHORIZED BY 20-1. 3 (ROI 14-039) l. On 4 April 2014. till) a land till?" (bl lwere served with e' one immediately after Ranger School graduation. On 23 April 201 digit? 4? mm land attome orovided rebuttals to LTG McMaster. The rebuttals re?ected that ?3 (?Jill and categorically denied wrongdoing and referenced the Article 32 hearing. The Article 32 I0 and convening authority found not credible. and the convening authority dismissed all charges agains Note: Initiating GOMORs required an additional ?ag for "adverse action." code A. According to AR 600-8?2, the effective date of the ?ag is the date the offense occurred. leading to GOMOR. No such ?ags were initiated on the-J i. 0n 9 May 2014. after reviewing rebuttal materials, LTG McMester determined the alleged misconduct did not occur as reported. He signed the ?ling determination for EMS) 3? (le landl?f?. land directed that the GOMORs be withdrawn and destroyed. one and 25 June 2014, COLW signed the Reports of Disciplinary Action (DA 4833), indiwting ?nal disposition on Twin) 6 {mil?W land respectively. [l0 Note: According to AR 600-8-2? the law enforcement ?ags should have been removed on 23 and 25 June 2014.} 2. COL- Staff Judge Advocate (SJA), Fort Benning, GA, testi?ed: a. Flagging actions were not completed at the LTG McMaster's level. COL- was not aware that the law enforcement flags were erroneously removed on 25 November 2013. b. COL as not involved in the discussion between LTG McMaster and the COL regarding sendin the to Ranger School. COL_told him that as a result of COL lib?? 3? (?Wei Idisarssion with LTG McMaster LTG McMaster decided to allow the two of?cers to attend Ranger School. COL related that they felt disallowing them at that point was ?tantamount to punishing them." He only got involved at the time LTG McMaster signed the GOMORs around 3 Februa 2014. When COLIEEll?lfii Ibecame aware the twa of?cers were in Ranger School mils) (W5) FOR OFFICIAL USE ONLY. DISSEMINATIO IS PROHIBITED EXCEPT AS AUTHORIZED BY A 20-1. 4 (no: 14-039) (W5) 3. cor. esti?ed: a. He believed the law enforcement ?ags were done ?automatically? in that the HHC received information about the-being investigated by cm. He did 'not direct the flagging action. Flagging actions were routinely completed at the company ievel. He felt the Company CDR removed the ?ags likely based on the fact the company received information that the CID investigation was complete. b. He spoke to LTG McMaster in the December 2013 timeframe at a social event; he asked whether they should hold the or send them to the course {Ranger School). LTG McMaster decided to send them to the course. He and LTG McMaster did not want to disadvantage them. They could complete any legal action as the- were in a controlled environment. He did not discuss ?ags or waivers in his meeting with LTG McMaster. COL _was not aware of the waiver requirement in AR 600-8-2. They decided to send both officers to the January 2014 Ranger class. ?was placed in the February class because there were too many of?cers in the January class. c. On or about 23 January 2014, COL -recommended the -receive GOMORs. He attempted to reengae throwh his trial counsel to ensure LTG McMaster still wanted to send its the February 2014 Ram er class. When LTG McMaster signed the GOMORs on 3 February 2014, dwas already in Ranger School. He did discuss the matter to verify LTG McMaster?s intent to let the of?cers attend Ranger School and to serve the GOMORs if they failed or after they graduated. 4. LTG McMaster testi?ed: a. - He became aware of the 2LTs after CID apprehended them at IBOLC. He received a can from CID-that they were under investigation. He assumed they were flagged at that time. He did not know the law enforcement flags were removed on 25 November 2013. - b. After reviewing the C10 report, he felt there was not enough information to make a decision on their disposition. He had discussions with his SJA, COL regarding FOR OFFICIAL USE ONLY. DISSEMINAT IS PROHIBITED EXCEPT AS AUTHORIZED BY 20-1. 5 . (ROI 14?039) the matter and options available. He believed there were other investigations ongoing and prosecutor interviews to gather additional evidence to consider. 0. He did not recall the meeting with when COL?asked about sending the 2LTs to Ranger School. However, LTG McMaster thought it was logical to send them. He felt COL _asked because the 2LTs were under investigation. They did not discuss ?ags or waivers. He felt it he and COL- discussed the matter of sending the two of?cers to Ranger School, he would have operated on the assumption that they would continue with their of?cer education until such time as they had the information necessary to make a decision on their case. d. He had no ?prejudgments? about the 2LTs. He wanted to fully consider the results of the investigations. His thought on IBOLC and Ranger School was that it was a ?package.? The policy at was that an Of?cer should go from their Basic Course into their specialty training, whether it be Ranger or Airborne, or otherwise. At that time. he did not have enough information to decide their diaposition. He felt it would predetermine punishment if he pulled them out of Ranger School. He understood the nature of flagging actions, but ?ags are not meant to be punishment. He did not believe he took similar actions for other of?cers. but if it happened to others. he would have made the same decision. If he knew about the waiver requirement, he would have submitted them. 3. After considering the matter and in discussions with his SJA, there was enough to issue GOMORs, however, he decided in January he would let the investigations run their course and issue the GOMORs with the intent to see what evidence the 2LTs would present. He received no signi?cantfnew information before serving the 2LTs with actress after Ranger School. After the results of the Article 32 been- and based on his review of the evidence he believed the complainant l(b (6 (b lacked credibility. The charges against-were wi?wdrawn due to a lack of corroborating evidence. f. LTG McMaster believed that flags were not meant to be used as punishment. He had the results of the CD investigation. but he did not believe the initial report met the threshold of probable cause. There was an ongoing effort to gather additional evidence. He did not want to prejudge the of?cers. He felt it was important for the o?icers to obtain the technical and tactical pro?ciency needed in their ?elds. He saw their attendance in the Ranger School as a package and believed that they should continue their of?cer education until such time as they had the necessary information to make a decision on the disposition of their cases. AS AUTHORIZED BY 20-1. FOR OFFICIAL USE ONLY. IS PROHIBITED EXCEPT 6 (ac: 14-039) ANALYSIS I DISCUSSION: 1. The evidence established that LTG McMaster failed to comply with AR 600-8-2 because he directed a favorable personnel action without requesting a waiver from the DCS, 6-315?, when he knew the were pending disposition of a sexual assault allegation, an unfavorable status. The investigation established that the-were in an unfavorable status from the start of the CID investigation, 16 July 2013, until 23I25 June 2014, when the two CDRs Report of Disci olinary Action were ?led. The evidence established that LTG McMaster knew the are concurrently under investigation, under consideration for court martial, and under consideration for command directed adverse action. There was no evidence LTG McMaster knowingly violated the regulation. 2. LTG McMaster weighed the-circumstances with the facts at hand. He balanced his belief that delaying the of?cers? attendance at Ranger School would impact their careers with his intent that of?cers attend I BOLC and Ranger School as a package. In addition, his decision was based on his desire not to punish the-by taking them out of the Ranger School. in effect, he believed it would prejudge them, given he did not have suf?cient facts to decide their immediate disposition. 3. Evidence indicated that LTG McMaster, his SJA, and the BDE CDR were not aware of the waiver requirements contained in AR 600-8-2. Absent a waiver approved by the 008, AR 600?8-2 prohibited the f-rom attending Ranger School. The company commanders were responsible for the ?agging actions. The system to manage and provide oversight of ?ags was ?awed in that it did not ensure personnel actions with regard to ?ags were tracked, preperly executed and communicated to respective commands within the CONCLUSION: The preponderance of evidence established LTG McMaster improperiy decided to send two of?cers to attend Ranger School without approved waivers. He knew the two of?cers were pending legal action. His decision permitted favorable personnel actions to of?cers in an unfavorable status. FOR OFFICIAL USE ONLY. IS PROHIBITED EXCEPT AS AUTHORIZED BY 20-1. 7 T) (ROI 14-039) OTHER MATTER: Supplement 1, AR 27-10 (Military Justice), contains no guidance that ensures flagging actions are coordinated and with the timing of disciplinary actions and investigations. Evidence indicated Corn . an CDRs in the 1991'1 IN BDE made multiple errors regarding flagging actions on the RECOMMENDATIONS: 1. This report be approved and the case closed. 2. Refer this report to the Of?ce of The Judge Advocate General. 3. Refer the Other Matter issue to the CG, (blt?l 3- (WONG) (bits) Investigator lnvestigitor FOR OFFICIAL USE ONLY. DISSEMINATI IS PROHIBITED EXCEPT AS AUTHORIZED BY 20-1. 8 I I (ROI 14?039) EXHIBIT 0-2: 0-3: 0-4: 0-63 0-7: 0-8: 0-1 D-Z: D-3 E-2: LIST OF EXHIBITS ITEM AuthorityICom plalnt Directive Complaint Legal Reviews Standard AR 600-8-2 (Suspension of Favorable Personnel Actions) (Flag) 23 October 2012 Documents DAIG '?meline of Events DA 2683. Law Enforcement Flags, 24 July 2013, 25 November 2013 DA 2683, Commanders Investigation Flags, 17 December 2013, 14 January 2014 CID Final Report, 2 December 2013 Supplement 1, AR 27-10, 20 August 2014 GOMORs, 3 February 2014, 9 May 2014 Rebuttal Extracts, 23 April 2014 DA 4833s Commander?s Report of Disciplinary/Administrative Action, 23 and 25 June 2014 Noti?cations GEN Perkins LTG McMaster (suspect) FOR OFFICIAL USE ONLY. DISSEMINATIO IS PROHIBITED EXCEPT AS AUTHORIZED BY A 20-1. 9