Supplemental Brief — Barbee v. United States

Vepieiite UYUEL, U.Y,

Faith Dp

AUG 7 1989

__JOSEPH F. SPANIOL, JR.

OLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOSER TERM 1988

PeTIT LONER

VS

THE UNITED STAT

SUPPLEMENTAL BRIEF TO PETITION FC

WRiT SF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FEDERAL CIRC

Eimer &. Barbee

Attorney, Pro Se

Route 7, Box 345

Manchester, Kentucky 40962

(606) 598-3173 ¢H)

(606) 598-6151 CW)

EDITOR'S NOTE:

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

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COURT OF THE UNITED

OCTOSER TERM 1986

THEE UNITED STATES

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SUPPLEMENTAL BRIEF

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WRIT OF CERTIORARI TO THE UNITED STATES

FOR THE FEDERAL CIRCUIT.

COURT OF APPEALS

FP. Barbee

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Manonester, Kentucky 40962

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Certificate of Service...---+-+-++-4 5

APPENDIX So

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SECRETARIAL REGULATI hS

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Army Res. 20-1

—-

61)

June 1978>

Army Reg. 20- (15 January 1980>

—-

Army Reg. 20-1 (16 September 1{986>

SUPPLEMENTAL BRIEF TO PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FEDERAL CIRCUIT

Petitioner, Elmer R. Barbee

respectfully submits in compliance with

Rule 22.6, this supplemental brief and

presents interviewing materia! that was

net available at the time of

Petitioner’s last filing.

STATEMENTS OF FACTS

On 30 May 1989, COL Marcia

Rinke] of the Office of the

Inspector General, mailed Petitioner

the enclosed letter. (APPENDIX A) On

8 June 1989 (APPENDIX B>, Petitioner

replied to that letter and stated

that the proposed adverse action

that violated AR 20-1 was presented

to Petitioner on 22 February 1980,

therefore, violating the 15 January

1980 version of AR 20-1. Petitioner

vs

respectfully requestec that the Office

of the Inspector Genera! provide a

corrected copy of the 7 March 1989

letter reflecting the appropriate

provisions of AR 20-1, dated 15 January

1980. No response was received.

Upon telephonic fo] low-up,

Petitioner was informed by COL Herbert

Williams, Legal Advisor, Office of the

Inspector Genera! CTIG), that lega!

representatives from. Nationa!) Guard

Bureau, the Department of the Army,

(The Judge Advocate General, TJAG), and

the Department of Justice had met in his

office and that as a result of that

meeting, the 30 May 1989 letter was

prepared. COL Williams stated that al]

future correspondence would_be reviewed

by Major Cathy Cates, TJAG, prior to the

submission of any responses from the

office of the Inspector Genera!.

as

On 18 June 1989, Petitioner

submitted an Inspector General Action

Request <IGAR) and provided documented

evidence that for the past 9 years the

Army National Guard and all other

concerned agencies had considered both

the 15 June 1978 and the 15 January 1980

versions of AR 20-1 as having been

applicable to the Inspector Genera!

Investigation conducted in October and

November 1979 and to the subsequent

adverse action initiated against

Petitioner on 22 February 1980.

(APPENDIX C)

On 27 June 1989, Petitioner again

spoke with COL Herbert Williams, TIG,

and pointed out that on page i of the 15

June 1978 version of AR 20-1, it states

in reference to the use of this

regulation that:

"It provides policies, procedures,

and guidance for conduct of The

36

Inspector General program for: the

Active Army, Army Reserves, and the

Army National Guard. Loca!

supplementation of this regulation

is permitted but is not required.

If supplements are issued, Army

Staff agencies and major Army

Commands wi!] furnish one copy to

HQDA (DAIG-ZX) WASH D.C. 20310;

other commancs wi!! furnish one

copy of each to the next higher

headquarters."

Since COL Rinkel’s letter of 30 May 1989

CAPPENDIX A> stated that no NGB

Publications (Csupplements) existed

between 15 June 1978 and 15 February

1980 as to the applicability of AR 20-1,

then those policies, procedures and

guidlines as issued the National] Guard

by the Secretary of the Army were in

force as presented.

COL Rinkel’s letter of 30 May 1989

also stated that:

"The June 15, 1978 version of AR

20-1 had a provision in paragraph

5-ib which said ’Army regulations

do not apply to the ARNG except

where specifically made applicable

or where made applicable in whole

Or in part by National Guard

regulations or other National Guard

publications.”

This quote was taken out of context in

that CHAPTER 5S of the 15 June 1978

version of AR 20-1 is entitled

"INSPECTOR GENERAL JNSPECTION OF THE

ARMY NATIONAL GUARD AND ARMY RESERVE."

This quote can be found today in

paragraph 6-6c of AR 20-1, dated 16

September 1986, and still only applies

to inspections. Chapter 5S of the 15

June 1978 version of AR 20-1 did not

cover Inspector General Investigations

5.

except under paragraph 5-4hn, Inpsection

Objectives: This paragraph provides

that:

“When conducting general inspections

of ARNG and the USAR, Inspectors

General will determine the overa!|!

state of readiness and training to

include whether --

nh. A procedure has been

established and is being

used to receive, make

inquiry into and respond

to all Inspector Genera!

action requests."

An inspection requirement of The

Inspector General was to assure the ARNG

had a procedure established to respond

to ali IGAR’s. In that no supplemental

changes were submitted to NGB by the

North Carolina Army National Guard, AR

20-1 dated 15 June 1978 was effective as

issued by the Secretary of the Army.

6.

This was the regulation in effect and

utilized by the Nationa! Guard and

Charles R. Neilsen, NCARNG, IG_ who

received Petitioaner’s complaints as

rendered on DA Form i559 (¢See APPENDIX

C>. CHAPTER 4, “INVESTIGATIONS AND

INQUIRIES" covered investigations and in

that chapter there were no exclusions

for the National Guard or Army Reserve.

Both the 1S June 1978 and 15

January 1980 versions of AR 20-1

contained under paragraphs 1-2 and 1-3

respectively, "Statutory Authority,” the

fol lowing:

"Title 32 United States Code,

Section 10S provides for the

Insepction of the Army Nationa!

Guard CARNG) and for conducting

investigations of the ARNG on

matters having Federal! Concern."

The investigation conducted was a matter.

of Federal concern in that all parties

T.

er vata

>

involved were technicians, therefore,

employees of the Department of the Army

and of the United States. Federal]

funds, t ime and facilities were

involved.

In both the 15 June 1978 and 15

January 1980 versions of AR 20-1,

paragraphs i-4c and 1-Se respectively,

"Status of Inspectors Genera!," it

states:

"Officers detailed as Inspectors

General wil! not be appointed as

Investigating officers under

Articles 32 and 138, UCMJ; under AR

1S-6; or under any other regulation

or directive providing for the

appointment of investigating

officers, members of adminstrative

boards, or members of courts-

martial. Inspectors General] wil]

not be given other similar duties

which may subsequently disqualify

8.

<a them from making impartial!

investigations or inquiries into

any function or any aspect of the

activities of the HQDA staff honedy

or command to which they are

assigned."

COL Charles Neilsen was scnool trained

as an Inspector General by the

Department of the Army; he wore the

Inspector Genera! insignia; he was

allowed by regulation to administer

oaths before taking sworn testimony; and

he was detailed an Inspector General by

military TO&E assignment with the

National Guard. Even though other types

of investigations were available for use

by the hnead of the agency, this

Inspector Genera! was chosen to conduct

an Inspectors Genera! Investigation.

COL Charles Neilsen was prohibited by

cegulation from conducting any other

investigation except for an Inspector

General Investigation in accordance with

AR 20-1 dated 15 June 1978.

On i1 July 1989, Petitioner

received from COL Marcia Rinkel!, TIG, a

letter CAPPENDIX D>) dated 5 July 1989.

Telephonic communication with COL

Herbert Williams revealed that this was

the response to Petitioner’s 8 June and

18 June 1989, Inspector Genera] Action

Request. This was to be the only

response renaerec at the advice of Mr.

Jonn S. Groat cf the Department of

Justice. This letter states that no

further substantive response will be

provided, even though INSPECTOR GENERAL

ACTIVITIES AND PROCEDURES dated 16

September 1986 states in paragraph 1-5h

that the "TIG will--

h. Maintain a system under the

law, regulations, and the

requirements of due process,

through which Service members

10.

and others may request aid in

resolving problems related to

the Army, without fear of

compromise, reprisal, or

unnecessary disclosure of

information. Also, the IG

will establish a procedure to

monitor each case until it is

resolved."

CONCLUSIONS

The 1S June 1979 version of AR 20-1

was utilized by the National Guard to

conduct the October-November 1979

Inspector Genera] Investigation as

evidenced in sworn testimony given by

COL Charies R. Neilsen, NCARNG,

Inspector General. (provided in APPENDIX

>

The Office of the Special Counse]

COSC) is the only other agency that has

had access to all the pertinent

information and that has investigated

ae

:

ne

;

_ a a ee Se

all of the events from October. 1979

through Petitioner’s appea! denial by

the Adjutant General in November 1980.

The OSC’s investigation found that the

National Guard had violated both the

CSRA of 1978 and AR 20-1. In 1984, the

OSC charged Petitioner’s technician

supervisor with a prohibited personne]

action; Denial of Appeal Rights

(Reprisal Action)». COL Rinkel’s 7 March

1989 letter explaining the acts of

retribution that violated tne i5 June

1978 version of AR 20-1 is stil] valid.

In 1981 and 1982, Petitioner

attempted through U.S. Sentators and

Congressmen to have an_- uncensored

version of the Inspector Genera!

Investigation reviewed in an attempt to

resolve this issue informally or to

obtain the necessary information

required for judicial review in a court

of law. The agency continually utilized

Té.

AR 20-1 as the authority to deny- these

requests (See APPENDIX OC). To state

now, 9 years after the fact, that AR

20-1 does not apply is arbitrary and

capricious application of Inspector

General regulations by the agency. The

30 May 1989 letter CAPPENDIX A) is only

an attempt by the agency to provide a

defense for the United States

Government.

The cecommendation by Mr. John S.

Groat, Department of Justice, that the

Office of the Inspector General provide

no further substantive responses to

Petitioner’s Inspector General Action

Request is tantamount to an “obstruction

of governmental administration" and is

an attempt to deny Petitioner due

process before the Supreme Court.

The 7 March 1989 letter from the

Office of the Inspector General clearly

stated that th head of the agency

Le

proposing to use an Inspector Genera!

record in support of a relief from

duties action will coordinate with the

Office of the Inspector Genera! prior to

initiation of that action. There was no

record that such a request was made by

the Adjutant General for release of

inspector general records for that

purpose. The Office of the Inspector

General is the proponent agency and the

“appropriate authority" to state that AR

20-1 was violated by the agency. The

letter of 7 March 1989 from the Office

of the Inspector General] should serve as

the agency’s admission that Petitioner

was the recipient of an unwarranted

personal action thereby allowing a suit

for back pay to lie.

14.

CERTIFICATE OF SERVICE

i hereby certify under penalty of

perjury that on this 4th day of August

1989, I caused to be placed in the

United States mail ‘first-class, postage

prepaid) three copies of Petitioner’s

SUPPLEMENTAL BRIEF TO PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FEDERAL CIRCUIT

-addressed as fc! jiows:

Solicitor Generii

Department of Justice

Washington, D.C. 20530

4 August 1989

Ehacife: Arvcdacns

Elmer R. Barbee

Attorney, Pro Se.

15.

A-1

May 30, 1989

Assistance Division

Lieutenant Colone] Elmer R. Barbee

Post Office Box 130

Manchester, Kentucky 40962

Dear Colone! -Barbee:

On March 7, 1989, I sent you a final

reply to your February 1, 1989, Army

Inspector General Action Request CIGAR).

Your IGAR focused on allegation of

retribution which you felt violated the

June 15, 1978, version of Army Regulation

CAR) 20-1, Inspector General Activities

and Procedures. My reply contained

several findings about AR 20-1 and the

remova! action taken against you.

Upon further legai review of this

matter, it is clear that the provisions

of AR 20-1 cited in my March 7, 1989,

letter did not apply to your case.

A-2

The June 15, 1978, version of AR

20-1 had a provision in paragraph 5-1ib

which said, “Army regulations do not

apply to the ARNG except where

specifically made applicable or where

made applicable in whole or in part by

National Guard Bureau publications."

Paragraph 1-2, Applicability, which said,

“This regulation applies to the Active

Army, the U.S. Army Reserve and the Army

National Guard", did not become effective

until February 15, 1980, when Change No.

i to that version of AR 20-1 was

implemented. No Netional Guard

regulations oor other National Guard

Bureau (NGB) publications existed between

June 15, 1978, and February 15, 1980,

which made AR 20-1 applicable in whole or

in part to members of the ARNG while not

in the active Federal service of the

United States.

A-3

Since the provisions of Ar 20-1

cited in my March 7, 1989, letter did not

apply to your October 24, 1979, IGAR and

the State Inspector General’s November

igs [7T? « report of investigation

concerning your allegations, my final

reply to your IGAR was incorrect. I

offer no opinion on the applicability of

North Carolina laws or state regulations

to your case.

Additionally, I have reviewed your

May 5, 1989, letter concerning your

disagreement with the North Carolina

Adjuntant Generai’s April Ze 1989,

letter to you. Unfortunately, for the

above mentioned reasons, I am unable to

pursue this matter further. I regret any

inconvenience this may have caused you.

Sincerely,

Marcia Rinke]

Colonel, Inspector Genera!

Chief, Assistance Division

8 June 1989

Department of the Army

Office of the Inspector Genera!

COL Marcia Rinkel

Chief, Assistance Division

Washington, D.C. 20310-1700

Dear COL Rinkel:

On 8 June 19869, I received your

letter of 30 May 1989. In that letter

you stated that my Inspector Genera!

Action Request CIGAR) focused on

allegations of retribution which I felt

violated the June 15, 1978 version of

Army Regulation CAR) 20-1, Inspector

General Activities and Procedures.

My original IGAR to your office

Involved what I felt were violations of

the 1S January 1980 version of Army

Regulation CAR) 20-1. My IGAR involved

the "Proposed Adverse Action ‘Removal! )"

letter written by Major Leslie

B-2

Everett and presented to me on 22

February 1980. On 15 February 1980, one

week prior to the initiation of that

adverse action, Change i of the 15

January 1980 version of Army Regulation

CARD 20-1 became effective and

applicable for the Army Nationa! Guard.

Therefore, your ertice was the

appropriate authority to state that

there was no basis for the adverse

action taken against me. There was

never a question as te the validity of

the Inspector General! Investigation nor

the ROI of 12 November 1979.

In that al] of those provisions of

the 15 June 1978 version of Army

Regulation CAR) 20-1 were incorporated

in Change 1! of Army Regulation CAR)

20-1, dated 15 January 1980, your letter

of 7 March 1989 is still valid. I

respectfully request that your office

revise your 7 March 1989 letter to

B-3

reflect the correct version of. Army

Regulation (AR) 20-1, dated iS January

1980, which was in effect at the time

the violations occured, and again state

that there was no basis for an adverse

action to have been taken against me.

Thanking You in Advance,

Elmer R. Barbee, LTC.

18 June 1989

Department of the Army

Office of the Inspector Genera]

COL Marcia Rinke]

Chief, Assistance Division

Washington, D.C. 20310-1700

Dear COL Rinkel:

Today I conversed by phone with COL

Williams of the Office of the inspector

General about the 8 June 1989 letter

that I sent to you. I understanc that

the Inspector General Action Request

CIGAR) of that date was forwarded to the

Department of the Army, Legal] Branch,

for a response. I further understand

that there is a legal question as to

whether or not the iS June 1978 version

of AR 20-1 was considered by the North

Carolina Army National Guard t2 ce

applicable when the October and November

1979 Inspector’s General Investigation

C-2

was conducted. To that question, I

would like to submit the fol lowing:

The Technician Personnel Act. 32

USC 709 <{¢d) states "A technician

employed under subsection ¢A) is an

employee of the Department of the Army

or the Department of the Air Force, as

the case may be, and an employee of the

wmiited’” Statee.* —..5%;; It is clear

therefore that I had the right to

register my complaints Orally or in

writing with an Inspector General IAW

Paragraph 3-3 of AR 20-1 dated 15 June

1978. My complaints were rendered while

I was in a technician status, or as a

Civilian on duty with the Department of

the Army, or as defined in 5S-1ib, in the

active Federal service of the United

States. I was a Nationa! Guardsman only

on drill weekends and for two weeks of

summer camp each year. The rest of the

time I was a civilian employee with the

C-3

Department of the Army and was in. the

active Federal service of the United

States.

Your letter of 30 May 1989 states

| that: "Upon further legal review of

this matter, it is clear that the

provisions of AR 20-1 cited in my March

7, 1989, letter did not apply to your

A A See

case.

Tne June 15, 1978, version of AR

20-1 had a provision in paragraph 5-ib

which said, "Army regulations do not

apply to the ARNG except where

specifically made applicable or where

made applicable in whole or in part by

National Guard Bureau publications."

Paragraph i-Z, Applicability, which

said, "This regulation applies to the

Active Army, the U.S. Army Reserve and

the Army National Guard" did not become

effective until] February 15, 1980, when

C-4

Change No. 1 to that version of AR 20-1

was implemented..... " Upon close review

of the 15 June 1978 version of AR 20-1,

paragraph i-2 Applicablitiy was

non-existent, and so therefore based on

this latest interpretation apparently

the 15 June 1978 version of AR 20-1 did

not apply to the Active Army either.

The 15 June 1978 version of AR 20-1

paragraph 1-2, statutory authority, ance

however state that: "Title 32, United

States Code, Section 105, provides for

inspection of the Army National Guard

CARNG> and for the conducting of

investigations of the ARNG on matters

havine Federal concern." Again, it is

clear that not cnly did the 15 January

1980, but also the 15 June 1978 version

of AR 20-1 was applicable to the ARNG as

well as civilian personne! on duty with

the Department of the Army.

C-5

Appendix I is the Department of the

Army (DA) Form 1559 signed by me on 24

October 1979 and is an Inspector Genera!

Action Request. This form clearly

States that AR 20-1 is the appropriate

regulation, and further states that the

proponent agency is the Office of the

Inspector General. If the ARNG

inappropriately utilized this form, that

is a problem for the proponent agency,

being your office, not me being a

requestor of assistance. The validity

of- the Inspector General Investigation

of October-November 1979 has never been

questioned. The ROI dated i2 November

1979 has never been in question. The

only area of concern was the Adverse

Action proposed by Major Leslie T.

Everett on 22 February 1980, After the

implementation of the 15 January 1980

version of change 1 to AR 20-1.

C-6

Appendix II is page 399 of my Civil

Service Hearing conducted July 1980.

This page is sworn testimony by Major

Leslie T. Everett stating that he at no

time prior to initiating the proposed

adverse action of 22 February 1980, saw

or had access to Inspector Genera!

records. He further stated that as of

10 July 1980 he had not had access to

Inspector General reports or records.

Appendix III is a Memorandum for

Record prepared by the Adjutant Genera!

on 28 November 1979. This memorandum

indentifies the investigation as that of

an Inspector General, and clearly does

not indicate that I knowingly made false

statements during the investigation or

in the presence of the Adjutant General.

In fact the Adjutant General was in

complete agreement with findings of the

investigation and considered it closed

with the exception of the Adverse Action

prepared against COL Guard.

Appendix IV is a letter cf 11 March

1980 signed by Major Leslie T. Everett.

Paragraph 4 of that letter states that

COL Nielsen, the Inspector General] cited

AR 20-1, dated i§5 June 1978, as the

authority to release to Major Everett

his copy of DA Form 3881.

Appencix V is a letter by me of 26

March 1980 requesting IAW AR 20-1

paragraph 1-12, e, datec January 198C,

copies of my testimony presented during

the Inspector General’s Investigation of

October and November 1979. Appendix VI

is the response provided by Charles R.

Nielson, COL. I. G., State Inspector

General, Again AR 20-1 is acknowledged

and utilized as the appropriate

authority for release of Inspector

Genera] Records.

C-8

Appendix VII is sworn testimony by

COL Charles R. Nielsen during my Civil

Service Hearing of July 1980. His

testimony states that AR 20-1 and TBIG’s

were used to conduct his investigation,

and that no statements made by me were

found by him to have been false.

Appendix VIII is a letter of 6

Apri] 1981, sent to Representative

Charles OQ. Whitley by COL William

Keeton, NCARNG, Chief of Staff. This

letter uses Army Regulations to totally

deny a request by a member of Congress

for Inspector General records.

Appendix IX is a letter dated 21

June 1982 addressed to me from Senator

Jonn P. East. Senator East provided me

a letter of 17 June 1982 signed by COL

Jonn D. Stuckey, NGB, stating that your

office was the releasing authority for

Inspector General reports. In inquiring

—— UanA§

te your office I was referrec to Office

of the Adjutant Genera! of North |

Carolina.

Finally, Appendix X is a reply,

addressed to me, dated 24 August 1982,

Signed by the Senior Deputy Attorney

General of North Carolina, Andrew A.

Vanore, Jr. Mr. Vanore is also a COL in

the NCARNC and was a senior JAG officer

for the Adjutant General. In paragraph

4 of his letter he cites AR 20-1 as

prohibiting the release of the entire

Inspector Genera!’s report.

As you can see, the validity of the

Inspector Genera! ROI of 12 November

1979, and the application of AR 20-1 has

gone ful] Cirere. Al) agencies

concerned have indicated that AR 20-1,

by either date, was applicable to the

ARNG. AR 20-1, by either date, was

utilized by NCARNG, NGB, and the

a seaeaeeeiaieameniaainiieiiiaiieaaiaiile

C-10

Department of the Army to deny

Congressmen and Representatives, both

State and Federa!, access to Inspector

General records in their attempts to

assist me in resolving this matter.

FORSCOM Supp 1 to Ar 20-1, dated 16

August 1978, provides for adding to AR

20-1, dated June i978 subparagraph d to

page 1-11, paragraph 1-13, Training.

Section (2)¢€a) states: "Army National

Guard and Army Reserve officers detailed

as Inspectors Genera! may be nominated

to attend courses of instruction under

quotas acministered by Chief, Nationa!

Guard Bureau, and HQ FORSCOM

respectively, (b>). Nominations of ARNG

personne! are submitted by State

Adjutants Genera! to the Inspector

Genera] of the Army through Chief,

National Guard Bureau." Paragraph (Ce)

placed the responsibility for the

funding and issuance of travel orders

C-11

for ARNG on Chief, National Guard

Bureau, 2g &- It is clear that the

Office of the Inspector General received

funds from Nationa] Guard Bureau for the

purpose of training Inspectors Genera!

for the ARNG. How else could ARNG

Inspectors General perform their duties

if not in accordance with AR 20-1 anc

TBIG’s?

On 24 April 1989, I filed with the

Supreme Court, 4 petition for writ of

Certiorari. This is only a petition,

and is not a matter of litigation with

the Department of the Army. The

Solicitor General’s Office requested and

obtained a thirty day extension in order

to confer with the Department of the

Army and with National Guard Bureau.

Apparently this conferring was not

limited to the Department of the Army

and Nationa! Guard Bureau in that legal

representatives from their respective

—————————

C-12

offices and from the Solicitor General’s

Office were allowed contact your office

direct and convince you that your letter

of 7 March 1989 was incorrect in that

the 15 January 1980 version of AR 20-1

was not cited.

I am respectfully and formally

initiating this Inspector General Action

Report Request of your office to provide

to me a corrected copy of your 7 March

1989 letter citing the 1S January 1980

version of AR 20-1 which was in effect

prior to the issuance of the Proposed

Adverse Action ‘(Removal > leeter dated 22

February 1980. In that your 30 May 1989

letter, stating that your 7 March 1989

letter was incorrect, was not prepared

until after my petition for writ of

Certiorari was submitted to the Supreme

Court, I am sure there is no policy

statement that forbids your office from

issuing a corrected ietter.

13

@)

Tnanking you in Advance,

LTC Elmer R. Barbee

24 October

APPENDIX

¥

4

1979

C-15

For use of this form, see AR 20-1; the

7 proponent agency is the Office of the

Inspector General and Auditor General.

‘-

C. ..

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aaST 71 PO hex 3, Morrisville, K 727560

Ce Guard - (1) is imeomperemc, (2) that COL Guard berrneses kim. op ami of! the

gee. and (3) chet be totally abuses kis peaition as Commander ef beth the Flight

Pectlicy and aew State aviation Offies.

mJ Bwerncte - (1) Be is imesmpetemc in kis position, (Z) thet bc uses kis pociticn

te harrass MAJ herbee persemally, and (3) that chere is grees eagligemsce om the part

ef beth parties ageinst Mil larbes.

SS EERE CARERRMENIN tee Oo Re ARES Gl IOI, AER Aeon FREES sienteny NR Or

dE ee ee ae

A ee

24 Cereber 1979 4 : ITrhbbr BR

Rs. 68 “Sinan |

C-16

Sworn Testimony by

MAJOR Leslie T. Everett, Jr

Civil Service Hearing

July 1980

APPENDIX

-_

-—

399

Another reason that there was a

delay between 25 October and 22 February

was compassion. I have a compassion for

Elmer Barbee’s family, his wife and

kids. To be quite frank about it, I

have none for Elmer Barbee.

Another reason in reviewing in my

mind what the Adjutant General told me,

I wanted to see if it would work. , Could

Elmer and I work together in @

reasonably harmonious and effective

relationship for the gooc of the North

Carolina Nationa! Guard, regardless of

my own persona! feeling or regardless of

Elmer Barbee’s persona! feelings.

Another reason for the delay was

that I asked Colone! Huie two or three

times for written confirmation of

Clearance by the Inspector Genera]. I

consider myse!f a professiona!. I

consider myself a human being. If

C-18

anyone makes accusations and charges

against me and they put them in writing,

I feel like I have a right to those

findings in writing. I did not request

have not seen the report, then or now.

That was a fourth reason.

The fifth reason is -- and

incidentally, on the third time I asked

Colonel! Huie, I think it was the third

time, he said, "Why do you want the

written confirmation?" or words to that

effect. I told him two things. One, I

am entitled to it.

C-19

MEMORANDUM FOR RECORD

Prepared by AG William Ingram

28 November 1979

APPENDIX II!

C-20 7

AG 28 November 1979

MEMORANDUM FOR RECORD

SUBJECT: Allegations made by MAJ Elmer

Barbee against COL Bruce Guard

and MAJ Leslie Everett

I informed MAJ Barbee this date that the

NCARNG Inspector Genera) had completed

his investigation into the allegations

made by himself. I informed him that

his was a most thorough investigation

and that 1 was in complete agreement

with the findings.

I informed MAJ Barbee that the findings

did not substantiate any of his

allegations against MAJ Everett and that

I considered that portion of his

allegation closed. ;

I informed MAJ Barbee that the

investigation substantiated only one (1)

of his allegations made against COL

Oe et enee

C-21

Guard and that I was taking appropriate

action in that regard and considered his

other allegations closed.

At this point, I counseled MAJ Barbee on

my feelings as they pertained to his

outlook toward his working associates.

I advised him that as a layman only, it

appeared to me that he_- continually

misunderstood his superiors’ motives and

recommend tc him that he should seek

counseling to determine if my

observation was correct and that if

confirmed, he should seek professional

treatment of this problem.

WILLIAM E. INGRAM

Major General, NCARNG

Adjutant General!

C-22

Letter by Leslie T. Everett

Dated 11 March 1980

APPENDIX IV

C-23

AASF #1 11 March 1980

f SUBJECT: Requested Information

(Proposed Removal Action)

Major Barbee

Aircraft Maintenance Officer

Army Aviation Support Facility No. 1

Morrisville, NC 27560

As Reference your letter dated Mar 80

on above subject.

2. The material relied on to support my

position in my recommendation for your

remova| is the fact you made sworn

charges against me (personal! harassment

and job incompetence) against me (Cyour

supervisor) and as a result of = an

extensive Inspector General

Investigation the charges were

determined to be totally unfounded and

unsubstantiated.

|

C-24

P The reference materia! relied upon

for my authority to make such a

recommendation is contained in

Technician Personne] Pamphiet CTPP>

904, Appendix A (Genera! Guide of

Penalties for Delinquency or

Misconduct), page A-4, offense #14.

4. After my verbal request to COL Huie

for the statement of charges against me

was made, COL Huie asked COL Nielsen for

authority for the document tec be given

to me. This was granted and authority

for same is given under AR 20-1] dated 15

n 7

-¥ Attached hereto is certification of

findings made in regards to charges

intitiated against me in the IG

investigation.

6. As to your request in para 2c of

your ietter, this letter concludes the

"any end al] statements, material or

C-25

further documentation" that I have for

submission to you.

Incl LESLIE T. EVERETT, JR.

as MAJ, AR, NCARNG

Commander, AASF #1

C-26

AG 1i March 1980

MEMORANDUM TO MAJOR LESLIE T. EVERETT,

JR.

SUBJECT: Inspector Genera!

nv tjon

At your request, this written memorandum

confirms verbal exoneration of 28

November 1979 from al! charges’ |odged

against you by Major Elmer R. Barbee in

recent Inspector General! investigation.

ILLIAM E. INGRAM

Major Genera!, NCARNG

Adjutant Genera}

C-27

Letter by Elmer R. Barbee

Dated 26 March 1980

26 March 1980

SUBJECT: Request for Copy of

Transcript; Inspector Generals

Investigation Oct-Nov 1980

Inspector Genera!

State Of North Carolina

Department of Crime Control and Public

Safety

ATTN: COL Neilsen

P.O. Drawer 26268

Raleigh, North Carolina 27611

. Ba IAW Ci AR 20-1, Paragraph ji-i2, e.

dated January 1980, I am requesting a

copy of the transcript of my testimony

presented during the J]nspector General’s

Investigation of October and November

sare. . This was the investigation

involving COL Bruce C. Guard, Major

Leslie T. Everett Jr. and myself. Along

with the transcript of testimony, I

further request copies of al! documents

eT Ce

C-29

pertaining to the Investigation signed

by me.

a Please provide the requested

information in person to me or mail it

to me at P. O. Box B, Morrisville, North

Carolina 27560. I appreciate your time

and interest and if I can provide any

further information, please contact me

at 733-5069.

CF COL Beale ELMER R. BARBEE

MAJ AR NCARNG

Aircraft Pilot Supervisor

C-30

Letter by I.G. Charles Nielsen

Dated 28 March 1980

C-31

AGONG- 1G 29 March 80

COL Ear! B. Huie

Chief of Staff

North Carolina Army Nationa! Guard

Post Office Box 26268

Raleigh, North Carolina 27611

SUBJECT: MAJOR ELMER BARBEE

INVESTIGATION

ie The attached letter was

hand-delivered to me on 26 March, 198C.

> : 4 ~ ; ; a

with AR 20-1.

3. Photocopy the Form 1559 signed by MAJ

Barbee and all pages of his testimony.

MAJ Barbee’s testimony was in two (2)

parts.

4. Have MAJ Barbee come to your office

and receipt delivery of the items noted

in paragraph 4 above.

SSS

C-32

Charles R. Nielsen

COL, 2:8:

State Inspector Genera!

CF - MAJ Barbee

-33

i?)

Sworn Testimony by

Col. Charles R. Nielsen

Civil Service Hearing

July 1980

APPENDIX VII

C-34

66

Mr. Twiggs wants to challenge the

thoroughness of the investigation, he

may do so. But it certainly should be

accepted, if not for the truthfulness of

everything in there, but to establish

that a thorough investigation was in

fact conducted by Calone] Neilsen.

You stated in your ruling yesterday

that with respect to matters cf opinion,

the weight given to such opinions

Gepended in part on the expertise of the

person stating it. I suppose that

expertise must in turn be based upon the

person’s reasonable opportunity to form

an opinion. I! say, therefore, that this

investigation is offered to show that

the opinions stated by the Inspector

General are based on a thorough

investigation of the charges.

HEARING EXAMINER COLEMAN: Let the

record show that counse ] for the

' 0-35

{

appellant objected to it being entered

at this time. But we will go ahead and

enter it based on counsel for the

Agency’s proposa!.

The documents referred

to were marked as

Exhibit 18 and received

in evidence. >

HEARING EXAMINER COLEMAN: Are you

ready to proceed?

CROSS EXAMINATION

BY MR. TWIGGS:

Q Colonel Neilsen, I don’t believe

they asked you where you reside. May I

ask where you reside, sir?

A Kinston, North Carolina.

Q Your official] duty with the

Nat] Ls . hi iti that

now hold jis as the State Inspector

G 1?

A That is correct.

il

C-36

G You were callec py General Ingram

in this case to conduct an investigation

as the Inspector General. Is that

correct?

A To be specific, Genera! Ingram told

Colonel Huie to cal] me. But it amounts

to the same thing. He directed that an

investigation be done.

Q By you as the Inspector Genera] in

A That is correct.

e) Now, in ‘the beginning of your

investigation, I would like to point to

one of the exhibits that you referred,

which is the exhibit that is dated

October 24, 1979. Did you prepare this

document for Major Barbee to sign?

A He did it in handwriting and then I

had the stenographer type it and brought

back to Major Barbee on the second

reca!] and asked him to look at the

— C-=37

typed one. If it was agreeable, would

he sign it? He did and it was signed.

Q And it was signed other than

handwritten in this same form and on the

same form back on the 24th and then was

later resigned for record purposes.

A That is correct. It was just for

record purposes. I think the reason why

is my handwriting is not the clearest

Q Mine isn’t either, Colonel. I

sympathize with that. Sir, this is in

evidence and it has~been admitted in

evidence as one of the exhibits. It is

Exhibit BB. So it’s before the body.

This time, Mr. Smith has seen it.

This form is an Inspector General

Action Request. Tnat is the title of

the form.

A That’s correct.

Q Also, on the form, it says for use

of this form see AR 20-1. Is that

correct?

C-38

A That is correct.

Q Let me hand you AR 20-1 for

identification purposes. AR 20-1, for

identification purposes, is the

Inspector General Activities and

Procedures for Inspections and

Investigations.

A That is correct.

G The AR 20-1] also applies in ji.2.

. j t j lies to the Active

Army. the United States Army Reserve and

+ ione!

A That is correct.

Q You were giving him this form to

sign in respect to AR 20-1 as a member

of the Army Nationa) Guarc.

A That is correct.

Q@ The warning, if I can cal) it that,

stated and printed on the bottom is

“This information is submitted for the

basic purposes of requesting assistance,

correcting injustices affecting

C-39

individuals or eliminating condjtions

considered detrimental to the efficiency

Or reputation of the Army. I fully

understand that I may be held

accountable for any statements which are

proved to be knowingly untruthful."

A That’s correct. Mr. Twiggs, if J

micht state, the reason why this form

was used was J] felt [ had to protect

every person jinvo!ved. This statement

wW £ Fy ett 7

Guard as we | as Barbee.

A Ido not know. "“Knowingly"?

Q Isn’t that what the form says?

A ‘sw

C-40

G I hand you now AR 20-1 also,

Chapter 3 Section 34. I will ask you,

sir, if you will, to read that into the

record for me first.

A That is on page 3-2, paragraph 3-4,

"Liability of Individuals Knowingly

Making Untruthful Statements: Any

person on duty with the Department of

the Army who under the guise of

presenting a legitimate complaint to the

Inspector Genera] knowingly makes an

untruthful statement will be subject to

disciplinary action. The appropriate

commander will be informed promptly of

the details of any such incident."

Q Co} 1_Neil , it )

to you that the form that Major Barbee

Ssignec concerning being “hela

r iS WwW

Vv know] ] *

Q Yes.

A It is, basically, yes.

Q I ask you now, if you will, to look

at Section 3-3, refering back to Section

3-4, and if you will read Section E,

which is on page 3-2 and is a portion of

Section 33, please, into the record.

A Paragraph EE: "Any type of

ji ‘oli t} ty 7

; } individual ¢ regis! , F

rey , orate! -

; in thi tj Ls_tha' b?

A That is correct.

Q Do you hNnave ae copy of tne

transcript in front of you, sir?

lence el

C-42

A You have taken it away from me.

e The transcript? On, I’m sorry;

it’s in evidence. When you said I had

it, I thought you meant I had it.

A No, "you", the Court.

QO In connection with AR 20-1, Section

3.3 and the form Major Barbee signed, I!

ask you to turn please, if you Wilt, to

page 62. At the bottom of the page, in

the last question, I wilt ask you if

near the conclusion, being on the next

to last page of your first interview

with Major Barbee, if you did not in

your capacity as Inspector Genera!)

inform him, “I want to tell you again

that the information that you have given

to me is confidential. The exhibits ycu

have given me will be part of the

record. At the time that I _ have

comp ]eted my investigation, I wil!)

report to General Ingram and I will] te)!

him my conclusions and recommendations."

That is the statement, of course, that

you made to him.

A That’s right and that is right out

a W Vv

format for the protection of the

individual and al] concerned.

Q And that is from 20-1?

A No. it’s not. lt is from the TBIG

7 Tein! Bulletj |

inspector General. They have a format

ivi l aG...5 kK

sure that the rights of the individuals

are covered.

Q All right, if you will turn to the

next page, please. The second sentence,

“the information". This of course

refers to the infarmation that you

obtained. "The information will be

placed in a sealed file and will not be

divulged to other people. The

information that you have given me, I

want to remain confidential." That is

C-44

also from your duties eas Inspector

General, not to make material given to

you common knowledge.

h Tnat’s correct. The Inspector

General’s system is that he is the

commander’s agent. I am the agent of

the Adjutant General. What I do is

given to him for whatever he wants to do

with it. He can throw it out the window

or he can take severe action or he can

take mediocre action and so forth.

Cc _ - Z a _ os

a i fax = xk ee are c nN es ,Ge. Ret —

° il = + =~

ashe nspecicr veneta: aciua y cornauc7Ts

2 Th -— T aa: be la re ~+°O

. cne iS Set- a" ~~ i i, 3 a

A It’s for his commander.

GO All right, it’s for his commander.

B We have other inspector genera!s

who are at lower echelons.

Q All right, sir. Now, I will] ask

you please to look --if we handed it

back to you. If we haven’t I apologize.

I don’t think we have. I am handing

C-45

Back to you the formal recommendation

made and dated 12 November, 59. I think

that is the one which has been admitted,

the excised portion being excluded.

Concerning the evidence, you found

that the testimony on page 2, number 6A,

of Major Barbee did not prove the

allegations as stated in SA-1 and 2

against Guard and Everett.

A That is correct.

Q "Did not prove" were the words that

you used in this respect.

A That is correct.

Q Under the portion remaining B on

page 3 concerning Major Everett, your

report states that "sworn testimony does

not substantiate Barbee’s accusations."

“Does not substantiate" of couse jis the

lanquage you used jin that report.

A That is correct.

Q That was correct. Concerning

discussion on page 4, number 7, refering

C-46

to dissatisfaction, "Major Barbee’s

primary reason for dissatisfaction and

his allegations stem from his

non-selection as facility commander and

are further reinforced by his grounding

by Major Everett. The allegations again

cannot be proven, except for civilian

work of Guard, but can be rationalized

when taken iti the context of a

subordinate and a commander." You said

there that these allegations simply

could not be proven. _j[sn’t that

A That’s correct.

Q Nowhere in your recommendations,

turning please to page 6, Gid you use

the word "fa)lse" concerning the

information civen to you Dy Major

Barbee, did you, sir? If you wil] look

at that. gir,

A Let me read the rest of the page.

(pause. >)

C-47

No, J] don’t think J useg the word

“false" at all. J do not fijng it.

Q So your use of "false" when you

Gescribed the information that Major

Barbee gave you earlier, what you are

referring to actually is that the

allegations could not be proven and not

that certainly Major Barbee was lying to

you when he answered your questions?

- Now you are asking for my

assumption now. Is tnat correct?

Q Well, I am asking --

ra) If you are, I would like to make

some statements regarding that.

Q All right, I will ask you. I think

you are entitled to do that.

A In the testimony, there are certain

parts in here that I felt tended upon

being false, but I could not prove it.

Q You could not prove they were

false.

oa I could not prowe they were fa!se.

But other testimony led to it, but just

didn’t open the door to me. I am not a

refined educated investigator. I am the

Inspector General because of my

experience in the National Guard and

that is the way other Inspecotr Generals

are.

G Colone!, I think you did a good job

in your investigation. I don’t think

you have to apologize for it frankly.

And I think your questioning was

excellent.

A Well, I feel like there were some

points in there that should have been

cena further.

le Al) right. Il can go throvghn the

testimony with you pege by page, jtem

for jtem, and I] can ask you jf you

thought at -the moment when he answered

er: 1é eae intent! 1]

lying to you or stating untrue

C-49

statements. Now would you be able tc

answer any of those questions in that

manner?

A No. lL cannot find any untrue

statements. In fact, I stated "in his

mind” z

Q Yes, "in his mind".

A I said that someplace in there.

Q Yes, I know you did.

Colonel, if you would turn to page

202. This was when you were of course

asking him questions near the completion

of the second interview with him. I

think Mr. Smith referred to most of

those questions, beginning about the

middie of the page. You asked the

question, "Did you ever make a statement

to some of the personne! that it appears

to you that if you were going out of the

National Guard you are going to take

some people with you?" He answered,

"Yes sir, I did make that statement at

\ Letter by COL Wm. Keeton, Jt

to the Honorable Charles O. Whitley

~~

Dated 6 April 1981

AGONC-AGCS 6 Apri} 1981

Honorable Charles O. Whitley

House of Representatives

Washington, D.C. 20515

Dear Mr. Whitley:

Reference is made to your letter, 31

March 1981, concerning a request made by

Major Elmer R. Barbee for a copy of an

uncensored report of the investigation

of nis case.

I have consulted our legal counsel! in

the Office of the State Attorney

General, and he has confirmed that the

request must be nj j nce

with existing Army Requlations and the

Privacy Act.

Sincerely,

WILLIAM P. KEETON, JR.

Colonel, GS, NCARNG

Chief of Staff

|

Fetter by U.S. Senator Jonn East

With Attachment Dated

21 June 1982

Mr. Elmer Barbee

Post Office Box 97

Manchester, Kentucky 40962

Dear Mr. Barbee:

I have received the enclosed letter

from the National Guard Bureau in

Washington, D.C. reguarding my inquiry

on your benalf. I know how interested

you are in this matter.

I trust the response is self

explanatory and beneficial to your

inquiry.

Please continue to keep me apprised

of any concerns you have and do not

hesitate to let me know whenever I may

be of service.

Sincerely

Jonn P. East

‘7?

n | en

JPE:1b

Enclosure

6-54

NGB-PO i? June 1982

Honorable John P. East

United States Senate

PO Box 25009

Raleigh, NC 27611

Dear Senator East:

This is in reply to your inquiry in

behalf of Eimer R. Barbee who

communicated with you recently

requesting your assistance in obtaining

an Inspector Genera!’s report from North

Carclina.

The Of¢j f_th ral

o .

r rc a £

nera! or . Accoringly, Mr. Barbee

should submit a written request to that

office for a copy of the report he

desires.

wn Fas

I hope this information wil! be

helpful.

Sincerely,

Inc] JOHN D. STUCKLEY

CC: TAG NC Chief, Office of Policy

and Liason

Letter by Andrew Vanore, Jr

Dated 24 August 1982

APPENDIX X

7

C-57

24 August 1982

Mr. Elmer R. Barbee

Post Office Box 97

Manchester, Kentucky

40962

Dear Mr. Barbee:

I reply to your letter of 9 August 1982

addressed to the Office of the Adjutant

General of North Carolina, requesting

copy of the original investigative

report filed by the Inspector General.

This Inspector General report was filed

with the Adjutant General in 1979 and

was based on certain complaints that you

had initiated.

As you pointed out in your letter, you

and your attorney were furnished with as

much of the Inspector General’s report

which ethically and responsibly could be

made available. For obvious reasons,

Inspector General’s reports contain

information of a privileged nature, the

confidentiality of which must be

maintained.

Mr. Barbee, you had your day in court.

You were represented by most competent

counsel. Although you did not concur

with the results, you were provided

every benefit allowable under law.

I my opinion, Army Reaqujlation 20-1

i

prohibits the release of the entire

Inspector Genera!]’s report. As you are

very much aware, when an Inspector

General conducts an investigation, he

speaks to many individuals on a4 very

confidential basis and these individuals

are, for obvious reasons, assured of the

confidentiality of their comments. You

and your attorney were afforded as much

of the report as could ethically and

legally be made available to you.

By copy of this letter, IJ am advising

Senator East that I will be happy to

personally discuss this matter,

1 6-59

Including the Inspector General’s report

with him or any member of his staff.

Very truly yours,

RUFUS L. EDMINSTEN

Attorney Genera!

Andrew A. Vanore, Jr.

Senior Deputy Attorney Genera!

AAVir:is

cc: Senator John P. East

General William E. Ingram

Col. William P. Keeton, Jr.

Jaw 4

a

Barbee

R.

olone)

rr

enant wv

+

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Lieu

St »

Aest

Nw h

Manc:

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