# Supplemental Brief — Barbee v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Supplemental Brief
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 809

## Text

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.

hl TUT
ow

TTON STLT PS

a ese Seed

COURT OF THE UNITED

OCTOSER TERM 1986

THEE UNITED STATES

-_- ~~

SUPPLEMENTAL BRIEF

bet et 4 eto

WRIT OF CERTIORARI TO THE UNITED STATES
FOR THE FEDERAL CIRCUIT.

COURT OF APPEALS

FP. Barbee

4 + . AT a
Manonester, Kentucky 40962
“~-> ¢
| CH)

Table of Authorities...---+++++++° ii
tatement of Pelt Meee
ConcluSiOns....--seeeeererresceres 14
Certificate of Service...---+-+-++-4 5
APPENDIX So
APPENDIX B.... 206208500 = ewe 3-*
APPENDIX C....

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 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.

) 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 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. ..

SPECTOR GEKERAL ACTION REQUEST

i oe oe SO an am, OR Tt” oe © ae Our & Teo Lcocheaasiindnan ine
DATA RBGUIRED EY THE PRIVACY act OF 19%

ADTECEITT: Tite 10, USC, Gccmen S088

PRIMCTAL PURPOSE. Te mame eefiatent MingEeen we mene meey ee Ge EEE pro cet we poets 5
Ne

OTR SEES hateaaos ¢ aod er oD Sees oti thes Oneaarinc cant oi Uemlemme Ok mire oo

SY REE ow cone eM wr eT os se er tes Cnedinemes com ot Bary
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

+
~~

Lieu

St »

Aest

Nw h

Manc:

|
\

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1256%3A3. Public record. Not legal advice.