The questions behind the 2022 Adverse Information Pilot Program (AIPP) are circulating, but the dirty secret is being unveiled.
If you are pending promotion as a field grade officer, please read carefully. Despite the draconian specter of the Army’s Adverse Information Pilot Program (AIPP) you can still be promoted even if you were once investigated by law enforcement, whether CID, of MPI, or maybe appeared on a blotter. If you are unaware, make no mistake, the AIPP can be proactively OVERCOME.
By way of introduction, the AIPP is based upon 10 U.S.C. § 615(a)(3), which applies to all commissioned officers (and branches) seeking a promotion to a grade of O-4 (MAJ) or higher. It warns “any credible information of an adverse nature, including any “substantiated” adverse finding or conclusion from an officially documented investigation or inquiry, shall be furnished to the selection board….” Seems clear, right? Wrong. Remarkably, 10 U.S.C. § 615(a)(3) does not define “substantiated.” In a nutshell, it is a profoundly important statutory standard without a burden of proof. As such, so long as there is a “official record” it will be first, summarized and then shared with your promotion board—naturally thereby dooming your advancement.
Now the good news. Fortunately, several U.S. Army Regulations (AR), and a Department of Defense Instruction (DODI) define substantiated evidence to mean evidence which is “supported by a preponderance of the evidence (otherwise also commonly termed “more likely than not.”) See also, DoDI 1320.04 (Incorporating Change 1 Effective June 30, 2020) 7. By analogy, AR 600-8-24, para. 4-2 similarly states that a board of inquiry’s (BOI) “substantiated adverse finding” must, by definition, satisfy the same “preponderance of the evidence” standard.” see also, AR 135-175, para. 4-1 (“function of the board will be to determine, by a preponderance of the evidence standard, whether or not the ground(s) for discharge listed in the notice to the officer (respondent) exists.”)
Although the applicability of the “preponderance of evidence” burden of proof seems clear some military law enforcement agencies (i.e., CID) have nevertheless been sending, as will be explained next, poignantly “unsubstantiated” derogatory material to HRC. This is possible because some CID agents coerce young Judge Advocates to issue so-called “probable cause” opines that an allegation is true. Here’s the fundamental problem, the “probable cause” standard is insufficient to trigger the adverse disclosure requirements mandated by 10 USC § 615(a)(3). See e.g., United States v. Bethea, 61 M.J. 184 (C.A.A.F. 2005) (“Probable cause is met by less than a fifty percent probability….”) To be clear, a misconduct allegation may satisfy the “probable cause” standard, and yet, in each instance, fail to satisfy the more demanding “preponderance of the evidence” standard. In short, “probable” does not mean “likely.” In sum, a non-select result based upon a probable cause determination by CID should never, ever, come to the attention of a promotion board.
2022 Adverse Information Pilot Program – More Information
For more about 2022 Adverse Information Pilot Program please contact our team at Court & Carpenter. Also, see Stephen H. Carpenter Jr. – military defense attorney, on Linkedin to stay up to date on these changing policies.