Thanks for the chance to help. I am an attorney with over 12 years military law
You ask a great question
Can a CDR issue a relief for cause using toxic leadership, but a formal 15-6 show no toxic leadership? Especially, if I have never been formally counseled on that matter during a 9 month period as leader?
The answer is, perhaps....
It really depends on how this played out.
The Army Regulation
that applies for RFC can be seen herehttp://www.apd.army.mil/pdffiles/r600_20.pdf
Here is what it provides
2–17. Relief for cause
a. When a SC loses confidence in a subordinate commander’s ability to command due to misconduct, poor judgment, the subordinate’s inability to complete assigned duties, or for other similar reasons, the SC has the authority to relieve the subordinate commander. Relief is preceded with formal counseling by the commander or supervisor unless such action is not deemed appropriate or practical under the circumstances. Although any commander may temporarily suspend a subordinate from command, final action to relieve an officer
from any command position will not be taken until after written approval by the first general officer (to include one frocked to the grade of brigadier general) in the chain of command of the officer being relieved is obtained. Any action purporting to finally relieve an officer from any command position prior to the required written approval will be considered for all purposes as a temporary suspension from assigned duties rather than a final relief from command for cause. If a general officer (to include one frocked to the grade of brigadier general) is the relieving official, no further approval of the relief action is required; however, AR 623–3 concerning administrative review of relief reports remain applicable.
b. If a relief for cause is contemplated on the basis of an informal investigation under AR 15–6, the referral and comment procedures of that regulation must be followed before initiating or directing the relief. This does not preclude a temporary suspension from assigned duties pending completion of the procedural safeguards contained in AR 15–6. Any action purporting to initiate or direct a relief for cause on the basis of an informal investigation under AR 15–6 taken prior to completion of the procedural safeguards of AR 15–6 will be considered for all purposes as a temporary suspension from assigned duties.
So that second paragraph is key. If the commander anticipated relief for cause, they are required to provide due process protections...specifically they must
(1) Notify the person in writing of the proposed adverse action and provide a copy, if not previously provided, of that part of the findings and recommendations of the investigation or board and the supporting evidence on which the proposed adverse action is based. (
2) Give the person a reasonable opportunity to reply in writing and to submit relevant rebuttal material.
(3) Review and evaluate the person’s response. In other words, to receive a copy of the AR 15-6 Report of Investigation and the opportunity to rebut the contested AR 15-6 Report of Investigation.
What you describe? It sounds like that did not happen.
So that would violate the Army
Command Policy regulation.
Now...to the broader question, can they still conduct an RFC, even if the 15-6 finds on toxic leadership? The answer is yes, IF they follow the rules. The 15-6 is simply guidance. It does not bind the commander...the commander can agree with or disagree with the opinions of the IO. SO a commander can ignore the findings of the IO in your case and relieve you...that is certainly possible. But they must follow the AR on command policy as well.
BotXXXXX XXXXXne: the commander can issue an RFC (relief for cause) but only if they give you the due process rights as detailed above.
Please let me know if you have more questions...happy to assist if I can