MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 October 2002
	DOCKET NUMBER:   AR2002069176

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Hubert S. Shaw, Jr. 		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. Luther L. Santiful		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Through his counsel, that the Army Board for Correction of Military Records (ABCMR) and the current Secretary of the Army “deem the former Secretary’s action contrary to law, or, in the alternative, deem the two grade reduction unjust and reinstate [the applicant’s retired rank and name omitted] to the rank of Major General.”  Further, the applicant requests through counsel that the ABCMR “award all back pay and allowances to which [the applicant’s retired rank and name omitted] is entitled, and any other relief that the Board [ABCMR] deems just.”

APPLICANT STATES:  In effect, that counsel will present his case.

COUNSEL CONTENDS:  In a 16-page “MEMORANDUM IN SUPPORT OF APPLICATION FOR CORRECTION OF RECORDS” essentially that the decision by a former Secretary of the Army to reduce the applicant from major general to colonel was contrary to law and was unjust.  Counsel for the applicant presented the contentions, arguments, and evidence related to this case in one bound volume, dated 15 February 2002, with numbered Tabs 1 through 25.  Pages i and ii, next under the document cover, are the index of documents contained in the bound volume.

Counsel for the applicant, by way of introduction, initially asserts that the decision of a former Secretary of the Army to reduce the applicant from major general to colonel was contrary to the law and unjust given the applicant’s outstanding and dedicated service to his country.  Counsel contends that the applicant’s career was distinguished in a manner achieved by few other officers, and the events in question “did not comport with his outstanding character.”  Counsel also noted that the applicant was punished for his misconduct by nonjudicial "action which he accepted without question.”

Counsel then sets forth his first argument, specifically that a former Secretary of the Army’s action in reducing the applicant’s grade under Title 10, United States Code, Section 1370, [hereafter cited as 10 USC 1370] and Army Regulation 15-80 (Army Grade Determination Review Board) “was an act of punishment.”  He explains that this was an act of punishment because during the balance of the applicant’s career, “even when his actions were misguided, [the applicant’s retired rank and name omitted], continued to serve with distinction both as a Brigadier General and as a Major General.”  Counsel continues that even today the applicant continues to unselfishly serve his country by assisting a government agency in covert support of Operation Enduring Freedom and is working night and day in a highly visible and sensitive project critical to defeating global terrorism.

Counsel then sets forth a summary of the applicant’s early career and specifically highlights the applicant’s unbroken string of perfect efficiency reports and his numerous awards of the Meritorious Service Medal and a Bronze Star Medal for service in Vietnam.  He also notes that the applicant commanded three infantry platoons and commanded two companies, attended the Command and General Staff College, then served in battalion-level “line” assignments until his attendance at the Army War College.  Counsel points out that the applicant served as a battalion operations officer twice including once as part of the assault force into Grenada, deferred attendance at the Army War College so that he could command a Ranger Battalion and commanded a brigade upon graduation from the Army War College.

Counsel then provides extracts from the applicant’s Officer Evaluation Reports (OER) as a colonel:  

	Comment by a major general:  “[The applicant’s rank and name omitted] is one of the most outstanding officers in the Army today.  Revered by his soldiers and respected by his peers and superiors, he can accomplish any mission.  He is a warrior, a superb leader, and an outstanding trainer...He epitomizes what a commander should be.  He is ready for promotion to general officer now.”

	Comment by a major general:  “[a]n absolutely brilliant command performance by one of the Army's premier colonels.  [The applicant’s name omitted] is smart, tough and disciplined with the vision and initiative to make good things happen for training and soldiers.”

	Comment by a major general:  “I believe [the applicant’s name omitted] is the best colonel in the United States Army.  He is certainly the best brigade commander I have ever seen.  Promote [applicant’s first name omitted] to brigadier general now and make him an ADC [assistant division commander].  Prepare for division command.  Four star potential.”

	Comment by a lieutenant general:  “The applicant’s rank and name omitted] was the best Corps G-3 in the Army.  He is an expert on Joint and Combined operations.   He will reach three or four-star rank without question.” 

Counsel then states the applicant received a sixth Meritorious Service Medal and two Legion of Merit citations as a colonel and then was selected for early promotion to Brigadier General, the most junior officer on his list to be so selected.  Counsel also asserts that the applicant, as a brigadier general,  performed his duties with nothing less than total distinction, “a point of no little relevance given the ultimate decision that his overall service in grade was not satisfactory.”

Counsel continues that while serving as the Assistant Division Commander-Maneuver at Fort Stewart, Georgia, and at Victory Base in Mogadishu, Somalia, his rater, the division commander, stated the following: 

	“Singularly outstanding in all stated attributes. ..the finest officer in our Army. .. he is the very best at all he does. ..simply the finest performance I have ever observed. ..will be the finest division commander this Army has ever known. Evident four star potential.”

Counsel also pointed out that the applicant’s senior rater for this same OER, a lieutenant general wrote: 

	“BG [applicant’s name omitted] has done an absolutely superb job as ADC-M [assistant division commander for maneuver] for the 24th ID (Mech), the heavy division of the crisis response force.  His demonstrated expertise in all facets of warfare guided the division through a tremendously aggressive training program. The results in all exercises, EDREs, on-post training, and association with Reserve Component units attest to his successes. ...Select [the applicant’s name omitted] for promotion to MG immediately and assign as a division commander. Three or four star potential.”

Counsel pointed out that from 12 June 1994 to 1 June 1995, the applicant served as the Assistant Commandant, U.S. Army Infantry School and Deputy Commanding General, Fort Benning, Georgia, and that his “follow-on Brigadier General fitness reports were of equal stature.”  His senior rater, a lieutenant general “opined” that:

	"[The applicant’s name omitted] is the best Brigadier in the Command.  A superb trainer, and doctrinal thinker, this broad-scope officer can do it all.  Future DCSOPs [deputy chief of staff for operations and plans] and CINC [commander in chief of a Unified or Specified Command]." 

Counsel also states that the applicant’s subsequent OER was equally glowing: 

	“Clearly one of the best brigadier generals in our Army.  General [the applicant’s name omitted] demonstrated unusual competence, poise, and integrity while performing several difficult tasks this year, including the investigation into the tragic deaths of four Ranger students and planning and hosting the TRADOC [U.S. Army Training and Doctrine Command] Assistant Commandants Conference.  Bright, exceptionally fit, both physically and emotionally, and heavily imbued with the right values and competencies for senior Army leadership, General [the applicant’s name omitted] clearly has the potential for three and four-star responsibilities.  Following division command, promote and assign to command a corps. One of our best commanders.”

Counsel then points out that the applicant was awarded the Legion of Merit and again he was promoted at the first opportunity to major general.  Counsel also contends that the applicant’s fitness reports as a major general and his experience clearly placed him within reach of the highest positions in the military as evidence by the following comments of a lieutenant general:

	“Major General [the applicant’s name omitted] is the best Division Commander I have served with in more than 33 years of service.  His performance has been superb by every measure.  There is nothing he can't do and do it better than other outstanding peers.  His overall performance has clearly confirmed that he is one of our Army's best generals.  [The applicant’s name omitted] can perform right now at the three star level with absolute distinction...prepare him for his fourth star...obvious potential for Chief of Staff, Army.”

Another lieutenant general commented on the applicant’s performance:

	“[The applicant’s name omitted] is the best General Officer assigned to USARPAC [U.S. Army Pacific]! ...One of our Army's most outstanding warfighters; he is just as adept at organizing, training, equipping and sustaining his Soldiers and caring for their families. ..[The applicant’s name omitted] should be one of our Army's senior leaders...should be one of the Army's 4-stars or a warfighting CINC.”

Counsel also noted that a U.S. Marine Corps lieutenant general “said it best”:  

	“The applicant’s name omitted] is ready now and we will need him to lead the Army and the Joint Services into the 21st Century.”

Counsel then states that a Vice Admiral, United States Navy, “said much of Major General [the applicant’s name omitted] contribution to the country”: 

	“Promote [the applicant’s name omitted] to Lieutenant General immediately and put him in command.  He is a dynamic, caring leader and extraordinary Soldier capable of assuming the highest levels of responsibility and will excel whether working in joint, combined, or inter agency environments.  His keen strategic vision, operational acuity, and tactical expertise earmark him as one who will definitely lead the Army and Joint Community well into the 21st Century.  A future 4-star.” 

Counsel points out that for his "exceptionally meritorious service in a duty of great responsibility," the applicant received the Distinguished Service Medal for the period from June 8, 1995 to June 24, 1997. 

Counsel then states that while serving as the Vice Director of Operations for the Joint Chiefs of Staff, the applicant was nominated by the Secretary of the Army to the grade of Lieutenant General and was recommended for award of the Defense Distinguished Service Medal.  However, counsel noted that the applicant’s nomination for promotion to Lieutenant General was operationally deferred by the Chairman of the Joint Chiefs of Staff because of the critical need for continuity in the Operations Directorate, especially during preparations for Kosovo and ongoing terrorist threats. 

Counsel continued that, while serving as the Vice Director for Operations in 1999, the allegations arose which eventually led to the applicant’s nonjudicial punishment and resignation and that, upon retirement, he moved to [name of city and state omitted] where he currently resides with his wife.  

Counsel then summarized the achievements of the applicant’s career.  

	“In sum, [the applicant’s retired rank and name omitted] career was marked by extraordinary service and lasting contributions throughout.  As a benchmark of his level of performance and contribution, he was selected for promotion below the zone and for early attendance in professional schools at each of five possible opportunities.  He was the junior officer selected for promotion on his brigadier list.  Likewise he was selected at the first opportunity for Major General and for Division Command.  When placed in Division and Installation command, he was three years junior to any serving division commanders.

	[The applicant’s retired rank and name omitted] was nominated for appointment to Lieutenant General at first opportunity in the summer of 1998, but was operationally deferred for a year personally by the Chairman of the Joint Chiefs of Staff in order to offset unexpected senior personnel turbulence on the Joint Staff during an unprecedented period of unrest in the Balkans/Kosovo and during efforts at combating a rising surge in terrorism. 

	[The applicant’s retired rank and name omitted] level of contribution and record of performance for 6 1/2 years of service as a general officer speak for themselves as being singularly outstanding.  His performance reports, subsequent early promotions and selections, and level of service to the nation attest to that final indicator of [the applicant’s retired rank and name omitted] enduring value to the Army, (if one were needed) [the applicant’s retired rank and name omitted] was invited back to government service after his retirement, based on his level of contribution to the interagency effort of combating terrorism (as the senior military member of the National Coordinator's Counter-terrorism Strategy Group), to help gain Interagency Deputies' and National Security Council Principals' approval for a highly sensitive project combating terrorism.  After [the applicant’s retired rank and name omitted] personally briefed the Vice President and National Security Advisor, the small team that he works with has led that project to great success, so much so that its results in Operation Enduring Freedom are briefed daily to the President and National Security Council Principals.”

Counsel then discusses the applicant’s nonjudicial punishment and retirement grade determination.  Counsel points out that in 1999, when allegations of engaging in two improper sexual relationships with the spouses of subordinates arose, Major General [the applicant’s name omitted] “did not flinch at taking responsibility.”  Counsel asserts that the applicant waived the statute of limitations on the earlier conduct, and agreed to accept non-judicial punishment proceedings held under Article 15, Uniform Code of Military Justice (UCMJ), in lieu of a court-martial and that in those proceedings, Major General [the applicant’s name omitted] agreed to plead guilty to two counts of adultery in violation of Article 133, UCMJ, and one count of attempted fraternization in violation of Article 80, UCMJ.  Counsel contends that the material part of the conduct, which was of a consensual nature, took place from December 1991 to July 1992 and from December 1995 until July 1997.  He describes the applicant’s punishment included a forfeiture of $4,316.00 pay for two months and a letter of reprimand and further noted that the applicant also submitted his resignation from the service. 

Counsel for the applicant then described the grade determination process in this case, specifically that, upon processing Major General [the applicant’s name omitted] request to resign, the Secretary of the Army at the time in question convened an Army Grade Determination Review Board (AGRDB) pursuant to Title 10, United States Code, Section 1370, and Army Regulation 15-80.  Counsel points out that the applicant submitted a statement in his own behalf to the AGRDB and the AGRDB met and issued at least one recommendation, which has never been disclosed.  Counsel continues that the Chief of Staff of the Army reviewed the AGRDB’s recommendation and his action on that recommendation has also never been disclosed. 

On November 16,1999, the Secretary of the Army decided that Major General [the applicant’s name omitted] had not served satisfactorily in the grades of Brigadier General and Major General, and instructed that Major General [the applicant’s name omitted] be retired as a Colonel, thereby reducing him two steps in rank upon his retirement. Counsel also pointed out that the Army issued a press release on that day, and conducted a press conference about the Secretary of the Army’s action.  He further states that the former Secretary of the Army’s remarks, as contained in the Army's press release, were telling: 

	“[a]lthough this incident represents a failure to uphold and honor the loyalty and trust that must exist in relationships between superiors and subordinates, it is not reflective of the quality of leadership in the Army.  Day in and day out the vast majority of the Army's senior leaders provide exceptional and caring leadership to our service men and women serving in very difficult and dangerous conditions around the world.  The two-grade reduction from major general to colonel should send a very clear, strong signal that there is no place in the Army for this behavior.”

Counsel asserts that, as a result of the two grade reduction, [the applicant’s retired rank and name omitted] retired pay is $1,406.13 less per month than it would have been had he retired as a major general, which over the course of his life will amount to approximately $1 million dollars.  Counsel asserts that the press release makes it plain that the Secretary of the Army was fully cognizant of the magnitude of this forfeiture and that it was his clear intent to cause that consequence, because the sentence concerning how much retirement pay the applicant would not be receiving is followed directly by the statement that the applicant’s conduct was a serious breach of trust.  Counsel then points out that the former Secretary of the Army’s action generated a “firestorm” of media attention. 

At this point in the legal brief, the applicant’s counsel restated the applicant’s request to the ABCMR:

	“On behalf of [the applicant’s retired rank and name omitted], the undersigned counsel respectfully asks that the Army Board for Correction of Military Records correct the record for the following reasons.  The Secretary’s action in demoting [the applicant’s retired rank and name omitted] under Title 10 U.S.C. Section 1370 and Army Regulation 15-80 was an act of punishment.  This is so because during the balance of his career, despite this inappropriate conduct the applicant continued to serve with distinction both as a Brigadier General and as a Major General.  Alternatively, the Board should find that such a draconian punishment is unjust under the circumstances.”

Counsel next discusses the law governing operation of the ABCMR beginning with Section 1552, Title 10, United States Code which provides for the correction of errors in the record of a member of the military.  He states that upon timely application and consideration, the statute provides:  

	“(a)(l) The Secretary of a military department may correct any military record. .. when the Secretary considers it necessary to correct an error or remove an injustice. Except as provided in paragraph (2), such corrections shall be made by the Secretary acting through boards of civilians of the executive part of the military department.” 

	“The ABCMR operates pursuant to law, 10 U.S.C. 1552, within the Office of the Secretary of the Army. The ABCMR consists of civilians regularly employed in the executive part of the Department of the Army (DA) who are appointed by the Secretary of the Army and serve on the ABCMR as an additional duty. Three members constitute a quorum.”

Counsel also cites from the Code of Federal Regulations (CFR):

	“Board for Correction of Military Records, 32 C.F.R. Section 581.3.  The ABCMR will review all applications that are properly before them to determine the existence of error or injustice, provided that the allegation of error is adequately supported by evidence.  32 C.F.R. Section 581.3(b)(4).”  

	Counsel for the applicant then argues that this Board [the ABCMR] has “an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and to take steps to grant thorough and fitting relief.”  Yee v. United States 512F.2d 1383,1387-88 (Ct. CI. 1975) (citations omitted).  The Board has significant power to grant relief. This Board may, for example, order reinstatement and back pay.  See, e.g., Knehans v. Alexander 566F.2d 312, 315 (D.C. Cir. 1977); Chappell v. Wallace, 462 U.S. 296, 303 (1983) (Board is empowered under 10 U.S.C. Section 1552(c) to order retroactive pay and promotion); 10 U.S.C. 1552(c) (Secretary may pay claims for lost pay, allowances, etc., as the result of a record correction). 

Counsel then discusses the law regarding determination of the appropriate retirement grade.  He states that the procedures and standards governing the determination of retirement grades are outlined In 10 U.S.C. 1370 and Army Regulation 15-80.  Under 10 U.S.C. 1370, “a commissioned officer of the Army who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department involved, for not less than six months. 

Counsel points out that Army Regulation 15-80 contains the Army's standards and procedures on grade determinations and that the Secretary of the Army can convene an Army Grade Determination Review Board under 10 U.S.C. 1370 and its procedures will be governed by AR 15-80.  He further sets forth that Paragraph 7 of AR 15-80 defines what service is considered "unsatisfactory" for purposes of AGDRB review: AR 15-80 as follows, in pertinent part: 

	“7. Unsatisfactory service:

	Generally, service in a grade will not be considered to have been satisfactory when--

		a. The highest grade or rank was the result of a terminal leave promotion. 

		b. Reversion to a lower grade[footnote 3] was-

		(1) Expressly for prejudice or cause. 
		(2) Due to misconduct. 
		(3) Caused by non-judicial punishment pursuant to Article 15, 				Uniform Code of Military Justice (UCMJ). 
		(4) The result of a court-martial. 

		c. There is sufficient unfavorable information to establish that the soldier's service in the grade in question was not satisfactory.  One specific act of misconduct may form the basis for a determination that the overall service in that grade was not satisfactory, regardless of the time period served in grade. However, service retirement in lieu of or as a result of elimination action will not, by itself, preclude retirement in the highest grade. 

	[Footnote 3 was prepared by counsel for the applicant and states:  “This 	section, by its terms, applies to reductions in grade prior to the 	deliberations of the grade determination board.  Since [the applicant’s 	retired rank and name omitted] rank was never reduced for any reason 	while on active duty, this provision does not apply.”]

Counsel for the applicant also points out that Paragraph 8 of AR 15-80 also states the following considerations regarding whether service in a grade is "satisfactory": 

	“Circumstances pertinent to whether such service is found satisfactory in the overall sense include but are not limited to the following: 

		a. Medical reasons, which may have been a contributing or decisive 			factor in a reduction in grade. 
		b. Compassionate circumstances. 
		c. Length of time in grade.
		d. Performance level 
		e. Other factors.” 

Counsel then argues that the two-rank reduction of [the applicant’s retired rank and name omitted] from major general to colonel was contrary to law.  Essentially he contends that the Secretary of the Army did not correctly consider the applicant’s “overall service.”  

In the specific, counsel argues that, in determining in which grade [the applicant’s retired rank and name omitted] should retire, the Secretary of the Army was required to apply the standards set out in AR 15-80 to evaluate the highest grade in which the applicant’s service was “satisfactory."  Counsel further states that two things stand out in this regulation governing grade determinations:  “the emphasis on measuring satisfactory service “overall” and the specific direction that factors other than misconduct be considered in measuring whether service overall has been “satisfactory.”  Counsel asserts that Paragraph 8 of AR 15-80 provides that “circumstances pertinent to whether such service is found satisfactory in the overall sense to include “performance level” and “length of time in grade,” among other factors.  He then concludes that the regulation is therefore unmistakable in its instruction that the character of an officer's service throughout his entire time in grade should be considered in evaluating whether such service was “satisfactory” for grade determination purposes.  Counsel then summarizes the applicant’s service:  

	[The applicant’s retired rank and name omitted] “overall service from 1993 to 1995 (Brigadier General) and from 1995 until his retirement in 1999 (Major General) was nothing short of extraordinary.  He received the highest possible marks and evaluations in his time as a general officer, was awarded the Distinguished Service Medal for the period June 1995-June 1997 and was clearly one of the most highly regarded Generals serving in the Army, and destined, as many of his evaluators stated, for the highest possible rank in the Army.  There was not a whisper of complaint about any aspect of [the applicant’s retired rank and name omitted] service for those six years as a general, save the incidents that were the subject of non-judicial punishment--two consensual relationships.  He not only consistently was awarded the highest decorations, his evaluators uniformly considered him to be one of the finest officers in the Army.  Given this unparalleled record of achievement, the finding of unsatisfactory service could only meet the standards of the regulation if it was concluded that the misconduct that led to [the applicant’s retired rank and name omitted] non-judicial punishment was so severe and so egregious that it rendered the entirety of the rest of his service in those grades “unsatisfactory.”  Since AR 15-80, Paragraph 8 states that time in grade and performance level are both factors to consider in making this determination, based on [the applicant’s retired rank and name omitted] record, his overall service as a Brigadier General and Major General must reasonably be considered "satisfactory," as the questionable conduct was not even the subject of a court-martial.  The Secretary of the Army’s judgment to the contrary was not supported by the weight of the evidence, and was therefore contrary to law.” 

Counsel for the applicant then sets forth the argument that the Secretary of the Army used the grade determination process to punish the applicant.  Counsel further explains the reason for the Secretary of the Army’s unprecedented conclusion that the applicant’s overall service as a general officer was "unsatisfactory" is revealed by his very words in announcing the action.  Specifically counsel states the Secretary of the Army wanted to "send a very clear message" that there was "no place in the Army" for the applicant’s behavior and emphasized the financial ramifications of his decision which amounts to over $1 million dollars over the course of the applicant’s lifetime.  Counsel further argues that, instead of determining the highest grade in which the applicant’s overall service was satisfactory, the Secretary of the Army sought to further punish the applicant.

Counsel then asserts that there are several proper means by which the Army can exact punishment on a service member who has acted contrary to law, regulation, or other tenet of Army service.  He argues that the authorized means of punishment under Title 10, United States Code, and Army regulations, include prosecution for a violation of the Uniform Code of Military Justice, the imposition of non-judicial punishment under Article 15, issuance of a letter of reprimand, and other similar mechanisms.  Counsel explains that the applicant was subjected to non-judicial punishment for his conduct by his superior officer on 29 September 1999 and points out that notably absent among the authorized means of punishment is post-hoc reduction in rank upon retirement by means of a grade determination under 10 U.S.C. 1370 and Army Regulation 15-80.”

Counsel then asserts that the surrounding circumstances at the time, unrelated to the applicant, go a long way toward explaining the Secretary of the Army’s actions.  Specifically, he explains that shortly before the applicant’s non-judicial punishment, another Army major general [hereafter identified as MG DH] was convicted at a general court-martial of seven specifications of conduct unbecoming an officer and one specification of making a false official statement with the intent to deceive.  Counsel for the applicant asserts that MG DH’s conduct involved intimate relationships with the spouses of four subordinate officers, in circumstances not free of coercion, and also lying about them to superiors.  Counsel further points out that, subsequently, MG DH was reduced one rank from Major General to Brigadier General upon retirement and that this action by the Secretary of the Army occurred on 2 September 1999 just as the applicant submitted his request for resignation.  Finally, counsel points out that MG DH’s conviction is a felony offense, which carries with it certain restrictions on voting, the holding of office, etc.

Counsel for the applicant then essentially argues that, in view of the criticism of the decision which allowed MG DH to be retired as a Brigadier General and in view of the criticism surrounding other Army sexual misconduct cases that year, it is readily apparent that the Secretary of the Army was under enormous pressure to "send a message (his very words).”  Further, counsel asserts that, with authorized punishment procedures under the Uniform Code of Military Justice already concluded in the applicant’s case, the Secretary of the Army “improperly used the grade determination process to send his message and probably seek to distance himself from the criticism.”  Counsel then concluded that, while the Secretary of the Army enjoyed the authority to convene a grade determination board, he did not have the authority to utilize that grade determination board, or his authority to determine the highest grade of satisfactory service for retirement purposes, to circumvent the military justice process and punish the applicant again. 

Counsel then argues that the actions by the former Secretary of the Army amounted to implied (if not explicit) double-jeopardy.  He asserts that the Secretary's action followed the recommendation of the grade determination board convened by him, whose recommendation was that the highest grade in which MG DH had served satisfactorily was Brigadier General.  In the case of the applicant, counsel states that it is impossible for the ABCMR to know if the Secretary of the Army concurred with or overruled the recommendation of the grade determination board since the grade determination board's recommendation in the applicant’s case was never released. 

Counsel for the applicant further argues that the very purposes of the disciplinary architecture of the Army would be frustrated if the Secretary could use grade determinations to exact punishment.  He asserts that there would, in effect, be no statute of limitations for any disciplinary violation, and no soldier could take comfort that the sentence (or absence of sentence) of a court-martial or an Article 15 proceeding was the final word on the subject.  Counsel states in conclusion:

	“Indeed, the Secretary's misuse of a grade determination board to exact punishment ("the two-grade reduction...should send a very clear message that there is no place in the Army or this behavior”) (emphasis added) could conceivably open up an entirely new avenue of stand-alone punishment, and since the findings of the grade determination board need not be disclosed, since the officer cannot appear personally before the grade determination board's deliberations, AR 15-80, 111) and since the Secretary need not explain the reason, there would be absolutely no recourse, and certainly no due process.”

Counsel for the applicant then sets forth the argument that the two-rank reduction of the applicant was unjust under the circumstances.  He explains that, when measured on its own, as well as in comparison to other grade determinations, the case of the applicant is clearly unprecedented and disproportionate, and works an injustice not at all justified by the circumstances.  

Counsel then addresses the issue of “disproportionality.”  He argues that MG DH’s conduct was more serious than the applicant’s because MG DH was convicted by court-martial while the applicant accepted nonjudicial punishment under Article 15 of the UCMJ and, most significantly, MG DH was convicted not only for his relationships, but also for lying about them, and as the Army conceded, there was absolutely no evidence of coercion in either of the applicant’s relationships, in marked contrast to MG DH’s case.  Counsel states that, in addition, the applicant’s relationships were dated, but he nonetheless agreed to waive any statute of limitations defense, in order to accept responsibility for his actions, thereby permitting the Army to resolve the matter in as quiet and nonadversarial manner as possible.

Counsel next asserts that the application of the standard was clearly wrong if one uses the experience of the case of MG DH and the Secretary of the Army’s treatment of it as a guideline.  He argues that the conduct for which MG DH was convicted by court-martial and which formed the basis of the decision of the grade determination board occurred exclusively during his service as a major general; hence, the grade determination board concluded that the highest grade at which MG DH’s service was "satisfactory” was brigadier general.  Counsel states, however, the two relationships which led to the applicant’s nonjudicial punishment occurred from December 1991 to July 1992, when the applicant was a colonel, and from December 1995 until July 1997, when he was a brigadier general and a major general.  He concludes that, if the Secretary of the Army's standards for reducing an officer's grade under 10 U.S.C. 1370 and Army Regulation 15-80 are misconduct while in grade renders that grade unsatisfactory, as is evident from the case of MG DH, then the Secretary should have reduced the applicant three grades, from major general to lieutenant colonel.  Counsel further contends that the fact that he did not do so illustrates, by definition, that in the Secretary of the Army's judgment, the 1991-1992 relationship did not render the applicant’s “overall service as a Colonel unsatisfactory.”

Counsel then states that, given this conclusion, the 1995-1997 relationship should not render his overall service as a general officer for six years unsatisfactory.  Further he contends that certainly, the applicant’s level of contribution as Vice Director of Operations for two years, a position he officially assumed after the conclusion of the later of his relationships, was significant enough, and of an unparalleled achievement, to make at least some portion of his service as a general officer "satisfactory in the eyes of the Army.” 

Counsel then states that, under all of the circumstances, the Secretary of the Army's action was unjust.  He argues that this outstanding officer, who was one of the very few officers destined to achieve the highest possible rank and position in the Army, had two consensual relationships, and his career ended as a result, according to authorized means and with his full cooperation, including his waiver of any statute of limitations defense, his acceptance of non-judicial punishment, and his voluntary resignation.  Counsel contends that to conclude that this fine general officer, who even now continues to devote himself to the most sensitive and most important national security work that exists, must sacrifice more than $1 million in retirement pay and sacrifice two stars to retire as a colonel, is to negate the length, breadth and significance of his six years as a general officer.  Counsel continues that if for no other reason, the Secretary of the Army's action was too severe and works too much of an injustice to the record of the applicant  for the Board to let it stand.  He concludes that “justice and fairness dictate that the Board take corrective action.”

Counsel concludes his brief as follows:

	“The Board has good reason to grant the requested relief.  The Secretary’s action was contrary to, and unsupported by the evidence.  Alternatively, the Board should find that it was an injustice to reduce [the applicant’s retired rank and name omitted] two ranks upon retirement, especially in light of his outstanding and distinguished (and continuing) service and level of contribution to his country, and the fact that he was already punished for his conduct. The Board should reinstate [the applicant’s retired rank and name omitted] to the rank of Major General, and award all back pay and allowances to which [the applicant’s retired rank and name omitted] is entitled, and grant any other relief as justice requires.” 

EVIDENCE OF RECORD:  The applicant's military records show:

That the applicant was appointed a second lieutenant effective 8 July 1970.  He commanded infantry and Ranger companies and served in a number of battalion staff positions.  He commanded infantry and Ranger battalions and at the brigade level.  The applicant attended the Armored Officer Advance Course, the Command and General Staff Officer Course and the Army War College.  He was promoted to Brigadier General on 1 September 1993 and subsequently served as an Assistant Division Commander and as the Deputy Commandant of the Infantry Center.  He was promoted to Major General on 1 October 1996 while in command of an infantry division.  The applicant received numerous decorations including the Distinguished Service Medal, four awards of the Legion of Merit, the Bronze Star Medal, six awards of the Meritorious Service Medal and award of the Army Commendation Medal.

Records show that the applicant was assigned as the Vice Director for Operations, Organization of the Joint Chiefs of Staff (OJCS), in Washington, D.C., effective 23 June 1997.

The applicant’s counsel provided a copy of a 3 June 1998 memorandum from the Acting Secretary of the Army through the Chairman of the Joint Chiefs of Staff to the Secretary of Defense.  In this memorandum, the Secretary of the Army and the Chief of Staff of the Army conveyed their endorsement of the nomination of the applicant to lieutenant general and his assignment as the Commanding General of United States Army Pacific.

Records show that, effective 21 September 1999, the applicant was reassigned from his position as Vice Director of Operations, OJCS, to the position of Special Assistant to the Commanding General of the First United States Army at Fort Gillem, Georgia.

A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows that, on 29 September 1999, the Army lieutenant general in command of First United States Army considered whether the applicant should be punished under Article 15 of the UCMJ for three instances of misconduct.  The specific violations of the UCMJ alleged were listed in item 1 and on a continuation sheet:

	“At Fort Benning, Georgia, from on or about December 7, 1991 to about July 1992, while you were assigned as the Commander, Ranger Training Brigade (RTB), U.S. Army Infantry School, Fort Benning, Georgia, you did engage in an improper sexual relationship with Mrs. A., who at the time was married to subordinate commissioned officer assigned to the RTB under your command.  This is a violation of Article 133, UCMJ.

	At Hawaii, from on or about December 1995 to about July 1997, while you were assigned as the Commanding General of the 25th Infantry Division (Light), you did engage in an improper sexual relationship with Mrs. B., who at the time was married to a subordinate commissioned officer assigned to the 25th Infantry Division (Light) under your command.  This is a violation of Article 133, UCMJ.

	At Fort Benning, Georgia, on or about April 1995, you did attempt to engage in an improper personal relationship with Specialist C., a female soldier assigned to the Infantry Training Brigade, Fort Benning, Georgia.  If you had actually engaged in the improper personal relationship, this conduct would have violated UCMJ Article 133.  This is a violation of Article 80, UCMJ.”

Item 2 of the DA Form 2627, advised the applicant of his rights in a Article 15 proceeding, specifically his rights not to make any statements, to have an open hearing, to have a person to speak on his behalf, to present witnesses or other evidence to show why he should not be punished at all or why the punishment should be very light, to demand a trial by court-martial and to consult with legal counsel.  The Commanding General of First United States Army authenticated items 1 and 2 with his signature and the date and time, “29 Sep 99 1130.”

The applicant indicated in item 3 with his initials that he did not demand a trial by court-martial, that he requested a closed hearing, and that matters in defense, mitigation and/or extenuation will be presented in person.  The applicant authenticated his initials and his decisions in block 3 with his signature and by entering the date, “29 Sep 99.”

In item 4 of the DA Form 2627, the Commanding General of First United States Army indicated that in a closed hearing, after considering all matters presented, he imposed punishment.  The DA Form 2627 shows the punishment imposed:

	“Forfeiture of $4316.00 per month for two months.  Written Reprimand.”

The Commanding General of First United States Army directed in item 5 of the DA Form 2627 that it be filed in the applicant’s “Performance fiche.”  In item 6 he advised the applicant of his right to appeal to the Commanding General of Forces Command within five calendar days.  The Commanding General of the First United States Army authenticated his actions in items 4 through 6 with his signature and the date, “29 Sep 99.”

The applicant placed his initials in item 7a indicating “I do not appeal.”  The applicant authenticated item 7 with his signature and the date, “29 Sep 99.

Item 11 of the DA Form 2627 shows the allied documents and/or comments related to this nonjudicial punishment.  This item contains the following entries:

	“Sworn statement by [the applicant’s rank and name omitted], 30 Aug 99; statements of four individuals from Department of the Army Inspector General Report of Investigation 99016, with personal identifiers of witnesses omitted; and, one witness statement, with personal identifiers omitted, submitted by [the applicant’s rank and name omitted].”

The sworn 30 August 1999 statement submitted by the applicant stated in pertinent part:

“II FACTS, UCMJ ARTICLES VIOLATED AND WAIVED DEFENSE

a.  Mrs. A.  In October 1991, while I was assigned as the Commander, Ranger Training Brigade, U.S. Army Infantry School, Fort Benning, GA, I began an improper personal relationship with Mrs. A, who at the time was married to a subordinate commander that I rated and supervised.  My first improper action was to kiss Mrs. A on the lips and suggest that I was physically attracted to her while we were at an off-site conference in Dahlonega, GA.  From December 7, 1991, until approximately July 1992, I engaged in many consensual sexual encounters with Mrs. A.  The sexual encounters involved oral sodomy, in violation of Uniform Code of Military Justice (UCMJ) Article 125, but did not involve sexual intercourse.  The sexual misconduct occurred in the woods on or in the vicinity of Fort Benning.  I agree that my actions constituted conduct unbecoming an officer and violated UCMJ Articles 125 and 133. I understand that I am not liable to trial by court-martial for the offenses involving Mrs. A because the statute of limitations is five years for trial by court-martial (UCMJ Article 43(b)(1)) and two years for nonjudicial punishment (UCMJ Article 43(b)(2)).  My lawyer has explained this defense to me.  I specifically waive the statute of limitations with respect to nonjudicial punishment and agree to disposition of these offenses under UCMJ Article 15.

b.  Mrs. B.  In 1994, Mrs. B's husband and I were both assigned to Fort Benning.  I kissed Mrs. B on the mouth, but our relationship did not go further in a sexual sense while I was assigned to Fort Benning.  The first time Mrs. B and I had consensual sexual intercourse was at her off-post quarters in December 1995 in Hawaii.  From December 1995 until the summer of1997, I engaged in many consensual sexual encounters with Mrs. B. Some sexual activity occurred at my quarters when my wife was away.  All the sexual activity occurred in Hawaii, except one incident just after I changed command in 1997.  The sexual encounters involved oral sodomy and sexual intercourse in violation of UCMJ Articles 125 and 134. I agree that my actions constituted conduct unbecoming an officer and violated UCMJ Article 133. 

c.  SPC C.  In April 1995, I attended a ball sponsored by the Infantry Training Brigade. I danced with a woman dressed in civilian clothing several times.  Later the following week, I subsequently called her work place.  I also called her residence on two occasions and left taped messages indicating that I was sorry I missed her and that I was hoping to talk to her.  I do not remember when I learned she was an enlisted soldier but I do not believe it was at the ball.  I had no professional or military reason for calling SPC C at her home.  I decided to terminate my interest in her without actually engaging in a personal, unprofessional relationship. My intent when I telephoned her residence was to initiate a personal, unprofessional relationship with her that is prohibited by Article 133. This conduct is in violation of UCMJ Article 80 because it is an attempt to commit conduct unbecoming an officer. 

d.  Other misconduct.  Although the DAIG did not substantiate any misconduct other than that discussed in part II a-c above, I want to reinforce this determination.  I did not engage in sexual relationships with the other women who were questioned and who denied that they had sexual relationships with me, nor did I place my hand upon the buttocks of SPC C while we were dancing. 

III. USES AND LIMITED ADMISSIBILITY

This statement is admissible as a stipulation of fact at my nonjudicial punishment proceeding held pursuant to UCMJ Article 15.  It is also admissible as part of any Grade Determination Board (GDB) proceeding or for consideration by the official who may impose any administrative letter of reprimand upon me.  If the Article 15 is not completed, it is not admissible in any proceeding or administrative process.  I am making this statement under Military Rule of Evidence 410 and have been assured by the Office of The Judge Advocate General that it will not be used against me at any court-martial or administrative proceeding accept as indicated above because it is part of a pretrial negotiation. 

IV. PLEAS AT ARTICLE 15 PROCEEDING 

I agree to plead guilty to two specifications of conduct unbecoming an officer and one specification of attempted conduct unbecoming an officer.  I also agree that this statement alone provides sufficient evidence to prove my guilt of these specifications beyond a reasonable doubt. 

V. FOIA RELEASABILITY 

I do not consent to the release of this statement to any requestor seeking a copy of this statement pursuant to the Freedom of Information Act or Privacy Act. 

VI. ASSISTANCE OF COUNSEL 

	I have been fully advised of my legal rights under UCMJ Article 31 by Lieutenant Colonel [name omitted], U.S. Army Trial Defense Service, prior to making this statement.  I am satisfied with LTC [name omitted] advice and assistance on my behalf.  This statement and my pleas as stated herein are freely made. This statement is not the product of coercion or unlawful influence. 

VII. REASON FOR MAKING STATEMENT 

	I am making this statement because I believe it is my own best interests, as well as the best interests of Mrs. A, Mrs. B and SPC C, and their families. 

VIII. CONCLUSION 

	I am truly sorry for what I have done and deeply regret the pain I have caused to the many people who have loved, trusted and supported me during my 29 years of military service.  I apologize to my military superiors for betraying the faith that they placed in me and especially to my peers and subordinates because of the discredit my conduct has caused the Army.  I also apologize to the women involved in these matters and to their families. Beyond all others, I apologize to my wife.  I have caused her a .tremendous amount of grief and she and I are now working hard attempting to rebuild our marriage.”
The applicant’s records contain a memorandum addressed to the applicant from the Commanding General of First United States Army.  This memorandum is dated 29 September 1999 and its subject is:  “Punitive Memorandum of Reprimand, Art. 15, UCMJ.  The memorandum states:

	“1.  Statements from you and witnesses establish beyond reasonable doubt that you violated Articles 80 and 133 of the Uniform Code of Military Justice:

		At Fort Benning, Georgia, from on or about December 7, 1991 to about July 1992, while you were assigned as the Commander, Ranger Training Brigade (RTB), U.S. Army Infantry School, Fort Benning, Georgia, you did engage in an improper sexual relationship with Mrs. A., who at the time was married to a subordinate commissioned officer assigned to the RTB under your command.  This is a violation of Article 133, UCMJ.

		At Hawaii, from on or about December 1995 to about July 1997, while you were assigned as the Commanding General of the 25th Infantry Division (Light), you did engage in an improper sexual relationship with Mrs. B., who at the time was married to a subordinate commissioned officer assigned to the 25th Infantry Division (Light) under your command.  This is a violation of Article 133, UCMJ.

		At Fort Benning, Georgia, on or about April 1995, you did attempt to engage in an improper personal relationship with Specialist C., a female soldier assigned to the Infantry Training Brigade, Fort Benning, Georgia.  If you had actually engaged in the improper personal relationship, this conduct would have violated UCMJ Article 133.  This is a violation of Article 80, UCMJ.

	2.  As a senior Army leader, you are expected to conduct yourself personally and professionally in a manner consistent with the highest standards of conduct and to set an example for all soldiers to emulate.  Instead, your behavior demonstrated a serious lack of judgment, and self-discipline, and brought you into disrepute with subordinates under your command.  Just as importantly, you violated core Army values -- duty, respect, honor, integrity.  You have dishonored and disgraced yourself as an officer.  You have compromised your character as a general officer and damaged the reputation of the officer corps.

	3.  For placing your personal gratification above that of your duty to adhere to the law, I reprimand you for your despicable conduct.

	4.  This punitive reprimand is imposed as punishment under the provisions of Article 15 Uniform Code of Military Justice.  This reprimand will be filed in the Performance Fiche of your Official Military Personnel File (OMPF).”

The applicant’s records contain a 16 September 1999 memorandum from the applicant to the Chief of Army General Officer Management Office at the Pentagon.  In this memorandum, the applicant requested voluntary retirement with release from active duty effective 31 December 1999 and placement on the retired list effective 1 January 2000. 

Paragraph 11 of the applicant’s 16 September 1999 request for retirement stated:

	“11.  I have read and understand the provisions of AR [Army Regulation] 600-8-24 (Officer Transfers and Discharges), para [paragraph] 6-1(c), pertaining to determination of my retired grade.  Considering those provisions, and after review of my records, I believe that I am entitled to retire in the grade of major general.  I understand that final determination of my retired grade will be determined by the HQDA [Headquarters, Department of the Army], and that I will be informed if I am not entitled to retire in the grade I have specified in this paragraph.”

Army News Release #99-108 states that, on 1 October 1999, the Secretary of the Army directed appointment of a grade determination board to make a recommendation on the grade at which the applicant should be retired.  The Army Review Boards Agency notified the applicant of the grade determination hearing and the applicant, on 15 October 1999, provided his memorandum to the AGDRB requesting retirement as a major general.  

The AGDRB convened on 27 October 1999 and made its recommendation to the Secretary of the Army.  The applicant’s records contain a memorandum, dated 9 November 1999, from a former Secretary of the Army to the Chief of the General Officer Management Office which stated:

	“Under the provisions of AR 15-80 I have determined the highest grade in which Major General [applicant’s name omitted] served satisfactorily was colonel/O-6.” 

The applicant’s records contain U.S. Total Army Personnel Command Orders S167-4, dated 17 November 1999 which separated the applicant from active duty effective 31 December 1999 and placed him on the retirement list effective 1 January 2000.  

Title 10, United States Code, Section 1370 governs the retired grade of commissioned officers.  Section 1370 (a) states the rule for retirement in the highest grade held satisfactorily.  This provision of law essentially states that, unless entitled to a higher grade by some other provision of law, a commissioned officer of the Army, Navy, Air Force or Marine Corps who retires under any provision of law other than chapter 61 (Retirement or Separation for Physical Disability) or chapter 1223 (Retired Pay for Non-Regular Service) of Title 10 shall be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the Military Department concerned, for not less than six months. 

Army Regulation 15-80 (Army Grade Determination Review Board) governs the actions and composition of the Army Grade Determination Review Board (AGDRB) established by General Order Number 16, dated 16 July 1985.  The regulation states that this board determines or recommends the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability.

Paragraph 4 of Army Regulation 15-80 states that the Secretary of the Army retains the prerogative to accomplish grade determination without referral to the Army Grade Determination Review Board.

Paragraph 7 of Army Regulation 15-80 covers “unsatisfactory service” and states that service in a grade will not be considered to have been satisfactory when:  

	a.  The highest grade or rank was a result of a terminal leave promotion; 

	b.  Reversion to a lower grade was expressly for prejudice or cause, due to misconduct, caused by nonjudicial punishment pursuant to Article 15, Uniform code of Military Justice (UCMJ) or the result of the sentence of a court-martial;  

	c.  There is sufficient unfavorable information to establish that the soldier’s service in the grade in question was not satisfactory.  One specific act of misconduct may form the basis for a determination that the overall service in that grade was not satisfactory, regardless of the period of time served in grade.  However, service retirement in lieu of or as a result of elimination action will not by itself, preclude retirement in the highest grade.

Paragraph 8 of Army Regulation 15-80 provides grade determination considerations.  It states essentially that the AGDRB will consider each case on its own merits and is allowed substantial discretion in reaching its decision.  The regulation further provides that the circumstances pertinent to determining satisfactory service include but are not limited to medical reasons, compassionate circumstances, length of time in grade, performance level and other factors.

The Manual for Courts-Martial contains Military Rules of Evidence and in specific Rule 410 (Inadmissibility of pleas, discussions, and related statements) as follows:

	(a) In general.  Except as otherwise provided in this rule, evidence of the following is not admissible in any court-martial proceeding against the accused who made the plea or was a participant in the plea discussions:  

		(1) a plea of guilty which was later withdrawn;

		(2) a plea of nolo contendere; 

		(3) any statement made in the course of any judicial inquiry 	regarding either of the foregoing pleas; or 

		(4) any statement made in the course of plea discussions with the convening authority, staff judge advocate, trial counsel, or other counsel for the Government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.  However, such a statement is admissible (i) in any proceeding where in another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a court-martial proceedings for perjury or false statement if the statement was made by accused under oath, on the record and in the presence of counsel.

	(b)  Definitions.  A ‘statement made in the course of plea discussions’ includes a statement made by the accused solely for the purpose of requesting disposition under an authorized procedure for administrative action in lieu of trial by court-martial; ‘on the record’ includes the written statement submitted by the accused in furtherance of such request.”

The Manual for Courts-Martial provides an analysis of Rule of Evidence 410 (Inadmissibility of pleas, discussions, and related statements).  This analysis states:

	“Rule 410 as modified effective 1 August 1981 is generally taken from the Federal Rule as modified on 1 December 1980.  It extends to plea bargaining as well as to statements made during a providency inquiry, civilian or military. E.g., United States v. Care, CMA 535 (1969).  Subsection (b) was added to the Rule in recognition of the unique possibility of administrative disposition, usually separation, in lieu of court-martial.  Denominated differently within the various armed forces, this administrative procedure often requires a confession as a prerequisite.  As modified, Rule 410 protects an individual against later use of a statement submitted in furtherance of such a request for administrative disposition.  The definition of ‘on the record’ was required because no ‘record’ in the judicial sense exists insofar as request for administrative disposition is concerned.  It is the belief of the Committee that a copy of the written statement of the accused in such a case is, however, the functional equivalent of such a record.  Although the expression ‘false Statement’ was retained in the Rule, it is the Committee’s intent that it be construed to include all related or similar military offenses.”  

The Manual for Courts-Martial contains a maximum punishment chart.  This chart shows that the maximum sentence for violation of Article 133 (Conduct unbecoming officer) is dismissal, confinement for one year or as prescribed, and total forfeiture of pay and allowances.  In accordance with paragraph 4e of Part IV, the violation of Article 80 is punishable by the same maximum punishment as authorized for commission of the offense attempted, specifically in this case a violation of Article 133 (Conduct unbecoming officer). 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board reviewed all of the information submitted by the applicant and his counsel to include counsel’s brief with Tabs 1 through 25 and the applicant’s OMPF.

2.  The Board noted the applicant’s service as described in his OER’s and his award citations and noted his rapid advancement to major general.

3.  The Board also noted the nature of the applicant’s misconduct which included improper sexual relationships with wives of subordinate officers under his command over several years (1991-1992 and 1995-1997) and an attempted improper relationship with an Army enlisted soldier which occurred in April 1995.

4.  The Board reviewed counsel’s brief and noted his two principal contentions were that the former Secretary of the Army’s grade determination decision in the applicant’s case was “contrary to law” and was “unjust.”

5.  The Board considered counsel’s contention that the grade determination decision of the Secretary of the Army was contrary to law and noted that counsel argues from two perspectives, specifically that the Secretary of the Army’s judgment that the applicant’s service as general officer was not satisfactory was “not supported by the weight of the evidence, and was therefore contrary to law” and that the Secretary of the Army “used the grade determination process to punish” the applicant.  

6.  In regard to the contention that the Secretary of the Army’s grade determination decision was contrary to law, the Board noted counsel’s position that the Secretary of the Army was required to consider the applicant’s overall service as required by Army Regulation 15-80, specifically that he must measure satisfactory service “overall” and that factors other than misconduct must be considered in measuring whether service overall has been satisfactory.  The Board also noted the following facts and arguments made by counsel to support his proposition that the applicant’s service as a general officer was “satisfactory”:

	a.  Counsel described the applicant’s record of OER’s, his decorations, his rapid advancement, and his potential for higher rank and concluded that his service was ”extraordinary.”

	b.  Counsel argued that “there was not a whisper of complaint about any aspect of [the applicant’s rank and name omitted] for those six years as a general, save the incidents that were the subject of nonjudicial punishment--two consensual relationships.”  Further, counsel asserted that the applicant “not only consistently was awarded the highest decorations, his evaluators uniformly considered him to be one of the finest officers in the Army.”

	c.  Counsel also argued that given the applicant’s “unparalleled record of achievement, the finding of unsatisfactory service could only meet the standards of the regulation if it was concluded that the misconduct that led to [the applicant’s retired rank and name omitted] non-judicial punishment was so severe and egregious that it rendered the entirety of the rest of his service in those grades ‘unsatisfactory’.”  

	d.  Counsel concluded by stating that the applicant’s “overall service as a Brigadier General and a Major General must reasonably be considered ‘satisfactory’ as the questionable conduct was not even the subject of a court-martial” and further that [The name of the former Secretary of the Army omitted] “judgment to the contrary was not supported by the weight of the evidence, and was therefore contrary to law.”
7.  In addressing the contention by the applicant and his counsel that the Secretary of the Army’s grade determination decision was contrary to law because it “was not supported by the weight of evidence”, the Board made several determinations:

	a.  The Board does not contest counsel’s assessment that the applicant performance of military duty was “extraordinary.”  

	b.  The Board does not agree with counsel’s logic that the applicant’s performance of military duties is separate and distinct from the applicant’s professional and personal conduct or the inference that “two consensual relationships” are not serious offenses.

	c.  The Board determined that had the applicant’s rater’s, senior raters, superiors, peers and subordinates known that he was having sexual relations with wives of officers under his command, they would not have rendered superlative OER’s on the applicant, they would not have recommended him for decorations or promotion, and they would not have held him in high esteem.

	d.  The Board’s assessment of the applicant’s service, based on the evidence presented and based in part on the applicant’s own admission, is that his improper relationships while he was serving as a senior officer (colonel, brigadier general and major general) in positions of great responsibility was unbecoming that of an Army officer, was in violation of law and regulation, reflected poorly on his professional and personal integrity and values, and substantially negated the overall quality of his performance as an officer and the overall quality of his service as a colonel, brigadier general, and major general.  

	e.  The Board determined the argument by counsel that the applicant’s service as a general officer must be considered satisfactory because the charges were not referred to court-martial is without merit.  In this matter, the Board found that the chain of command elected to handle the applicant’s violations with nonjudicial punishment, instead of trial by court-martial.  The Board further found that the decision by the general court-martial convening authority was to the applicant’s advantage in view of the maximum punishment (dismissal, confinement and total forfeiture of pay and allowances) he could have received at trial by court-martial for violations of Articles 133 and 80.

	f.  Although the Board has not reviewed the proceedings of the AGDRB, the recommendation by the AGDRB to the former Secretary of the Army and the documentation which he personally reviewed, it is clear to this Board that the former Secretary of the Army had all of the factual information before him to properly assess the quality of the applicant’s overall service as a colonel, a brigadier general and major general.  Specifically, the Board noted that the former Secretary of the Army had access to all the records regarding the applicant’s performance of duty and his misconduct, he had the recommendation of the senior Army officials who were members of the AGDRB, he had the recommendation of the Chief of Staff of the Army, and he had access to the The Judge Advocate General of the Army and the Army General Counsel for legal advice to assist him in arriving at a proper, fair and equitable decision in this case. 

	g.  The Board also noted that the law (10 U.S.C. 1370) in this case gives exclusive discretion to the Secretary of the Military Department concerned to determine the highest rank in which a commissioned officer served satisfactorily. Further, Army Regulation 15-80 provides guidance for the deliberations and recommendations of the AGDRB; however, the Board noted that the Secretary of the Army is not bound in any way by the recommendation of the AGDRB.

8.  Based on the foregoing, this Board determined that the applicant and his counsel have not presented evidence and/or argument which is sufficient to prove that the Secretary of the Army’s grade determination decision in this case was contrary to law.

9.  The Board also considered the contention by the applicant and his counsel that Secretary of the Army used the grade determination process to punish the applicant.  In this matter, the Board noted that counsel presented several arguments:

	a.  Counsel first discussed his rationale for the Secretary of the Army’s “unprecedented conclusion” that the applicant’s service as a general officer was unsatisfactory.  Essentially, counsel inferred that the Secretary of the Army made an example of the applicant in order to “send a very clear message” there was no place in the Army for the applicant’s behavior and that, as a result, the applicant stood to lose over $1 million dollars over the course of his retirement.  Counsel concluded that these statements indicated that, instead of determining the highest grade in which the applicant’s service was satisfactory, the Secretary of the Army sought to further punish the applicant.

	b.  Counsel also essentially argued that there are several ways in which the Army can exact punishment on a soldier, but notably absent among these means is “post-hoc reduction in rank upon retirement by means of a grade determination under 10 U.S. C. 1370 and AR 15-80.”

	c.  Counsel also stated that the case of MG DH occurred at the same time as that of the applicant.  He further asserts that the “avalanche of criticism” surrounding the handling of MG DH’s case placed the former Secretary of the Army under “enormous pressure to send a message.”  Counsel argues that, with nonjudicial punishment already concluded in the applicant’s case, the “Secretary of the Army improperly used the grade determination process to send his message and probably seek to distance himself from the criticism.”  Counsel further argues essentially that the former Secretary of the Army did have authority to convene an AGDRB, but that he did not have the authority to use the AGDRB or his authority to determine the highest grade satisfactorily held to circumvent the military justice process and punish the applicant again which amounted to “implied, if not explicit, double jeopardy.” 

	d.  Counsel also argues that the disciplinary architecture of the Army would be “frustrated” if the Secretary of the Army could use grade determinations to exact punishment.  He contends that there would be no statute of limitations for disciplinary actions and that the sentence or absence of a sentence would be the final word.  Counsel asserts that the Secretary of the Army’s misuse of grade determination to exact punishment (“the two-grade reduction”) could conceivably open up an entirely new avenue of stand-alone punishment.  He further contends that since an officer cannot appear before the AGDRB and since the findings of the AGDRB need not be disclosed, and since the Secretary of the Army need not explain the reason for his decisions, “there would be absolutely no recourse and certainly no due process.” 

10.  In addressing the contention by the applicant and his counsel that the former Secretary of the Army used the grade determination process to further punish the applicant, the Board examined all the pertinent evidence and concluded:

	a.  The contention that the former Secretary of the Army sought to further punish the applicant instead of determining the highest grade held is without merit.  Evidence of record shows that the former Secretary of the Army directed an AGDRB be convened to make a recommendation on the highest grade satisfactorily held by the applicant.  The former Secretary of the Army considered the recommendation of that panel of senior Army officials as well as recommendations from the Chief of Staff of the Army and appropriate legal advisors.  After considering all the evidence and the recommendations, the former Secretary of the Army rendered a decision which he is empowered to make under the law, specifically that the highest grade in which the applicant served satisfactorily was colonel/pay grade O-6.  Notwithstanding counsel’s argument to the contrary, there is no evidence that the former Secretary of the Army’s grade determination was improper, illegal, double jeopardy, or influenced by criticism of previous grade determination decisions. 

	b.  Contrary to the contention by counsel that “post-hoc reduction in rank upon retirement by means of a grade determination” is not a proper means by which the Army can exact punishment, the Board noted that grade determination actions are administrative, not punitive.

	c.  The contention that the former Secretary of the Army used the grade determination process to “send a message” in response to the “avalanche of criticism” in the handling of the case of MG DH is purely speculation by the applicant and his counsel.  Other than their contentions, the applicant and counsel have presented no evidence or legal authority which demonstrates that the Secretary of the Army improperly or illegally used the grade determination process to circumvent the military justice system or that the grade determination action amounted to “double jeopardy.”

	d.  The contentions by the applicant and his counsel that the grade determination process is devoid of recourse and/or due process is without merit.  Counsel’s assertion that the Secretary of the Army’s misuse of grade determination could open up a new avenue of stand-alone punishment is also without merit.  The findings of the AGDRB are not published because they are only recommendations to the Secretary of the Army which he is not bound by law or regulation to accept.  Obviously, there is recourse to grade determination decisions as evidenced by the application currently under review.  Further, the Board presumes the lawyer representing the applicant is aware of recourse to Federal Court in the event he wishes to challenge a grade determination decision or in the event he believes that the Secretary of the Army has misused his grade determination authority.

	e.  In regard to the matter of due process, the Board noted that the applicant had access to military counsel throughout and could have hired civilian counsel at his own expense to represent him.  The Board also noted that the former Secretary of the Army’s decision in this matter was reviewed for legal sufficiency and that he would not have acted contrary to a legal review indicating such action was legally insufficient.  The inference by the applicant and his counsel that the former Secretary of the Army did, or that any sitting Secretary of the Army would, willfully abuse authorities granted to him by law to render grade determination decisions is an unwarranted and inappropriate attack on the integrity and honor of the distinguished Americans who are asked to lead the Army.

11.  Based on the conclusions stated in paragraphs 10 a through d, this Board finds that the applicant and his counsel have failed to provide any evidence that the Secretary of the Army abused, misused or otherwise acted improperly in rendering a decision that the highest grade satisfactorily held by the applicant was colonel/pay grade O-6 or that his decision was in response to criticism of the handling of other grade determination decisions.

12.  The Board also considered the contention by the applicant and his counsel that the former Secretary of the Army’s grade determination decision in the applicant’s case was “unjust.”  In this matter, the Board noted that counsel set forth several arguments in support of his premise that the applicant’s two-grade reduction was unprecedented, disproportionate, and works an injustice not at all justified by the circumstances.
	a.  Counsel argued the matter of “disproportionality” from the perspective that MG DH’s conduct was more serious than that of the applicant and he was court-martialed because he engaged in improper sexual relationships and then lied about them.  Counsel further asserted that the Army conceded that there was no evidence of coercion in the applicant’s case in marked contrast to MG DH’s case.  Finally, counsel argued that the applicant agreed to waive the statute of limitations defense in order to accept responsibility for his actions, thereby “permitting the Army to resolve the matter in as quiet and nonadversarial manner as possible.”

	b.  Counsel asserted that the “application of the standard was clearly wrong if one uses the [MG DH] experience, and the [former Secretary of the Army’s name omitted] treatment of it as a guideline.”  He points out that MG DH’s misconduct all occurred while a major general and, as a result, the Secretary of the Army concluded that his highest grade satisfactorily held was brigadier general.  Counsel further points out that the applicant’s misconduct occurred from December 1991 to July 1992 when the applicant was a colonel and from December 1995 until July 1997 while the applicant was a brigadier general and a major general.  Counsel then argues that, if the standard for reducing an officer’s grade is that misconduct in that grade renders that service unsatisfactory, then the Secretary of the Army should have reduced the applicant to lieutenant colonel.  He concludes that since the Secretary of the Army did not reduce him to lieutenant colonel, then by definition the 1991-1992 misconduct did not render the applicant’s service as a colonel unsatisfactory.  From this conclusion, counsel further argues that “the 1995-1997 relationship should not render his overall service as a general officer for six years unsatisfactory” and argues as follows in support of this conclusion:

	“Certainly, [the applicant’s retired rank and name omitted] level of contribution as Vice Director of Operations for two years, a position he officially assumed after the conclusion of the later of [the applicant’s retired rank and name omitted] relationships, was significant enough, and of an unparalleled achievement, to make at least some portion of his service as a general officer satisfactory in the eyes of the Army.”

	c.  Counsel also contends that the former Secretary of the Army’s action was “unjust.”  He supports this contention by reflecting again on the applicant’s “outstanding” career and his potential “to rise to the highest rank and position in the Army.”  Counsel also points out that the applicant had two consensual relationships which ended his career, that he cooperated fully including waiver of the statute of limitations, that he accepted nonjudicial punishment and that he voluntarily resigned.  Counsel concluded with the following argument:

	“To conclude that this fine general officer, who even now continues to devote himself to the most sensitive and most important national security work that exists, must sacrifice more than $1 million in retirement pay, and sacrifice two stars to retire as a Colonel, is to negate the length, breadth and significance of his six years as a general officer.  If for no other reason, the Secretary’s action was too severe and too much of an injustice to the record of [the applicant’s name omitted] for the Board to let it stand.  Justice and fairness dictate the Board take corrective action.”

13.  In addressing the contentions by the applicant and his counsel that the applicant’s two-grade reduction was unprecedented, disproportionate, and works an injustice not at all justified by the circumstances, the Board examined all the pertinent evidence and concluded:

	a.  Proportionality as a legal matter applies to punishment; however, grade determination is an administrative action, not a punishment.  The Board finds that each grade determination case is unique and is considered on its individual merits.  The Board also concluded that the applicant’s improper relationships were severe and egregious, particularly because they occurred over a protracted period of time and involved the wives of officers who served under him.  Further, the Board also determined that the former Secretary of the Army’s decision in the case of MG DH is not a precedent for the decision rendered in the applicant’s case.  Additionally, because MG DH's misconduct occurred only while in the rank of major general, retirement in the rank of brigadier general was the only option available to the AGDRB.  In sum, the Board finds that the applicant and his counsel have not proven that the two grade reduction in the applicant's case was unlawful, unjust or unfair.

	b.  Counsel’s inference that the applicant should receive relief from this Board because he waived the statute of limitations and accepted an Article 15, thereby allowing the Army to resolve the matter quietly, is specious.  The Board noted that the applicant entered into a plea bargain to avoid trial by court-martial, he submitted an affidavit under Military Rule of Evidence 410, he accepted punishment under Article 15, he was tendered a punitive memorandum of reprimand and he submitted a request for retirement.  The Board determined the applicant acted in his own interest in negotiating a plea bargain which resulted in non-judicial punishment, a punitive letter of reprimand and voluntary retirement instead of a trial by court-martial.  The Board further noted that the general court-martial convening authority demonstrated leniency and compassion by accepting the plea bargain, particularly when it is noted that the maximum punishment which could have been imposed at trial by court martial (dismissal, confinement and forfeiture of all pay and allowances) was substantially more harsh that the maximum punishment which could have been imposed under Article 15.  

	c.  The Board considered counsel’s argument that the decision by the former Secretary of the Army’s not to reduce the applicant to lieutenant colonel demonstrated the applicant’s 1991-1992 misconduct did not render his service as a colonel unsatisfactory and that, as a result, his 1995-1997 relationship should not render his six years of general officer service unsatisfactory.  The Board concluded that this logic is flawed based on the following.  

		(1)  The Board agrees with counsel that that the applicant could have been retired as a lieutenant colonel under grade determination procedures based on his misconduct as a colonel during the period 1991-1992.

		(2)  However, the Board also noted that the Secretary of the Army, for reasons known only to himself, determined that highest grade satisfactorily held by the applicant was colonel/pay grade O-6.

		(3)  While it is true that the applicant’s 1991-1992 misconduct could have resulted in retirement as a lieutenant colonel, the former Secretary of the Army’s decision does not mean, as counsel asserts, that the applicant’s 1991-1992 actions were not misconduct, that they did not occur, that they should not have been considered by the AGDRB, or that they should not have been considered in assessment of the applicant’s overall service.  

		(4)  The Board also noted the applicant was promoted to brigadier general on 1 September 1993 and to major general on 1 October 1996 and that he served in both those ranks during his 1995-1997 misconduct.  Further, the Board noted he acknowledged in his request for voluntary retirement that he was subject to grade determination and that Army Regulation 15-80 clearly states that even one specific act of misconduct may form the basis for a determination that the overall service in that grade was not satisfactory, regardless of the time served in grade. 

		(5)  Thus, it is clear to this Board that, regardless of how the former Secretary of the Army viewed the applicant’s misconduct in 1991-1992, he was perfectly within his authority under regulation and law to determine that the 1995-1997 misconduct, by itself, was sufficient as a basis for rendering all of the applicant’s service as a general officer unsatisfactory and as a basis for determining the highest grade satisfactorily held was colonel/pay grade O-6.  Further, it is clear to this Board that the applicant should not now complain the process was flawed because the former Secretary of the Army, in an apparent act of leniency, did not determine lieutenant colonel was the highest rank satisfactorily held.

	d.  The Board concluded that the applicant and his counsel have failed to provide evidence or argument which shows the grade determination decision by the former Secretary of the Army was “unjust.”

	(1)  The Board noted that the Secretary of the Army could have decided that the applicant’s highest grade satisfactorily held was lieutenant colonel, but he chose not to do so.  

	(2)  The Board noted counsel’s repeated discussion of the applicant’s achievements as a general officer, his potential to aspire to the highest rank and position in the Army, and his current support of covert operations as justification for relief in this case.  However, these facts are not a basis for this Board to grant relief, particularly when it is apparent that, if the applicant’s misconduct had been known at the time it occurred, he in all likelihood would never have been promoted to general officer or served in those positions of responsibility cited by counsel.

		(3)  Furthermore, the Board does not accept the inference by counsel for the applicant that two consensual relationships are not serious offenses or that because the relationships were consensual that they are less serious in view of the applicant’s six years of general officer service.  The Secretary of the Army, consistent with authorities granted to him by law, obviously found the applicant’s misconduct so severe and so egregious that his service as a general officer was rendered unsatisfactory.

14.  Based on all of the foregoing, the Board has determined:

	a.  The preponderance of evidence shows that the applicant’s misconduct, in spite of its consensual nature, was severe and egregious because it involved repeated sexual acts over a substantial period of several years with wives of officers under his command while he was a colonel and a general officer in positions of great responsibility.

	b.  The applicant’s misconduct which violated the UCMJ was properly investigated, it was properly addressed consistent with law and regulation, he was afforded due process throughout and he received a certain degree of leniency and/or compassion when the general court-martial convening authority elected to accept the applicant’s plea bargain to handle the applicant’s offenses under Article 15 of the UCMJ instead of handling them at trial by court-martial.  

	c.  Subsequent to the applicant’s Article 15 and his request for retirement, the former Secretary of the Army, also exercising a degree of leniency and/or compassion, rendered a grade determination decision consistent with law which gives him the sole discretion to determine the highest grade satisfactorily held by a commissioned officer. 

	d.  The applicant and his counsel have not provided evidence or argument which are sufficient as a basis for this Board to:

		(1)  Deem the former Secretary of the Army’s grade reduction decision in the applicant’s case “contrary to law”;

		(2)  In the alternative, deem the two grade reduction ”unjust”;

		(3)  Reinstate the applicant to the rank of major general;

		(4)  Award all back pay and allowances;

		(5)  Grant any other form of relief in this case based on equity, justice or compassion.

15.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy either requirement.

16.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  __MMD__  GRANT

________  ________  ________  GRANT FORMAL HEARING

___LLS__  __JHL___  ________  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002069176	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021018	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR MCLAURIN	
ISSUES         1.	322	
2.		
3.		
4.		
5.		
6.