RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 November 2005 DOCKET NUMBER: AR20050001064 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Mrs. Nancy L. Amos Analyst The following members, a quorum, were present: Mr. James E. Anderholm Chairperson Mr. Thomas E. O'Shaughnessy Member Ms. Carol A. Kornhoff Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that the decision of the Army Grade Determination Review Board (AGDRB), which determined the last grade he satisfactorily held was Lieutenant Colonel (LTC), O-5, be reversed and his retired grade be established as Colonel (COL), O-6. He also requests a general officer memorandum of reprimand (GOMOR) be removed from his Official Military Personnel File (OMPF). 2. The applicant states the AGDRB did not consider substantive documents that are now available; specifically, officer evaluation reports (OERs) for his last two years of service. These OERs, plus his first OER, reflect more than satisfactory performance at the COL level for a period of three years. He served, and continued to serve, successfully as a COL. He received no duty-related admonitions. Additionally, the memorandum announcing the results of the AGDRB identified the board action as a "Grade Determination Due to Retirement in Lieu of Elimination" case. However, he should not have been boarded under that authority since the Chief, Army Reserve (CAR) had ceased elimination proceedings against him. 3. The applicant states he was assigned as the Military Assistant for Training to the Assistant Secretary of the Army, Manpower and Reserve Affairs (ASA (M&RA)) for the last three years and seven months. He advised the Assistant Secretary on all matters relating to Army readiness and training as well as any issues unique to the Reserve Components. He was the Secretariat co-executive of the Training Program Evaluation Group. As of January 2005, he still filled the COL position as the Secretariat co-chair of the Training Panel for Generating Force 2013 with different panel members. Additionally, he served on the Reserve Component Duty Military Occupational Specialty Qualification (DMOSQ) Tiger Team ensuring the necessary policy guidance and resource allocation that has enabled the Reserve Components to increase their DMOSQ rate. He currently (as of the date of his application) has 19 years and 10 months of active Federal service and must retire in April 2005. 4. The applicant states he served the Army faithfully for 33 years at all levels of command from squad to the Army Secretariat in the Continental United States and Europe at the height of the Cold War. His service to the Nation and the Army was not limited to military service. 5. The applicant also stated the GOMOR he received from the CAR was unfairly written and attacked his character and integrity. The CAR does not have sufficient observation of his duty performance in order to make that assessment. As can be seen from his OERs, there is no reflected concern regarding his character or integrity while working under the direct supervision of the ASA (M&RA). 6. The applicant provides OERs for the periods ending 11 April 2002 (signed by him and the rating officials on 21 July 2004), 11 April 2003 (signed by him and the rating officials on 12 January 2005), and 11 April 2004 (signed by him and the rating officials on 7/8 January 2005; (his OER for the period ending 31 January 2005 is also available); the approved AGDRB decision dated 9 December 2004 with the AGDRB packet (including his memorandum to the board president dated 21 September 2004); a letter from the CAR dated 29 July 2004; four character reference letters dated 18 June 2004, 18 July 2004, 22 June 2004, and 8 June 2004; his request for voluntary retirement dated 30 November 2004; Legion of Merit award orders and two Meritorious Service Medal award orders; a notification of security determination dated 22 October 2003; and a letter report from the U. S. Army War College dated 28 June 2002. CONSIDERATION OF EVIDENCE: 1. After having had prior enlisted service in the Regular Army and the Army National Guard, the applicant was commissioned out of Officer Candidate School and appointed a second lieutenant in the Army National Guard. He transferred to the U. S. Army Reserve on 1 October 1986. He entered active duty in an Active Guard Reserve status on or about 28 August 1998. He was promoted to COL on 1 May 2001. 2. The applicant's OER for the period ending 11 April 2002 shows he was assigned as the Military Assistant to the Deputy Assistant Secretary of the Army, Training, Readiness, and Mobilization (DASA, TRM). The DASA, TRM acted as both his rater and senior rater. His performance was rated as Outstanding Performance, Must Promote. His promotion potential was rated as Best Qualified and he was given a center of mass rating. 3. The applicant's OER for the period ending 11 April 2003 shows he was assigned as the Military Assistant to the DASA, TRM. The DASA, TRM was his rater. The ASA (M&RA) was his senior rater. His performance was rated as Outstanding Performance, Must Promote. His promotion potential was rated as Best Qualified and he was given a center of mass rating. 4. A DA Form 1059-2 (Senior Service College Academic Evaluation Report) shows the applicant was involuntarily terminated from the U. S. Army War College non-resident program on or about 11 April 2003. His file was sent before an academic review board and the board determined he failed to maintain academic integrity in his course work. Details from the review board are not available. 5. On 23 March 2004, the applicant was given a GOMOR by the CAR for failing to maintain academic integrity while he was enrolled in the Distance Education Program. The GOMOR noted the applicant plagiarized another student's work and submitted the materials as his own coursework. The CAR informed him he intended to file the GOMOR permanently in the applicant's OMPF. He would, however, consider any matters the applicant submitted before making his final filing decision. On 25 March 2004, the applicant acknowledged receipt of the GOMOR. There is no evidence to show he submitted a rebuttal. The CAR directed the GOMOR be filed in the performance portion of the applicant's OMPF. 6. Apparently on 23 March 2004, the CAR initiated elimination proceedings against the applicant for misconduct by plagiarizing a fellow student's work at the U. S. Army War College. The four character reference letters provided by the applicant were apparently provided in support of his appeal of that action. 7. The applicant's OER for the period ending 11 April 2004 shows he was assigned as the Military Assistant to the DASA, TRM. The DASA, TRM was his rater. The ASA (M&RA) was his senior rater. His performance was rated as Outstanding Performance, Must Promote. His promotion potential was rated as Best Qualified and he was given a center of mass rating. 8. On 19 July 2004, the Director, Army Reserve Active Duty Management Directorate, U. S. Army Human Resources Command – St. Louis (USAHRC – STL) informed the applicant an officer does not automatically retire in the highest grade he or she held on active duty. To ensure an officer is retired at the appropriate grade, the officer's records are screened to identify any information since the officer's last promotion that substantiates the existence of adverse findings or conclusions from an officially documented investigation, proceeding, or inquiry. If such documentation is discovered, the record must be referred to the AGDRB for review. 9. The applicant was informed his OMPF would be sent to the AGDRB due to the GOMOR dated 23 March 2004, the DA Form 1059-2 dated 11 April 2004 (sic), and a memorandum from the Office of the CAR Reserve dated 23 March 2004, subject: Elimination Under Provisions (UP) of Army Regulation 600-8-24. He was informed the AGDRB would review his OMPF as prescribed by paragraph 4-1 of Army Regulation 15-80 and make their "retired grade" advisory recommendation to the Secretary of the Army. He was informed he could submit any written material that he wished the AGDRB to consider. He was informed he had up to 30 days from receipt of this notification to complete the review of his records and, if desired, submit written material. 10. On 29 July 2004, the CAR informed the applicant he had received the applicant's 22 July 2004 rebuttal of the elimination proceedings action. He stated he was stopping the proceedings not because of the applicant's recitation of contributions to the Army, his letters of reference, or copies of awards and efficiency reports he had included. The CAR was stopping the board because the appeals process would extend beyond the applicant's mandatory retirement. The CAR stated he remained deeply concerned by the applicant's demonstrated lack of integrity. The applicant referred to his misconduct as a "careless mistake." However, the CAR stated the applicant's lack of integrity represented an issue of character and his rebuttal listing past achievements convinced him the applicant still did not recognize that issue. 11. In a 21 September 2004 memorandum, the applicant requested the AGDRB determine his highest grade satisfactorily held to be COL. Paragraphs 2 and 3 of his memorandum were approximately the same as paragraphs 2 and 3 of his application to the Army Board for Correction of Military Records (ABCMR) (an extract from those paragraphs is in paragraph 3, THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE, above). He also stated he was aware the [AGDRB] proceeding resulted from his disenrollment from the Army War College non-resident course and stated, "It is interesting to note that the author of the resulting Memorandum of Reprimand did not first ask me to explain the circumstances of the disenrollment. On the other hand, my rater/senior rater did, and were satisfied with my explanation." 12. On 30 November 2004, the applicant applied for voluntary retirement to be effective 1 April 2005. 13. The AGDRB convened on or about 1 December 2004 and recommended, in a unanimous decision, the applicant be retired in the grade of O-5 (Lieutenant Colonel). 14. In a memorandum dated 9 December 2004, subject: Grade Determination Due to Retirement in Lieu of Elimination Case (applicant), the finding of the AGDRB, which was that the applicant's highest grade satisfactorily held while on active duty was O-5, was approved by the Deputy Assistant Secretary (Army Review Boards). 15. The applicant's OER for the period ending 31 January 2005 shows he was assigned as the Military Assistant to the DASA, TRM. The DASA, TRM was his rater. The ASA (M&RA) was his senior rater. His performance was rated as Outstanding Performance, Must Promote. His promotion potential was rated as Best Qualified and he was given a center of mass rating. 16. Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely or inaccurate is not filed in an individual's official personnel files; and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. In pertinent part, it states a letter to be included in a Soldier’s OMPF will be referred to the recipient concerned for comment. A letter may be filed in the OMPF only upon the order of a general officer or by direction of an officer having general court-martial jurisdiction over the individual. 17. Army Regulation 15-80 establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army. Paragraph 2-2 states the AGDRB considers individual cases that are referred to it in accordance with this regulation. Paragraph 2-5c states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory. One specific act of misconduct may or may not form the basis for the determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade. 18. Army Regulation 15-80, paragraph 4-1 states an officer is not automatically entitled to retire in the highest grade served on active duty. Instead, an officer is retired in the highest grade served on active duty satisfactorily, as determined by the Secretary of the Army or the Secretary's designee. For officers below the grade of brigadier general, the AGDRB will recommend to the Deputy Assistant Secretary of the Army (Review Boards) for final determination the highest grade in which an officer has served satisfactorily for purposes of service/physical disability retirement. The AGDRB recommendation is purely advisory, and the Secretary of the Army or the Secretary of the Army's designee is not bound by that recommendation. 19. Army Regulation 15-80, paragraph 4-1d states all retirements, except for disability separations, involving officers who, since their last promotion, have been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry (except minor traffic infractions) will be forwarded to ASA (M&RA) for a grade determination, provided such information is reflected, or should be reflected by regulation, in the officer's OMPF. Examples of such findings or conclusions include a memorandum of reprimand. Even if the information described is not required to be filed in the officer's OMPF, the separation authority may forward any retirement that contains information deemed substantiated, adverse, and material to a determination of retired grade. DISCUSSION AND CONCLUSIONS: 1. The applicant contended the AGDRB did not consider substantive documents that are now available; specifically, OERs for his last two years of service. However, his OER for the period ending 11 April 2002 was not signed until 21 July 2004, two days after he was notified his records would be reviewed by the AGDRB. His OERs for the periods ending11 April 2003 and 11 April 2004 were not signed until January 2005, a month after the grade determination was made. He was put on notice in July 2004 he had 30 days to update his records. The AGDRB did not convene until December 2004. 2. It is acknowledged the applicant's last four OERs reflected he performed his duties as the Military Assistant to the DASA, TRM in an "Outstanding Performance, Must Promote" manner. However, his contention he received no duty-related admonitions is incorrect. He received the GOMOR for his performance as a COL in the U. S. Army Reserve. 3. The applicant contended the memorandum announcing the results of the AGDRB identified the board action as a "Grade Determination Due to Retirement in Lieu of Elimination" case. However, the Director, Army Reserve Active Duty Management Directorate, USAHRC - STL informed him by memorandum dated 19 July 2004 that his records would be sent to the AGDRB due to the GOMOR, the DA Form 1059-2, and the elimination proceedings memorandum. The elimination proceedings were not halted until 29 July 2004. It appears that item of information may not have been relayed to the AGDRB. Nevertheless, the GOMOR and the DA Form 1059-2 by themselves were valid reasons for his case to be considered by the AGDRB. 4. The applicant contended he was assigned as the Military Assistant for Training to the ASA (M&RA) for almost four years and had almost 20 years of active Federal service. He contended he served the Army faithfully for 33 years at all levels of command, including at the height of the Cold War, and his service to the Nation and the Army was not limited to military service. 5. However, the applicant's circumstances could be compared to a Master Sergeant with four years time in grade. During his first three years as a Master Sergeant he performs his duties in an exceptional manner. In his fourth year, he has a lapse of judgment that causes him to be reduced in grade to Sergeant First Class. He is allowed to retire, but it is determined the highest grade he satisfactorily held was Sergeant First Class. That is in part because, as a Master Sergeant with four years time in grade, he "should have known better." The applicant, as a COL with three years time in grade and despite his successful mission accomplishment, should have known better than to let his judgment (concerning an issue of plagiarism) slip. The primary difference in these two cases being, as a commissioned officer, the applicant could not be reduced while serving on active duty. 6. The applicant contended the GOMOR he received from the CAR was unfairly written and attacked his character and integrity and that the CAR did not have sufficient observation of his duty performance in order to make that assessment. He also stated, in his letter to the AGDRB, "It is interesting to note that the author of the resulting Memorandum of Reprimand did not first ask me to explain the circumstances of the disenrollment. On the other hand, my rater/senior rater did, and were satisfied with my explanation." 7. The CAR did ask the applicant to explain the circumstances of the disenrollment. The CAR informed the applicant he would consider any matters the applicant submitted before making his final filing decision. The applicant acknowledged receipt of the GOMOR; however, there is no evidence to show he submitted a rebuttal when offered the opportunity. The applicant does not now explain to the ABCMR the circumstances of the disenrollment, nor did he explain them to the AGDRB. He does not provide the ABCMR his rebuttal to the elimination proceedings action which evidently contained an explanation. Therefore, there is insufficient evidence on which to base removing the GOMOR from his OMPF. 8. Based upon the circumstances of this case, there is insufficient evidence on which to grant the relief requested. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __jea___ __teo___ __cak___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __James E. Anderholm__ CHAIRPERSON INDEX CASE ID AR20050001064 SUFFIX RECON DATE BOARDED 20051101 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY Mr. Chun ISSUES 1. 129.04 2. 3. 4. 5. 6.