BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20160009144 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20160009144 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________X___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20160009144 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records. 2. Military Personnel Records. THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his records to show he was placed on the retired list in the grade of rank of major general (MG)/pay grade O-8 (the highest grade he held) and payment of retired back-pay due as a result of the correction. 2. The applicant states that he served in the grade of MG in three assignments of high trust and confidence from 10 December 2009 until 30 September 2014. a. Based on a Department of the Army Inspector General (DAIG) Report of Investigation (ROI), the Secretary of the Army (SecArmy) found that he had not served satisfactorily in that grade and directed he be retired in the grade of rank of brigadier general (BG)/pay grade O-7. b. The applicant states the basis of this action was not any act of personal misconduct, but rather two decisions he made as a senior commander. The retired list grade determination action was unjust because the record before the SecArmy was materially incomplete, did not provide a fair balance between the ROI and his otherwise distinguished service, could not justly serve as a basis for concluding that he should retire at a lower rank and grade, and other reasons. He adds that the unfair impact of this action will be life-long, if not corrected. 3. The applicant provides counsel's Memorandum in Support of Application for Relief with an Index of Exhibits. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, correction of the applicant's records to show he was placed on the retired list in the grade of rank of MG (O-8) and payment of all retired back-pay due as a result of the correction. 2. In a 43-page Memorandum in Support of Application for Relief of Applicant to the Army Board for Correction of Military Records (ABCMR), counsel states the applicant served in the grade of MG for 57 months in 3 assignments of high trust and confidence, with outstanding performance ratings and consistently high praise from superiors and subordinates alike, from 10 December 2009 until his retirement on 30 September 2014. a. During the period of service under review, the applicant was serving as Commanding General (CG), United States Army Japan/I Corps Forward (USARJ/ICF). Notwithstanding his outstanding performance, based on the two decisions the applicant made as CG, USARJ/ICF, that were addressed in the DAIG ROI, the SecArmy found that the applicant had not served satisfactorily in the grade of MG. (1) The first decision was made by the applicant in August 2012 on the advice of his Staff Judge Advocate (SJA) and his Inspector General (IG). The applicant decided to not formally investigate a complaint made against a foreign national Master Labor Contract (MLC) employee (Ms. KI) who worked in the G-3 section. Instead, the applicant directed a non-punitive transfer of Ms. KI to an equivalent position outside the G-3 section. He also acted on the complaint against the USARJ/ICF, G-3, a U.S. Army colonel (COL AF), for his alleged favored treatment and possible inappropriate relationship with Ms. KI. He issued a letter of concern to COL AF for allowing the command climate and morale in his section to deteriorate, and for allowing the perception of an inappropriate relationship to develop. (2) The second decision was made by the applicant upon receipt of an allegation made by the MLC employee (Ms. KI), dated 8 March 2013. Ms. KI alleged that COL AF had sexually assaulted her in July 2012 when they were both on temporary duty (TDY) in Hawaii. At the same time as the complaint, COL AF was already the subject of an Army Regulation (AR) 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation directed by the applicant for alcohol-related misconduct that included inappropriate contact with various women at the Camp Zama Community Club. b. Counsel states the circumstances were unusual enough to give the applicant pause as to how best to immediately deal with the sexual assault allegation since (1) the allegation was made 8 months after the fact and (2) Ms. KI's own actions during and between the alleged sexual assault and reporting it complicated the situation. (1) After Ms. KI had been moved out of the G-3 section, in November 2012 she took the opportunity to meet with the applicant and requested she be returned to her former positon in the G-3 section to work directly for the officer she would later accuse of (previously) sexually assaulting her. During the meeting, she alluded to the G-3 being "out of line" but refused to elaborate, despite the applicant's assurances that he would take action if the G-3 had acted improperly. Ms. KI had separate discussions with the Deputy Commanding General (DCG), USARJ/ICF, during this timeframe and she made the same allegation and request to return to her former position in the G-3 section. (2) The applicant directed that the sexual assault allegation be included in the ongoing AR 15-6 investigation rather than immediately referring the matter to the U.S. Army Criminal Investigation Command (CID). On 22 March 2013, after conclusion of the AR 15-6 investigation, the applicant issued a General Officer Memorandum of Reprimand (GOMOR) to the G-3, COL AF. On 17 May 2013, he referred the matter to CID. (3) Counsel states, "[Applicant] accepts full responsibility for this decision and that his delay in referring the allegations to CID reflects an error in command judgment." c. The DAIG opened an investigation into the applicant's handling of the matter. The applicant was reassigned to another MG position within the Pentagon. (1) On 28 August 2013, the DAIG issued an ROI and concluded that the applicant failed to investigate allegations of misconduct by a subordinate; failed to treat a subordinate with dignity, respect, fairness, and consistency; failed to flag a subordinate; improperly directed an investigation that was the sole investigative responsibility of the CID; and failed to take appropriate action to remove an officer from a position of authority. (2) On 31 July 2014, the SecArmy found that the applicant had not served satisfactorily as an MG and directed he be retired in the grade of BG. d. Counsel states the applicant's placement on the retired list in the lower grade is a serious injustice that fails to reflect the totality of his 57 months of exemplary service as an MG and disproportionately penalizes him for a mistake that constitutes an error in command judgment, but not an act of personal misconduct. He states the applicant's error in deciding to formally investigate allegations reported to him as part of an ongoing AR 15-6 investigation rather than referring the matter to CID was one command decision, albeit a decision in error, amidst hundreds of command decisions the applicant reached daily. e. Counsel also states the decision to retire the applicant in the grade of rank of BG must be corrected because: * the record before the SecArmy – * was materially incomplete, lacking essential information about the full 57-month period as an MG * did not provide a fair balance between the adverse information and the applicant's otherwise distinguished service as an MG * could not justly serve as the basis for concluding he should be retired in the grade of rank of BG * the SecArmy made his decision during a period when there was extraordinary congressional and media attention being given to the egregious misconduct of other general and flag officers that likely indirectly influenced his decision * the unusual circumstances under which the applicant made his decision should mitigate his mistaken actions * the Army's actions following the applicant's suspension from command were not consistent with a loss of trust and confidence * placement on the retired list in the lower grade is not in the best interests of the Army * the unfair impact of this injustice will be life-long, if not corrected f. Counsel's statement presents detailed information pertaining to the applicant that offers Background and Statement of Facts, Appropriateness of Forum, Argument, and Conclusion and Request for Relief. g. He presents a summary of the applicant's military service, with emphasis on service as an MG from December 2009 to September 2014. The information is taken from the applicant's Officer Record Brief and Army Career Résumé, along with very positive comments from the raters who rendered the five Officer Evaluation Reports (OERs). Included is an online media report on Japan's Triple Disaster (i.e., earthquake, tsunami, and nuclear reactor accident) that occurred during the applicant's tenure as CG, USARJ/ICF, and an overview of the implementation of the revised OER policy that ended the requirement for OERs for MGs during this time period. (Exhibits 1 – 9) h. Counsel presents extracts of comments from memoranda of support submitted to the Army Grade Determination Review Board (AGDRB) by the applicant's superiors, peers, and subordinates. They offer very favorable information about the applicant's professionalism (consistently upholding Army Values) and his personal character during the period of service under review. (Exhibits 10 – 18) i. Counsel's statement offers information on the applicant's command decisions, as outlined below. (1) Response to an allegation of favoritism and possible inappropriate relationship between a subordinate officer and an MLC employee. (a) Counsel states that, in August 2012, a female administrative assistant to the G-3 filed a complaint with the USARJ/ICF IG alleging favoritism by the G-3 toward another female administrative assistant (the MLC employee, Ms. KI) and the complainant made vague reference to a possible inappropriate relationship. Counsel notes that the DCG, USARJ/ICF, had previously issued (on 8 June 2012) a letter of concern to the G-3 (Exhibit 19) and the applicant approved of the handling of the matter by the G-3's rater (Exhibit 20). The applicant acknowledges, in hindsight, a deeper examination of the G-3's conduct should have been made in August 2012 (Exhibit 21). (b) The USARJ/ICF SJA and IG offered the applicant two options: (1) a formal AR 15-6 investigation or (2) a formal General Officer Letter of Concern with a transfer of Ms. KI to an equivalent position outside the G-3 section and a Command Climate survey on the G-3 section to assess the working environment (and take corrective action, as needed). The SJA and IG noted the second option did not foreclose the possibility of a later investigation, if one was later deemed necessary (Exhibits 22 and 23). The applicant chose the second option and later offered this explanation, "I did not initiate an [AR] 15-6 investigation because the recommendation of my SJA and IG appeared reasonable to me based on what was contained in the complaint..." (c) In November 2012, the MLC employee met with the applicant in an "open door" session and requested that she be reassigned back to her former position working directly for the G-3. She alluded vaguely to the G-3 being "out of line" and refused to elaborate. The applicant declined to change his prior decision concerning her reassignment. (d) In January 2013, the MLC employee came back to see the applicant, but he was on TDY out of the country. He notes that the MLC employee also had several meetings with the DCG, USARJ/ICF, in which she "basically tried to blackmail" the DCG. She stated, "I have things that would be embarrassing to USARJ and USARPAC [U.S. Army, Pacific]." He adds the DCG's testimony is not included in the DAIG Executive Summary or the ROI. (e) In February 2013, the applicant directed a command investigation of the G-3 for public intoxication, drunk and disorderly conduct, and inappropriate contact with various women at the Camp Zama Community Club. This was the month prior to the allegation later made by the MLC employee (Ms. KI) that the G-3 had sexually assaulted her in July 2012. (2) Response to an allegation of sexual assault by a subordinate officer against a MLC employee. (a) Counsel states, on 8 March 2013, the MLC employee (Ms. KI) filed a complaint with the IG alleging that the G-3 had sexually assaulted her eight months earlier (in July 2012) while she and the G-3 were on TDY in Hawaii (Exhibit 24). (b) The applicant ensured the MLC employee's complaint was investigated as part of the AR 15-6 investigation. The SJA and IG (Exhibits 25 and 26) recommended that the allegation could be included in the on-going AR 15-6 investigation on the G-3 concerning other misconduct and that it could be sent to the CID following that consideration. The AR 15-6 investigation was completed on 22 March 2013. In the ROI (Exhibit 27), the IO noted the difficulties resulting from the passage of time between the alleged sexual assault and its being reported, and the consequent lack of corroborating evidence. (c) The applicant issued a GOMOR to COL AF, G-3, and afforded him the opportunity to consult with legal counsel (Exhibit 28). (d) On Friday, 17 May 2013, the Chief of Staff, Army (CSA), issued an Army-wide message, subject: Sexual Assault and Sexual Harassment, that strongly emphasized the need for commanders and leaders to "…ensure that every allegation of sexual assault and sexual harassment is thoroughly and professionally investigated and that appropriate action is taken…" (Exhibits 29 and 30). (e) Prior to finalizing the GOMOR, on 17 May 2013, the applicant directed that the allegations be sent to CID. (He suspended COL AF from his position on 7 June 2013.) (f) Counsel notes the DAIG concluded that the applicant sent the complaint to CID when he believed it would appear in the national media. However, this is misleading because it fails to acknowledge two factors: (1) when the applicant first met with his staff SJA and IG about the complaint, he asked if it should go to CID; and (2) on the same date after receiving the CSA's message, he directed the complaint be sent to CID. (The CID opened the case file on 20 May 2013.) j. Formal recognition of service as CG, USARJ. (1) The applicant was awarded the Distinguished Service Medal for his exceptionally meritorious service, from 12 October 2010 to 12 June 2013, as the CG, USARJ/ICF (Exhibit 31). (2) He was also honored by the host nation for his service with the Order of the Rising Sun (Gold and Silver Stars) conferred on him by the Emperor of Japan (Exhibits 32 – 34). k. Suspension and reassignment. After the CID began its investigation into the MLC employee's allegation of sexual assault, the DAIG received a complaint that the applicant failed to take appropriate action in response to that allegation. (1) Beginning on 4 June 2013, the Joint Chiefs of Staff testified at a hearing of the Senate Armed Services Committee on sexual assault and harassment (Exhibit 35). (2) At 0800 hours, 8 June 2013, 72 hours before his scheduled change of command, the applicant was notified of his suspension from his duties as CG, USARG/ICF. (He was reassigned to the Army Staff at the Pentagon.) l. The DAIG substantiated that the applicant: * failed to investigate allegations of misconduct by a subordinate * failed to treat a subordinate with dignity, respect, fairness, and consistency * failed to flag a subordinate * improperly directed an investigation that was the sole investigative responsibility of the CID * failed to take appropriate action to remove an officer from a position of authority m. On 20 December 2013, the Vice Chief of Staff, Army (VCSA), issued a Memorandum of Reprimand (MOR) to the applicant (Exhibit 36). (1) The applicant accepted full responsibility for the decisions he made in his command during the events which were the basis of the reprimand. He explained the circumstances, his intent, and the actions he took (Exhibit 37). (2) On 20 March 2014, the VCSA directed the MOR be filed permanently in the applicant's Army Military Human Resource Record (AMHRR) (Exhibit 38). n. There was concern in the Army's Office of the Chief of Public Affairs (OCPA) about media interest in the applicant's case. (1) Several newspaper articles were written reporting serious personal misconduct by general and flag officers (Exhibits 39 and 40). (2) The OCPA expected significant media coverage and extensive public affairs guidance was prepared. A reporter obtained a redacted copy of the DAIG ROI pertaining to the applicant. In the applicant's case, the OCPA commented, "There should be no mistake that we will thoroughly investigate any allegation of impropriety and take appropriate action when warranted" (Exhibits 41 – 43). o. The Office of the Chief of Legislative Liaison (OCLL) was also concerned about congressional interest. (1) A bill was proposed in Congress to remove commanders from the role of determining criminal cases to be brought before courts-martial, specifically in the most serious criminal cases, including sexual assault and related offenses. The Department of Defense opposed the legislation. (Exhibits 44 – 46) (2) The OCLL also prepared "notification substance" and messaging guidance concerning the applicant's case for the congressional oversight committees (Exhibit 47). p. On 4 April 2014, the CSA retroactively relieved the applicant as CG, USARJ/ICF, effective 7 June 2013. The CSA stated that his "loss of confidence in [the applicant's] judgment" was confirmed by the 28 August 2013 report. However, the CSA did not remove the applicant from his position as Director, Program Analysis and Evaluation (PA&E) (Exhibit 48). q. On 10 April 2014, the applicant was notified that elimination proceedings had been initiated against him and that he was required to show cause for retention on active duty (Exhibit 49). (1) On 9 May 2014, the applicant requested retirement in lieu of elimination (Exhibits 50 and 51). (2) His records were referred to an AGDRB (Exhibit 52). (3) The applicant submitted written materials to the AGDRB. Included in his submissions were, in pertinent part, his letter to the board (Exhibit 53) and personal letters of support from seniors, peers, and subordinates. Counsel provides extracts of portions of the letters, which are available to the Board at Exhibits 54 – 60. (4) The AGDRB met on 23 May 2014 (Exhibit 61). (5) On 31 July 2014, the SecArmy decided to retire the applicant as a BG (Exhibit 62). He notified the Under Secretary of Defense for Personnel and Readiness by memorandum the same day (Exhibit 63). The applicant was notified on 1 August 2013 (Exhibit 64). (a) Counsel notes the redacted SecArmy memorandum does not indicate the statutory basis for the lower retired grade. Presumably, the SecArmy acted under the authority of Title 10, United States Code, section 1370. Additionally, the SecArmy did not provide in detail the reasons for his conclusion that the applicant's 57-months of service as an MG was not satisfactory. Also, the SecArmy's use of the term "misconduct" without further explanation is unwarranted vis-a-vis the serious general and flag officer misbehavior that received so much media attention in the 2013-2014 timeframe that involved serious personal misconduct of an unethical, immoral, or criminal nature. (b) Counsel also notes that the Army has refused a request under the Freedom of Information Act (FOIA) to release the recommendation of the AGDRB regarding the applicant's retired grade (Exhibit 61). The applicant and counsel request the ABCMR review the AGDRB recommendation in its consideration of the applicant's case. Additionally, the applicant expressly waives any objection to the Board's ex parte review of that recommendation. r. The applicant did not receive a formal evaluation for his performance in his follow-on assignment as Director, PA&E. However, several of his senior colleagues later recorded their view of his performance in that position. (Counsel provides extracts of portions of the letters, which are available to the Board at Exhibits 65 and 66.) s. On 14 July 2014, the applicant was awarded the Distinguished Service Medal for exceptionally meritorious service over a 34-year career in positions of increasing responsibility, culminating as Director, PA&E, Deputy Chief of Staff, G-8 (Exhibit 67). He retired from active duty on 30 September 2014 (Exhibit 68). (1) At the time, he was the highest ranking Army officer to be retired at a lower grade for failing to properly process a sexual assault allegation (Exhibit 69). (2) The General Officer Management Office (GOMO) knew of no other general officer retired at a lower grade for that reason (Exhibit 70). (3) The applicant and his counsel know of no similar general officer cases since that time. t. In November 2014, the Chief, GOMO, advised the applicant that the Army leadership was considering revoking the award of the Distinguished Service Medal for his service as CG, USARJ/ICF. (1) On 16 December 2014, the VCSA downgraded the award of the Distinguished Service Medal to the Legion of Merit based on "…the totality of the circumstances surrounding [the applicant's] tenure in command of [USARJ]…" (Exhibits 71 – 75) (2) On 24 June 2015, while the applicant was reviewing his records on the Department of Veterans Affairs website, he learned of the award downgrade (Exhibit 76). When contacted by the applicant, the Chief, GOMO, apologized for not notifying him of the action taken. (3) Counsel notes the language of the Legion of Merit citation is virtually identical to the language of the citation for the previously-awarded Distinguished Service Medal (Exhibit 77). u. Counsel states that the ABCMR is the appropriate forum to consider the applicant's claim for relief based on AR 15-185 (ABCMR), paragraph 2-1, and AR 15-80 (AGDRB), paragraph 2-10. The applicant has carried the burden of proof to show by a preponderance of the evidence that there has been an error or injustice. In addition, the application was filed within 3 years of the alleged error or injustice. Counsel provides the following supporting arguments. (1) The record before the SecArmy was materially incomplete in that it did not provide full and essential information about the full period of the applicant's duty performance and service as an MG. (a) Counsel asserts, "The only information of record about his performance included a statement in the transmittal memorandum to the Secretary that, 'MG [Applicant] has been serving as the Director, Program Analysis and Evaluation, Office of the Deputy Chief of Staff, G-8, United States Army, Washington, DC, since 1 July 2013." (b) Counsel refers to a request for confirmation that the documents produced in response to the FOIA request constituted the entire file before the Secretary for his decision (Exhibit 78). He also notes the supervising attorney replied that "…there are no additional documents responsive to your FOIA request and all 97 pages were part of the Decision memorandum and attachments" (Exhibit 79). (Note: The supervising attorney had previously indicated that three documents had been withheld from production of the FOIA. Those documents were identified as the voting sheets of the AGDRB members (Exhibit 80).) (2) The record before the SecArmy did not provide a fair balance between the adverse information and the applicant's otherwise distinguished service as an MG, and could not justly serve as the basis for concluding he should be retired at the grade of rank of BG. (a) The adverse information was fully presented to the SecArmy and included the notice of the applicant's suspension from command, the full DAIG ROI "in binder" with the Executive Summary and exhibits, the VCSA MOR and filing determination, the retroactive relief from command, notice of initiation of elimination proceedings against the applicant, and his request for retirement in lieu of elimination. (b) The applicant's OERs and award citations were not part of the file, which shows there was a grossly unfair and significant imbalance in the substance as well as volume between the adverse information of record in relation to the allegations against the G-3 and the incomplete favorable information of record about the applicant's performance during his entire time in grade. In particular, information pertaining to the applicant's performance during Japan's "Triple Disaster" was not included. In addition, no information as to the quality of his performance as Director, PA&E, was before the SecArmy. (3) The SecArmy made his decision during a period when there was extraordinary congressional and media attention to the egregious misconduct of other general and flag officers and there is a high likelihood that those factors at least indirectly influenced his decision. (a) The list of offenses reported in the media included: sexual assault, physical abuse, adultery, alcohol abuse, cheating at gambling, public profanity, racially insensitive statements, lewd and sexist remarks, abusive leadership, and lavish travel and entertainment at public expense (Exhibit 81). (b) The applicant never engaged in any such misconduct; he made incorrect management decisions for which he accepted responsibility as the commander. (c) Nonetheless, the OCPA used the opportunity to tout the Army's "toughness" in disciplinary actions. Also, a senior officer in OCLL opined that the serious actions taken against the applicant is a "good news" story (Exhibits 82 and 83). (d) Counsel asserts there is a clear distinction between the types of serious personal misconduct and moral failure by other general and flag officers (described in (u)(3)(a), above) and mistaken command decisions made by the applicant. (4) The unusual circumstances under which the applicant made his decisions should mitigate his mistaken actions. (a) The applicant acknowledges his mistake in not immediately referring the allegation of sexual assault to the CID. However, this clearly is not a case in which the commander (applicant) did nothing upon becoming aware of a sexual assault allegation. There was no attempt to "bury" the allegation. An AR 15-6 was on-going (pertaining to COL AF, G-3) and the applicant directed the allegation be incorporated into that investigation when the MLC employee filed her complaint in March 2013. (b) Counsel states that the same SecArmy who placed the applicant on the retired list in a lower grade took no similar action concerning a general officer whose case involved serious personal misconduct and a criminal conviction (i.e., General (GEN) DP, U.S. Army (Retired)), who resigned as head of the Central Intelligence Agency in 2012). (Exhibits 84 and 85) (c) The applicant's senior rater at the time (Lieutenant General (LTG) FW, U.S. Army (Retired), stated, "…I am very familiar with the DAIG's substantiated findings. There is no 'finding of misconduct' against [the applicant]" (Exhibit 86). (d) In March 2014, the MLC employee who filed the complaint consulted with the Sexual Awareness Response and Consultation office and trial counsel and formally declined in writing to participate, testify, and cooperate in the investigation of COL AF, G-3 (Exhibit 87). Counsel notes that when Ms. KI met with the applicant in November 2012, she had information that she could have presented during their meeting as evidence of the G-3 being "out of line" (Exhibit 88); however, she did not do so. The information did not show evidence of the fear the MLC employee later described in her IG complaint (Exhibit 89). (e) In subsequent meetings, the applicant assured the MLC employee he would take action if COL AF had done anything wrong (Exhibit 90). This decision was later criticized by the DAIG who concluded that by these actions, the applicant failed to treat her "…with dignity and respect…" However, the applicant stressed in his testimony to both the DAIG and in his response to the VCSA that he did not at any time intend to ignore or humiliate her. (5) The Army's actions following the applicant's suspension as CG, USARJ/ICF, were not consistent with a loss of trust and confidence. (a) Counsel states the applicant was suspended from duties on 8 June 2013, and retroactively relieved of duties by the CSA, effective 7 June 2013. The CSA stated, "My loss of confidence in your judgment was confirmed by the results of the [DAIG ROI]." (b) Counsel acknowledges that retroactive relief is certainly possible and can be appropriate and proper in certain circumstances. However, there is an inconsistency in the logic and reasoning of the Army leadership in this instance because the CSA directed that the applicant remain in his position as Director, PA&E – a position of unquestioned trust and confidence and of great responsibility on the Army Staff. (c) Counsel notes that one of the DAIG substantiated findings for which the applicant was disciplined was "failed to flag a subordinate." He points out that the applicant was never flagged and was allowed to retire with his first award of the Distinguished Service Medal for his 34-year career as part of is his record. (6) The reduction in grade is not in the best interests of the Army. (a) The former VCSA who issued the MOR to the applicant recognized the significance of his duty performance as Director, PA&E. The former VCSA stated that the applicant excelled in the job and continued to lead by example through the year and three months he served on active duty until retirement. The former VCSA also noted the totality of the applicant's service as an MG in three successive challenging jobs. He concludes that the applicant's total service as an MG clearly merits retirement in that grade and the corrective action is in the best interests of the Army. (Exhibits 91 and 92) (b) Counsel opines that given the applicant's continued dedication to service, the decision by the SecArmy to place the applicant on the retired list in a lower grade sends a message that is not in the best interests of the Army. (7) The unfair impact of this injustice will be life-long, if not corrected. These include the personal, public, financial, and professional impact. (a) The incident ended any further career progression for the applicant and accelerated his departure from active duty. (b) In August 2015, Dr. TAR, Director of the Department of State's Africa Contingency Operations Training and Assistance Program, hired the applicant through a government contract to serve as the Senior Director, Strategy and Partner Engagement. The Director had a complete understanding of the applicant's background. (c) While on a trip to Germany, a member of the U.S. Mission to the United Nations sent an email to the Office Director, Security Affairs, Bureau of African Affairs in the State Department containing email links to the numerous media reports of the applicant's suspension, reprimand, and retirement from the Army as a BG. The Office Director issued a directive for Dr. TAR to fire the applicant immediately. (d) Dr. TAR noted the unfairness and loss which flow from the continued impact of the actions taken by the Army (Exhibit 93). (e) Counsel adds information on the financial impact relating to the applicant's Army retired pay and the administrative actions that are filed in his AMHRR memorializing his reprimand, relief, and retirement one grade lower than the last grade in which he served satisfactorily while on active duty. 3. Counsel provides an Index of Exhibits that identifies each exhibit, along with a copy of each of the 93 exhibits (as referenced and discussed above). 4. Counsel’s request that the Board review and consider the recommendation of the AGDRB is noted. However, as the AGDRB recommendation is privileged because it is pre-decisional and part of the deliberative process, the Board will not review it. The ABCMR will make its independent recommendation based on the evidence provided in this case. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant (Infantry) and ordered to active duty on 9 May 1980. He continued to serve on active duty and, through his successful performance of duty in diverse assignments, he attained the rank of MG on 10 December 2009. He retired effective 30 September 2014, giving him nearly 5 years of time in grade as an MG. a. The applicant received two Officer Evaluation Reports (OERs) documenting his outstanding performance of duty as Deputy Director for Requirements, J-8, Joint Staff, from 24 August 2009 through 13 August 2010. He was also awarded the Defense Superior Service Medal for his exceptionally superior service during this period of service. b. The applicant assumed command of USARJ/ICF on 12 October 2010. He received three OERs documenting his outstanding performance of duty as CG, USARJ/ICF, from 12 October 2010 through 21 March 2013. 2. On 22 May 2013, the DAIG received a complaint that the applicant failed to take appropriate action. a. On 8 June 2013, the applicant was suspended from his duties as the CG, USARJ/ICF. b. On 1 July 2013, he assumed duties as Director, PA&E, Office of the DCS, G-8, U.S. Army, Pentagon, Washington, DC. c. On 28 August 2013, the DAIG substantiated that the applicant failed to investigate allegations of misconduct by COL AF; failed to treat a subordinate, Ms. KI, with dignity, respect, fairness, and consistency; failed to flag COL AF; improperly directed an investigation of a sexual assault allegation that was the sole investigative responsibility of CID; and failed to take appropriate action to remove COL AF from a position of authority. d. On 18 November 2013, the VCSA issued the applicant an MOR based on the substantiated adverse information. (1) On 20 December 2013, the applicant submitted his rebuttal. (2) On 20 March 2014, the VCSA directed the MOR and rebuttal (with enclosures) be filed in the applicant's AMHRR. 3. Office of the Chief of Staff, Washington, DC, memorandum, dated 4 April 2014, shows the CSA relieved the applicant from duties as Commander, USARJ/ICF, effective 7 June 2013. The CSA stated, "My loss of confidence in your judgment was confirmed by the results of U.S. Army Inspector General Agency, Report of Investigation Number 13-019. Until further notice, you remain in your assignment as the Director, Program Analysis and Evaluation, Office of the Deputy Chief of Staff, G-8." 4. On 10 April 2014, the applicant was served notice that elimination proceedings had been initiated against him and he was required to show cause for retention on active duty. On 17 April 2014, applicant's counsel responded to an inquiry from the Deputy Judge Advocate General as to the applicant's intention. Counsel responded that the applicant intended to submit a request for retirement and waive his right to appear before a board of inquiry. 5. On 9 May 2014, the applicant requested retirement in lieu of elimination with a release from active duty date of 31 August 2014 and placement on the retired list, in the grade of MG, effective 1 September 2014. The SecArmy referred the applicant's official file and substantiated adverse information to an AGDRB upon receipt of his retirement application. 6. Office of the Chief of Staff, GOMO, Washington, DC, memorandum, undated, subject: AGDRB Recommendation [pertaining to the applicant] – Decision Memorandum, shows: a. On 12 May 2014, the applicant provided his matters and letters of support to the AGDRB for consideration by the board members. He requested that the AGDRB recommend to the SecArmy that he be permitted to retire in his current grade of MG (O-8). He asked the board to carefully balance his entire record of service in his current grade before and after the events that led to the process. He also asked the board conclude that his service as an MG was satisfactory. b. The AGDRB met on 23 May 2014. The substantiated adverse information and all supporting documents in the applicant's file were reviewed. The AGDRB forwarded the case, along with its recommendation, to the SecArmy for action. c. On 31 July 2014, the SecArmy directed the applicant be retired in lieu of elimination, in the grade of BG (O-7), effective 1 October 2014. 7. Office of the Chief of Staff, GOMO, Washington, DC, memorandum, undated, notified the applicant that the VCSA had downgraded the award of the Distinguished Service Medal to a Legion of Merit. The downgrade was necessitated by a consideration of the totality of the circumstances surrounding his tenure in command of USARJ/ICF. The applicant was afforded 14 days to appeal the action. 8. Permanent orders (PO) issued by Headquarters, U.S. Army (USA) Human Resources Command (HRC), Fort Knox, KY, pertaining to the applicant show: * PO 134-08, dated 14 May 2013, awarded him the Distinguished Service Medal for the period of service 12 October 2010 to 12 June 2013 * PO 195-04, dated 14 July 2014, awarded him the Distinguished Service Medal (1st Oak Leaf Cluster) for the period of service 1 September 2004 to 31 August 2014 * PO 350-12, dated 16 December 2014, revoked PO 134-08, dated 14 May 2013, pertaining to award of the Distinguished Service Medal for the period of service 12 October 2010 to 12 June 2013 * PO 350-13, dated 16 December 2014, awarded him the Legion of Merit (4th Oak Leaf Cluster) for the period of service 12 October 2010 to 12 June 2013 * PO 350-14, dated 16 December 2014, amended PO 195-04, dated 14 July 2014, to read award of the Distinguish Service Medal for the period of service 1 September 2004 to 31 August 2014 9. Headquarters, USA HRC, Fort Knox, KY, Orders 226-01, dated 14 August 2014, retired the applicant from active duty, effective 30 September 2014, and placed him on the retired list in the grade of rank of BG on 1 October 2014. 10. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 9 May 1980, was honorably retired from active duty on 30 September 2014, and transferred to the U.S. Army Reserve Control Group (Retired). He completed 34 years, 4 months, and 22 days of net active service this period and 2 months and 24 days of total prior active service. It also shows in: * item 4a (Grade, Rate, or Rank): MG * item 4b (Pay Grade): O08 * item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), corrected by a DD Form 215 (Correction to DD Form 214), issued on 18 December 2014, shows the – * Distinguished Service Medal * Defense Superior Service Medal * Legion of Merit (5th Award) * Bronze Star Medal * Defense Meritorious Service Medal (2nd Award) * Meritorious Service Medal (3rd Award) * Joint Service Commendation Medal * Army Commendation Medal (3rd Award) * Army Achievement Medal (3rd Award) * National Defense Service Medal (2nd Award) * Armed Forces Expeditionary Medal * Afghanistan Campaign Medal with 2 Bronze Service Stars * Global War on Terrorism Service Medal * Humanitarian Service Medal * Army Service Ribbon * Overseas Service Ribbon (4th Award) * North Atlantic Treaty Organization Medal * Joint Meritorious Unit Award * Army Superior Unit Award (2nd Award) * Expert Infantryman Badge * Ranger Tab * Parachutist Badge * Air Assault Badge * Joint Chiefs of Staff Identification Badge * Army Staff Identification Badge * item 18 (Remarks) does not show an entry for his retired list grade 11. The applicant's counsel provides, in pertinent part, the following documents that were not previously summarized in this Record of Proceedings or in counsel's memorandum in support of the application for relief. a. Letter of Concern issued by COL KRB, Deputy Commander, USARG/ICF, to COL AF, G-3, dated 8 June 2012, for public intoxication and perceptions of improper relationship with one of his MLC employees and by getting into an argument and raising his voice to his MLC employee. b. Electronic Form 1559 (DAIG Action Request System), dated 7 August 2012, that shows Mrs. KW, Administrative Assistant, G-3, USARJ/ICF, made a complaint to the IG office that COL AF, G-3, USARJ/ICF, was showing favoritism to and possibly having an inappropriate relationship with his secretary (Ms. KI). After conducting a preliminary analysis, the IG office in conjunction with the SJA briefed the CG, USARJ/ICF. The conclusion section shows, "Rather than direct an investigation under AR 15-6, the CG chose the combination of a Letter of Concern to the G-3, moving Ms. KI, and directing a Command Climate survey for the G-3 section to offer the best prospect of addressing and correcting the situation immediately." c. Emails and attachments reporting/documenting work-related issues pertaining to an MLC employee (Ms. KI) spanning the period February 2011 to August 2012. They include issues of time and attendance, workplace behavior and attire, inattentiveness during training, perceived preferential treatment and inappropriate relationship with the G-3, and questionable TDYs. d. DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) that shows the applicant appointed COL JEC as the AR 15-6 investigating officer (IO), on 11 February 2013, to investigate allegations of unprofessional conduct involving COL AF, Deputy Chief of Staff (DCS), G-3. Specifically, multiple complaints alleging reports of public intoxication, drunk and disorderly conduct, and inappropriate contact with various females at the Camp Zama Community Club. (1) On 28 February 2013, the IO found insufficient evidence to suggest violation of the Uniform Code of Military Justice (UCMJ), Article 120 (Rape, Sexual Assault, or Other Sexual Misconduct), Article 134-2 (Adultery), Article 134-2 (Drunk and Disorderly Conduct), Article 134-23 (Fraternization), Article 134-20 (Indecent Acts with Another), see Article 120. (2) The IO determined the findings reasonably established a pattern of behavior that constituted conduct unbecoming an officer and gentleman (Article 133, UCMJ). (3) The IO recommended the applicant initiate formal written counseling and administrative disciplinary action in the form of a GOMOR against COL AF, referral to the Army Substance Abuse Program (ASAP), and that he not be extended beyond his date of eligibility to return from overseas (July 2013). e. IG Action Request and statement (as corrected) filed by an MLC employee, Ms. KI, on 8 March 2013. She reported that an attempted sexual assault was committed and she was sexually harassed by COL AF, G-3, USARJ/ICF, from July 2011 to December 2012. She also reported that she was threatened by COL KB, DCG, USARJ/ICF, from August to December 2012. f. USARJ/ICF memorandum, dated 13 March 2013, that shows the applicant instructed the IO to incorporate additional allegations of misconduct into the AR 15-6 investigation that he was conducting pertaining to COL AF, G-3. The additional allegations included sexual assault (unwanted touching) and alleged sexual harassment based on the IG complaint filed by Ms. KI. The applicant also included further allegations that COL AF failed to treat Ms. KI with appropriate dignity, respect, fairness, and consistency; and that COL AF acted in a manner which would tend to dishonor or disgrace himself personally and seriously compromise his standing as an officer through his behavior toward and treatment of Ms. KI; a subordinate. g. On 22 March 2013, the IO to the AR 15-6 submitted an ROI pertaining to the additional allegations of misconduct against COL AF, G-3, USARJ/ICF. (1) The IO determined the findings reasonably constitute conduct unbecoming an officer and gentleman, as defined under Article 133, UCMJ; a preponderance of evidence supports allegations of sexual harassment (i.e., influencing the job of another person in exchange for sexual favors, and deliberate or repeated offensive comments or gestures of a sexual nature), in violation of Article 93 (Cruelty and Maltreatment); and probable suspicion of wrongful sexual contact (i.e., the intentional touching, either directly or through the clothing, of genitalia, anus, groin, breast, inner thigh, or buttocks of another person), in violation of Article 120. (2) The IO recommended the applicant initiate formal written counseling and administrative disciplinary action in the form of a GOMOR against COL AF, referral to the ASAP, that he be administratively removed from his position as DCS for Operations, G-3, USARJ/ICF, and reassigned to the United States. h. CID Sequence Number 0031-13-CID018, shows, on 20 May 2013, CID was notified through an AR 15-6 investigation of a possible wrongful sexual contact of a MLC employee (Ms. KI). i. U.S. Army IG Agency, ROI, Executive Summary, dated 28 August 2013, with exhibits. It shows, on 24 May 2013, The IG (TIG) directed DAIG to investigate senior leader actions [including those actions of the applicant] involved with the handling of sexual assault and misconduct allegations against subordinates. The ROI shows the following allegations and findings were substantiated: * failed to investigate allegations against a subordinate military member of his command * failed to treat a subordinate with dignity, respect, fairness, and consistency * failed to flag a subordinate * improperly directed an investigation that was the sole investigative responsibility of CID * failed to take appropriate action by not removing a senior officer from a position of authority j. Numerous statements from seniors, peers, and subordinates in support of the applicant's request to the ABCMR. (1) Seven statements from the following individuals: COL MRB, Deputy Commander for Clinical Services, dated 1 September 2014; COL JEC, Preventive Medicine Officer, dated 10 October 2014; COL MH, Deputy Commander, dated 4 October 2014; Major (MAJ) RJR (former Aide-de-Camp), dated 10 May 2015; MAJ WPG (former Aide-de-Camp), dated 29 July 2015; Sergeant Major SLP (then Command Sergeant Major, USARJ/ICF), dated 15 May 2015; and Mr. MN, Executive Assistant to the CG, USARJ/ICF, dated 20 September 2015. The individuals worked for the applicant during his tenure as CG, USARJ/ICF and are aware of the circumstances under review. All of the individuals offer very favorable comments about the applicant's personal character and professionalism. They also strongly dispute the finding that the applicant failed to treat employees with dignity, respect, fairness, and consistency. (2) A statement from Ms. KMAK, Civilian Deputy Director, Senior Executive Service, dated 20 October 2014. She served as the applicant's Deputy Director during his tenure as Director, PA&E, G-8. She states he has always been very candid and he shared with her information pertaining to the situation under review. She adds that he has always treated her as an equal and with the utmost respect. She provides favorable comments concerning his performance of duty and dedication to Soldiers and the U.S. Army. (3) A statement from Dr. TAR, U.S. Department of State, Bureau of African Affairs, Washington, DC, dated 18 November 2015. He states he personally interviewed the applicant at length and hired him to work as the Senior Director, Strategy and Partner Engagement. (Applicant's counsel previously provided a summary of the letter.) (4) A statement from MG BLP, Deputy Chief of Staff, G-1, dated 30 April 2015, who has known and served with the applicant since 2000. He provides a summary of his history with the applicant and the impact the applicant has had on him. He is fully aware of the DAIG findings and believes retirement of the applicant as a BG is simply "unjust" because the applicant more than met and exceeded the mark for satisfactory service as an MG. He adds he firmly believes that the mandate which required by law, to turn matters concerning sexual assault over to CID, did not become standard practice until implementation of the Fiscal Year 2014 National Defense Authorization Act (Section 1742). (5) A statement from GEN BSG, U.S. Army (Retired), to the CSA and SecArmy. He states he has known the applicant for over 10 years and the applicant worked directly for him for 3 years in the G-8. He also states the applicant informed him of the circumstances which led to his premature retirement. He believes the mistakes the applicant made in this case were isolated and due to a lack of understanding, coupled with unclear guidance. (6) A statement from LTG FJW, U.S. Army (Retired), dated 20 January 2015. He states, in pertinent part, he served as the CG, USARPAC, and the applicant served as one of his major subordinate commanders during the period of service under review. He has reviewed all of the documents related to the matter under review. He states, "The hallmark of his [the applicant's] command philosophy was live by the Golden Rule; he preached it, practiced it, and led his formation with humility, fairness, and respect." He asserts, "There is no 'finding' of misconduct against [the applicant]." He adds, "Yes, [the applicant] was responsible for the administrative mistakes made in the conduct of his duties, which he [the applicant] readily admitted, but those mistakes certainly do not rise to the level of punishment he received. Reprimand, relief, and reduction in grade for retirement is a 'life time penalty' normally issued for egregious acts of misconduct." (7) A statement from GEN JFC, Commander, Resolute Support/United States Forces–Afghanistan (RS/USF-A) (and former VSCA), dated 9 June 2015. He has known the applicant professionally and personally for over 18 years. He states the applicant is a person of exemplary character, competence, judgment, integrity, personal courage, a model professional, and an inspirational leader of principle. He noted that it is important to understand what the applicant was willing and able to do for the Army after his public suspension from command and the accompanying public humiliation for him and his family. Without hesitation, the applicant accepted the position of Director, PA&E (arguably one the Army's most difficult and least sought after jobs for an MG) and he excelled at it. He notes that he worked with the applicant during the 14 months he held the position and he did a remarkable job. He adds that the applicant's total service as an MG clearly merits retirement in that grade. 12. During the conduct of this case, a review of the Official Military Personnel File (OMPF) of COL AF (former G-3, USARJ/ICF) was also conducted pertaining to the period of service under review. It shows the successor commander (MG JCB, CG, USARJ/ICF) took the following actions against COL AF: a. On 21 November 2013, he appointed [the same] IO to investigate allegations pertaining to COL AF's interactions with an employee, Ms. KI, that COL AF provided preferential treatment based on an improper personal relationship [not herein further detailed]. (1) On 26 February 2014, the IO to the AR 15-6 submitted an ROI pertaining to the allegations of misconduct against COL AF, G-3, USARJ/ICF. (2) The IO determined by a preponderance of the evidence that the allegations against COL AF were substantiated. The IO also provided his recommendations. (3) On 28 February 2014, the appointing authority approved the findings of the investigation. The IO's recommendations were neither approved nor disapproved, but were noted. He directed the chain of command determine, as appropriate, what, if any further action was warranted. b. On 14 March 2014, he issued him a GOMOR for – * wrongfully touching his subordinate MLC local national employee administrative assistant on her breasts on or about 20 July 2012 during a TDY trip to Hawaii, in violation of Article 120, UCMJ * improperly providing preferential treatment to his subordinate MLC administrative assistant and for improperly using government resources through misuse of a subordinate's time, in violation of the Joint Ethics Regulation * improperly using government resources for TDY travel with respect to his subordinate MLC administrative assistant, in violation of the Joint Federal Travel Regulations c. He directed a Relief for Cause OER as Assistant Chief of Staff, G-3, USARJ/ICF, for the period 27 March 2013 through 31 March 2014. d. He issued him a DA Form 2627 (Record of Proceedings under Article 15, UCMJ) on 3 March 2014: (1) for violation of: * Article 128 (five specifications) – * on 18 January 2013, unlawfully grabbing a female noncommissioned officer (NCO) around her back and on her leg with his arms and attempting to pick her up * on 25 January 2013, unlawfully striking the same female NCO on her head with his hand * on 25 January 2013, unlawfully grabbing another female NCO on the arm with his hand and forcibly pulling her onto a dance floor * on 2 June 2012, unlawfully rubbing Mrs. AT on the leg with his leg * on 2 June 2012, unlawfully grabbing Ms. AM on the arm with his hand and forcibly pulling her onto a dance floor * Article 134, from July 2011 until July 2012, for wrongfully engaging in an inappropriate personal relationship with his subordinate administrative assistant, Ms. KI, and that said conduct was to the prejudice of good order and discipline in the armed forces (2) In a closed hearing, the applicant presented matters in defense, extenuation, and/or mitigation. The commander found him guilty of all specifications. (3) COL AF appealed the nonjudicial punishment to the next superior authority (i.e., Commander, USARPAC). (4) On 4 April 2014, GEN VKB, CG, USARPAC, considered all matters presented in the appeal and granted the appeal by dismissing the specification pertaining to Article 134. He also mitigated the punishment imposed by the CG, USARG/ICF. e. COL AF retired from active duty on 31 July 2014 and was placed on the retired list in the grade of rank of lieutenant colonel/pay grade O-5. REFERENCES: 1. Title 10, USC, section 1370 (Commissioned officers: general rule; exceptions), subparagraph a (Rules for retirement in the highest grade held satisfactorily), provides that unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps 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 concerned, for not less than six months. 2. AR 20-1 (IG Activities and Procedures) prescribes policy and procedures concerning the mission and duties of TIG. It also prescribes duties, missions, standards, and requirements for IGs throughout the Army. Responsibilities are prescribed for commanders; State Adjutants General; and heads of agencies, activities, centers, and installations for the support of IG activities. Chapter 7 (TIG Investigations Function), paragraph 7-1 (IG investigations – purpose and procedures), subparagraph l (Allegations against a senior official), provides that commanders or IGs must forward directly to DAIG's Investigations Division through IG communications any and all allegations of impropriety or misconduct (including criminal allegations) against senior officials – defined as general officers (including Army National Guard of the United States, U.S. Army Reserve, and retired general officers), promotable colonels, and Senior Executive System civilians – within 2 working days of receipt. a. IGs will record all referrals of allegations against senior officials in the IG Action Request System database in accordance with the guidance outlined in "The Assistance and Investigations Guide." IGs will not conduct any fact-finding into the nature of the allegations unless authorized by TIG, Deputy TIG, or the Chief of DAIG's Investigations Division. b. Only the SecArmy, the Under SecArmy, the CSA, the VCSA, and TIG may authorize or direct an IG investigation or investigative inquiry into allegations of improprieties or misconduct by a senior official or an individual of equivalent grade or position. As a matter of Army policy, when such allegations are suspected against a senior official or discovered during a non-IG investigation or inquiry (such as a commander's inquiry, an AR 15–6 investigation, or CID investigation), the commander or command concerned will halt the inquiry or investigation and report the allegations through IG communications within 2 working days to DAIG's Investigations Division for further action. As a specific exception, Equal Employment Opportunity and Anti-Deficiency Act inquiries or investigations may continue even if they involve senior officials as long as DAIG's Investigations Division has been notified. 3. AR 600-20 (Army Command Policy), in effect at the time, prescribes the policy and responsibility of command, which includes readiness and resiliency of the force, military and personal discipline and conduct, the Army Equal Opportunity Program, Prevention of Sexual Harassment (POSH), and the Army Sexual Assault Prevention and Response Program and the Sexual Harassment/Assault Response and Prevention Program. a. Chapter 5 (Other Responsibilities of Command), paragraph 5-8 (Complaints or accusations against military personnel), provides guidelines for implementation. The policies outlined in this paragraph are intended to provide broad and general guidance. The Inspector General Action Request System (IGARS) is governed by AR 20–1. Accusations of a criminal nature are reported and investigated according to AR 195-1. Complaints by Soldiers and family members of discrimination based upon race, color, religion, national origin, and gender (including sexual harassment) follow the procedures set forth in Chapter 6 (The Equal Opportunity Program in the Army) and Chapter 7 (Prevention of Sexual Harassment (POSH)). When commanders are apprised of complaints or accusations against military personnel, they will be expected to inquire into the matter and attempt a resolution. b. Chapter 7 (POSH) is a commander's responsibility. The Equal Opportunity Agency plays a pivotal role by assisting the commander with policy awareness, training, command climate assessments, complaints processing, and overall advisory assistance concerning the POSH. Paragraph 7-9 (Complaints) shows the filing and processing of sexual harassment complaints follow the same procedures as outlined in Appendix D (Command Climate Survey) for equal opportunity complaints. Charges of sexual misconduct are to be processed through legal and/or law enforcement channels, not equal opportunity channels. c. Chapter 8 (Sexual Assault Prevention and Response (SAPR) Program) provides the purpose and goals of the program. The SAPR Program reinforces the Army's commitment to eliminate incidents of sexual assault through a comprehensive policy that centers on awareness and prevention, training and education, victim advocacy, response, reporting, and accountability. It shows, in pertinent part, in: (1) paragraph 8-2 (Sexual Assault Policy), every Soldier who is aware of a sexual assault should immediately (with 24 hours) report incidents; and (2) paragraph 8-5 (Responsibilities) – * subparagraph g, that the SJA or those personnel under the supervisory authority of the installation SJA will notify law enforcement of an officially reported sexual assault if they have not been previously notified * subparagraph o, unit commanders will report all incidents of sexual assault to – * the office of the SJA within 24 hours * CID in accordance with AR 195-1 4. AR 195-2 (Criminal Investigation Activities), in effect at the time, establishes policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to CID elements. It also delineates responsibility and authority between Military Police and CID. Chapter 3 (Criminal Investigation Activities), paragraph 3-3a, shows the CID is solely responsible for investigating felonies (offenses punishable by death or confinement for more than 1 year) listed in Appendix B (Offense Investigative Responsibility). Appendix B, Table B-1 (Offense Investigative Responsibility) lists, in pertinent part, Rape, Rape of a Child, Aggravated Sexual Assault, Aggravated Sexual Assault of a Child, Aggravated Sexual Contact, Aggravated Sexual Abuse of a Child, Aggravated Sexual Contact with a Child, Abusive Sexual Contact, Abusive, Sexual Contact with a Child, Indent Act, Forcible Pandering, and Wrongful Sexual Contact. 5. AR 600-8-2 (Suspension of Favorable Personnel Actions (Flag)) prescribes policies, operating rules, and steps governing the suspension of favorable personnel actions, hereafter referred to as "flag." Chapter 2 (Policy and Management of Flags), paragraph 2-1, in pertinent part, shows: a. The purpose of a flag is to prevent and/or preclude: (1) execution of favorable actions to a Soldier who may be in an unfavorable status (not in good standing); and (2) movement of a Soldier when it is in the best interests of the Army for the Soldier to remain in his or her current unit or at his or her current location until cleared of ongoing actions. Should the command determine that it is in the best interests of the Army to permanent change of station the Soldier even though he or she has not been cleared of ongoing actions, the command may do so in accordance with paragraph 2–8: however, the flag will remain in place. b. Commanders and general officer staff heads will establish necessary internal controls to ensure the following requirements are met: (1) A DA Form 268 (Suspension of Favorable Personnel Actions (Flag)) is prepared to reflect favorable personnel actions are suspended with regard to the affected Soldier and the flag is input into human resource systems without delay. (2) Only those with a "need to know" of a flag are informed. A person has a "need to know" only if he or she must have access to knowledge or possession of the flag, in order to perform official duties. 6. AR 15-80 establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the SecArmy. Chapter 2 (General) provides in: a. paragraph 2-4, that a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay. Although a lower grade determination may affect an individual adversely, it is not punitive. Generally, a determination will be based on the Soldier's overall service in the grade in question, either on active duty or other service qualifying the Soldier for service/physical disability retirement, receipt of retired pay, or separation for physical disability. Circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the following – * medical reasons (that may have been a contributing or decisive factor in a reduction in grade, misconduct, or substandard performance) * compassionate circumstances * length of time in grade * active duty service obligation * performance level (as reflected in evaluation reports) * nature and severity of misconduct, if any * the grade at which the misconduct was committed b. paragraph 2-5, that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when – * the highest grade was a result of a terminal leave promotion * reversion to a lower grade was expressly for – * prejudice or cause * owing to misconduct * caused by NJP pursuant to UCMJ, Article 15 * the result of the sentence of a court-martial * 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 a determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade. However, service retirement in lieu of or as the result of elimination action will not, by itself, preclude retirement in the highest grade. 7. AR 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations. a. The Distinguished Service Medal is awarded to any person who, while serving in any capacity with the U. S Army, has distinguished himself or herself by exceptionally meritorious service to the Government in a duty of great responsibility. The performance must be such as to merit recognition for service which is clearly exceptional. Exceptional performance of normal duty will not alone justify an award of this decoration. For service not related to actual war, the term "duty of great responsibility" applies to a narrower range of positions than in time. b. The Legion of Merit is awarded to individuals who distinguish themselves by exceptionally meritorious conduct in the performance of outstanding services and achievements. The performance must merit recognition of key individuals for service rendered in a clearly exceptional manner. Performance of duties normal to the grade, branch, specialty, or assignment and experience of an individual is not an adequate basis for this award. In peacetime, service should be in the nature of a special requirement or an extremely difficult duty performed in an unprecedented and clearly exceptional manner. c. An oak leaf cluster is authorized for wear for each additional award of certain decorations, including the Distinguished Service Medal and the Legion of Merit. 8. AR 635-8 (Personnel Separations - Separation Documents and Processing) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It also establishes standardized policy for preparing and distributing the DD Form 214. a. Chapter 5 (Preparing Separation Documents) contains guidance on the preparation of the DD Form 214. It shows the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The source documents for entering information on the DD Form 214 will be the Soldier's record brief, separation approval documents, separation order, and any other document authorized for filing in the AMHRR. b. Paragraph 5-6 (Rules for completing the DD Form 214) provides detailed instructions for data required in each block of the DD Form 214. In pertinent part, it shows for item 18, in accordance with Army Regulation 15-80, officers who have been determined to have not served satisfactorily in their highest or current grade will have their retired grade noted, or show the retired list grade if different from the current grade. Enter "RETIRED LIST GRADE" (specify the appropriate grade). DISCUSSION: 1. The evidence of record, in pertinent part, shows: a. On 7 August 2012, an administrative assistant in the G-3 section, USARJ/ ICF, made a complaint to the local IG's office that COL AF, G-3, was showing favoritism to and possibly having an inappropriate relationship with his secretary, an MLC employee, Ms. KI. b. After conducting a preliminary analysis, the staff IG and SJA briefed the applicant on possible courses of action (COA). One briefed COA included the applicant issuing a letter of concern to COL AF, moving Ms. KI from the G-3 section, and directing a Command Climate survey for the G-3 section. This is the COA the applicant followed. There is no evidence of record that shows the staff IG or the SJA reported the complaint/allegations to law enforcement/CID. In November 2012, the applicant denied Ms. KI's request to return to her former positon in the G-3 section. c. On 11 February 2013, the applicant directed an AR 15-6 investigation of COL AF to look into allegations of public intoxication, drunk and disorderly conduct, and inappropriate contact with various women at the Camp Zama Community Club. On 28 February 2013, the IO determined the findings reasonably established a pattern of behavior that constituted conduct unbecoming an officer and gentleman. In response, the applicant formally counseled COL AF in writing. d. On 8 March 2013, Ms. KI filed a complaint with the IG alleging that an attempted sexual assault was committed and that she was sexually harassed by COL AF from July 2011 to December 2012 while they were TDY in Hawaii. She also reported that she was threatened by COL KB, DCG, USARJ/ICF, from August 2012 to December 2012. (1) On 13 March 2013, after consulting with the staff IG and SJA, the applicant instructed the IO to incorporate additional allegations into the ongoing AR 15-6 investigation. The IG and SJA advised the applicant that the allegations could be referred to CID after the AR 15-6 investigation was completed, if warranted. (2) This advice was erroneous and resulted in a substantiated allegation of rendering such inaccurate advice against the SJA. There is no evidence of record that shows the staff IG or the SJA reported the complaint/allegations to law enforcement/CID. e. On 22 March 2013, the IO determined the findings reasonably established a pattern of behavior that constituted conduct unbecoming an officer and gentleman; a preponderance of evidence supported allegations of sexual harassment, and probable suspicion of wrongful sexual contact. (1) The IO recommended the applicant initiate formal written counseling and administrative disciplinary action in the form of a GOMOR against COL AF, refer him to the ASAP, and administratively remove him from his position. (2) The applicant prepared a GOMOR to be issued to the G-3. f. On 17 May 2013, the CSA issued an Army-wide message concerning sexual assault and sexual harassment that emphasized every allegation of sexual assault and sexual harassment be thoroughly and professionally investigated and that appropriate action be taken. g. On 20 May 2013, CID was notified (through the AR 15-6 investigation) of possible wrongful sexual contact of an MLC employee (Ms. KI). h. On 24 May 2013, TIG directed DAIG to investigate senior leader actions (including those actions of the applicant) involved with the handling of sexual assault and misconduct allegations against subordinates. i. On 8 June 2013, the applicant was suspended from his duties as the CG, USARJ/ICF. j. On 1 July 2013, the applicant assumed duties as Director, PA&E, Office of the DCS, G-8, U.S. Army, Pentagon, Washington, DC. k. On 28 August 2013, the DAIG substantiated the allegations that the applicant failed to investigate allegations of misconduct committed by a subordinate (COL AF); failed to treat a subordinate, Ms. KI, with dignity, respect, fairness, and consistency by not referring her complaint to CID; failed to flag COL AF; improperly directed an investigation that was the sole investigative responsibility of CID by referring the sexual assault allegation to the AR 15-6 investigation; and failed to take appropriate action to remove COL AF from a position of authority. l. On 18 November 2013, the VCSA issued the applicant an MOR based on the substantiated adverse information. m. On 4 April 2014, the CSA officially relieved the applicant from his duties as CG, USARJ/ICF, effective 7 June 2013, based on a loss of confidence in the applicant's judgment. He directed the applicant remain in his assignment as the Director, PA&E, Office of the DCS, G-8. 2. With respect to the five DAIG substantiated findings that the applicant: a. Failed to investigate allegations against a subordinate military member of his command. The evidence of record shows he directed an AR 15-6 on the G-3 (COL AF) on 11 February 2013 and he directed the IO investigate additional allegations against the officer on 13 March 2013. b. Failed to treat a subordinate with dignity, respect, fairness, and consistency. The evidence of record shows he responded to a complaint by an employee of an inappropriate relationship within the G-3 section by having the named officer investigated, moving the MLC employee from the potentially unsafe duty environment, and directing a Command Climate survey of the G-3 section. Then, when the MLC employee filed a complaint alleging that an attempted sexual assault was committed (8 months earlier) and that she was sexually harassed, the applicant directed the allegations of misconduct be incorporated into the ongoing AR 15-6 investigation. CID was then notified through the AR 15-6 investigation of a possible wrongful sexual contact of an MLC employee. c. Failed to flag a subordinate. The purpose of a flag, in pertinent part, is to prevent and/or preclude execution of favorable actions to a Soldier who may be in an unfavorable status (not in good standing). Commanders and general officer staff heads are to establish necessary internal controls to ensure a DA Form 268 is prepared and appropriately distributed so that only those with a "need to know" of a flag are informed. The administrative processing of a flag (DA Form 268) is the responsibility of the unit commander. While the administrative requirement to flag the individual may not have been accomplished, the evidence of record fails to show the officer (COL AF) received or benefited from any favorable personnel actions. d. Improperly directed an investigation that was the sole investigative responsibility of CID. (1) There is no evidence of record that shows the staff IG or SJA referred the complaint/allegations to CID as required by Army regulation. (2) The evidence of record shows the applicant's key staff members (IG and SJA) advised him that an AR 15-6 investigation could be conducted and the allegations could be referred to CID after the AR 15-6 investigation was completed. (3) On 20 May 2013, the AR 15-6 investigation was referred to CID. e. Failed to take appropriate action by not removing a senior officer from a position of authority. There is no evidence of record that shows the applicant took action to remove COL AF from the position of DCS, G-3, USARJ/ICF. 3. The evidence of record shows the applicant made command decisions related to the matter under review that were in error. a. The applicant failed to have allegations of sexual harassment/sexual assault against a subordinate military member of his command properly investigated. However, he did direct an AR 15-6 investigation into the allegations. b. With an understanding of the Army's then-growing focus on sexual harassment and sexual assault, coupled with the timeline concerning the matter under review (as above), the applicant's decisions and actions are more clearly understood. He relied upon the (mistaken) advice of his staff. Then, with the renewed emphasis on investigating these matters and the applicant becoming aware of his error, he took immediate action to ensure the matter was referred to the appropriate authority (CID). c. It does not appear that the applicant's actions constituted intentional misconduct (i.e., intentional wrongdoing, improper behavior). 4. The evidence of record shows the former G-3, USARJ/ICF, received nonjudicial punishment for violation of the UCMJ, Article 128 (five specifications) and Article 134 (for wrongfully engaging in an inappropriate personal relationship with his subordinate administrative assistant, Ms. KI, and that said conduct was to the prejudice of good order and discipline in the armed forces). He appealed the action to the CG, USARPAC. On 19 March 2014, the appeal authority dismissed the charge and specification pertaining to Article 134. 5. The applicant was promoted to the rank of MG (O-8) in December 2009, giving him nearly 5 years of time in grade as a MG. His OERs document his outstanding performance during his assignments as a MG. An AGDRB would have had ready, electronic access to the applicant's OMPF during deliberations and as such would have had ready access to the applicant's evaluations. Presuming regularity in government actions, the Board reviewed the applicant's evaluations, and the applicant has not demonstrated the AGDRB did not adequately consider the applicant's performance during the rating period. Given the length of service as an MG, the nature of the three assignments, the positive letters in support, and the recommendation of the AGDRB and reviewing authorities, there was ample evidence available to the Secretary to indicate the otherwise positive nature of the applicant's service, and it is axiomatic that had the Secretary required additional information regarding the applicant's service or the actual evaluation reports in order to reach his decision, that the Secretary would have access to such evaluations. 6. In December 2014, subsequent to the applicant's retirement, his award of the Distinguished Service Medal for the period of service 12 October 2010 to 12 June 2013 was downgraded to an award of the Legion of Merit (i.e., for exceptionally meritorious conduct in the performance of outstanding services and achievement) for the same period of service (12 October 2010 to 12 June 2013). He was also awarded the Distinguished Service Medal for the period of service 1 September 2004 to 31 August 2014. The senior Army leadership directed these award actions with knowledge of the SecArmy's decision to retire the applicant from active duty in grade MG and place him on the retired list in grade of BG. 7. Counsel argues that the record before the Secretary of the Army was materially incomplete in that it did not provide complete and essential information about the full period of applicant’s duty performance and service as an MG. The gist of counsel’s argument is that if the documents presented to SecArmy had included applicant’s OERs as an MG, the Secretary might have decided to retire applicant in that grade. a. Counsel cites to no law or regulation that requires the Secretary to read, review, or consider any particular document or documents. The statute governing the Secretary’s duties relative to general officer grade determinations merely provides that general officers who are not generals or lieutenant generals shall be retired in the highest grade in which they served on active duty satisfactorily “as determined by the Secretary ….” See 10 U.S.C. § 1370(a)(1), and (c)(1). There is no requirement that the Secretary review OERs as a prerequisite to making a grade determination. Consequently, applicant’s counsel has not demonstrated by a preponderance of evidence that applicant was erroneously denied due process such that a records correction is warranted. b. Implicit in counsel’s argument is that an injustice occurred because the Secretary of the Army did not review and consider the excellent OERs the applicant received while serving as an MG. As an initial matter, it is not certain that the Secretary did not review these OERs. As Secretary of the Army, he certainly had access to applicant’s entire official military file. But even assuming (without conceding) that the Secretary forwent the opportunity to review applicant’s OERs, he likely would have done so because: 1) the Secretary was already familiar with applicant’s career and exceptional duty performance; 2) he had before him the applicant’s ORB and resume to augment his existing familiarity; and 3) he made the eminently reasonable assumption that applicant’s OERs as an MG were uniformly superb – which they are. But superb OERs are the norm for general officers and are therefore of limited probative value in cases such as applicant’s. More relevant in general officer grade determinations is the severity of the derogatory information and the sufficiency of the evidence supporting that information. It is quite likely the Secretary’s time and attention were drawn to these issues. Applicant’s counsel has therefore failed to demonstrate that the Secretary’s actions were unreasonable or that the Secretary would have reached a different decision if only he had read applicant’s excellent OERs. Consequently, applicant’s counsel has failed to demonstrate an injustice that warrants remediation. 8. Counsel’s next argument is that the record before the Secretary of the Army did not provide a fair balance between the adverse information and applicant’s otherwise distinguished service as an MG, and therefore could not justly serve as the basis for concluding that he should retire at the lower grade. This argument is similar to counsel’s first argument. In support of his assertion, counsel cites to flattering language applicant received in his OER from LTG FJW and from the citations for two Distinguished Service Medals he received as an MG. But as before, it is not a certainty that the Secretary did not review this information. And also as before, counsel does not cite to any law or regulation that affirmatively requires the Secretary to review this information before making a grade determination. Given that the cited language in the OERs and the award citations is not atypically commendatory for general officer OERs or awards, counsel cannot persuasively argue that the Secretary’s decision would probably have been different had he read the OER and citation language. Applicant’s counsel has therefore failed to demonstrate an injustice or error that warrants correction. 9. Counsel argues that congressional and media attention drawn to egregious conduct of other general and flag officers likely influenced the Secretary’s decision to retire applicant at the grade of brigadier general. a. Counsel’s argument in this regard is highly speculative. Nothing in the record indicates that the Secretary was improperly influenced by any Congressional or media scrutiny relative to other general or flag officers. Moreover, it cannot seriously be argued that the Secretary should have intentionally sequestered himself from information about infractions occasioned by other high-ranking officers in order to remain untainted when deciding applicant’s grade determination. b. As for the Washington Post and other media outlets perhaps conflating applicant’s misbehavior with other senior officers’ misconduct, one must assume that the SecArmy is sophisticated enough to remain neutral and detached despite the media attention these other cases attracted. As such, the applicant has not demonstrated that congressional and media attention about other general and flag officer misconduct unfairly tainted the process relative to applicant’s case. 10. Counsel next argues that the unique circumstances surrounding the issues that ultimately led to the applicant receiving a GOMOR mitigate whichever mistakes the applicant made and warrant relief on applicant’s behalf. Most prominent among counsel’s list of unusual circumstances is that applicant’s SJA advised him to choose the particular course of action that ultimately got the applicant into trouble. Counsel makes an excellent point when he highlights the fact that the applicant’s decision not to immediately refer the sexual assault allegations to CID was endorsed by his SJA, a Judge Advocate Colonel, and the local Inspector General. These clearly are mitigating factors. However, these facts were argued in the applicant’s 20 December 2013 memorandum to the VCSA and in other documents ultimately reviewed by the Secretary of the Army. Consequently, the Secretary was aware of the mitigating circumstances surrounding the issues that led to the applicant receiving the written reprimand. After reviewing this information, the Secretary exercised his discretion and determined that applicant’s service as an MG was nevertheless unsatisfactory, despite the mitigating factors. Although applicant’s counsel appropriately highlights the fact that the SJA and the IG endorsed his actions, applicant’s counsel asks too much when he implies that such advice should effectively shield and insulate senior leaders from criticism when those actions are later revealed to be incorrect. Consequently, applicant’s counsel has not demonstrated by a preponderance of evidence that the mitigating circumstances regarding applicant’s case renders unreasonable the Secretary’s decision to retire the applicant as a BG. 11. Counsel next asserts that the applicant’s placement and duty performance as Director, PA&E (Program Analysis and Evaluation), are inconsistent with the Secretary’s subsequent decision to deem unsatisfactory his service as an MG. But the Army’s decision to place applicant in a position of high importance and the Secretary’s later decision to reduce his retirement grade are not logically inconsistent. Despite the actions that generated his GOMOR, the applicant still was a highly-trained and talented leadership asset for the Army. The Army decided to leverage those talents even after the IG investigation substantiated the applicant’s regrettable decisions. None of this undermines the Secretary’s later determination that the applicant’s overall service as an MG was not satisfactory. The two decisions are separate and distinct and were designed to achieve very different goals. Relief based on these assertions is therefore not warranted. 12. Counsel argues that the Secretary’s decision to retire the applicant in the grade of BG is not in the best interests of the Army. In support of this argument, counsel proffers a statement from the former VCSA, GEN JFC, who notes that he was “more aware than most” of the events that led to the applicant’s retirement grade reduction, yet who also asserts [c]onsidering the totality of [applicant’s] service as a Major General, this reduction in grade … was and is unjust and unfair. [Applicant] served honorably and with distinction for more than 57 months as a major general in three successive challenging jobs. His duty as Commander, [USARJ], during the recovery from the tsunami and earthquake is especially noteworthy in its importance to Japanese-American relations …. [Applicant’s] total service as a major general clearly merits retirement in that grade. This corrective action is in the best interests of the Army. Although GEN JFC provides a compelling narrative of applicant’s strengths as a leader, his assertion that applicant’s retirement grade reduction was not “in the best interests of the Army” merely amounts to an opinion at odds with the Secretary’s regarding this matter. After reviewing the case to his satisfaction, the SecArmy determined that reducing applicant’s retirement grade was, in fact, in the Army’s best interest. GEN JFC’s differing opinion in this regard does not demonstrate an error or injustice. 13. Counsel’s final argument is that applicant has suffered adverse consequences disproportionate to his mistakes and that the Secretary’s decision to retire him as a brigadier general only worsens the disproportionality. Counsel highlights the fact that applicant was unfairly removed from a civilian position due to adverse publicity about applicant’s situation; the denial of further military career progression; retroactive relief from command; the financial impact of reduced retirement pay; and the indignity he suffered by having an award downgraded. Counsel characterizes these actions, and the Secretary’s decision to reduce his retirement grade, as “punishment.” But AR 15-80, the Army regulation governing Army grade determinations, in paragraph 2-4f makes clear that [a]lthough the punishment an individual has received may be one factor in determining the seriousness of misconduct, the amount of punishment will not be considered in determining whether “the individual has been punished enough.” Grade determinations are not considered punitive, and the standard for grade determinations is “highest grade satisfactorily served,” not whether the individual has been sufficiently punished. Thus, the salient issue is not whether applicant was “punished enough”; instead it whether his overall service as an MG was satisfactory. In this regard, the applicant and his counsel have failed to demonstrate that the Secretary’s decision to reduce the applicant’s retirement grade was arbitrary, capricious, or unreasonable. 14. The applicant's award actions and evaluations reflect lengthy service as an MG and a positive endorsement by senior leadership for the applicant's service as a MG. Service Secretaries, however, have wide latitude in determining satisfactory service and are not constrained by the evaluations or recommendations of subordinate officers. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009144 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160009144 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2