IN THE CASE OF: BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150009801 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 IN THE CASE OF: BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150009801 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. IN THE CASE OF: BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150009801 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his military record to: a. overturn the Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)) approval of the Army Grade Determination Review Board's (ADGRB) recommendation to reduce his rank and grade on the Retired List from colonel (COL/O-6) to lieutenant colonel (LTC/O-5); b. to show in item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) the entry "RETIRED LIST GRADE: COL" instead of "RETIRED LIST GRADE: LTC"; and c. personal appearance before the ABCMR. 2. The applicant states: a. The AGDRB’s recommendation and DASA’s decision were both in error or unjust. b. A single incident of misconduct made under duress over a short period of less than 2 weeks does not outweigh 5 years and 7 months of service as a COL in the U.S. Army. c. He lists the position titles he held with a narrative description of the corresponding duties he performed from the time of his promotion to COL through the date of his retirement including a 24-month period where he served as a brigade commander. d. The alleged misconduct mentioned in the Army Regulation (AR) 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation did not take place. e. When LT B______, a U.S. Navy officer, opened the conference room door she was surprised and startled to see Ms. A_____ and himself inside. She remained in the entryway briefly, made an incorrect assumption regarding their assumed activities, and subsequently reported what she thought she saw. f. He and Ms. A_______ were not engaging in sexual misconduct. g. The emails analyzed and offered were flirtatious and suggestive but were not conclusive proof that any misconduct ever took place. h. The general officer letter of reprimand incorrectly concludes he was kissing and engaging in inappropriate sexual conduct. i. The entire allegation, subsequent investigation, and adverse administrative actions are solely based on what LT B_____ thought she saw. j. He and Ms. A_____ kissed and embraced, nothing more. k. He did not use his rank, position, or authority to influence LT B_____, and while the investigating officer indicated he was her supervisor, he was not her direct supervisor but instead superior in grade and her senior rater. l. At no time did he give direction or an order to LT B____ to do anything illegal, immoral, or unethical, but simply asked her not to report an inaccurate interpretation of events. m. He did not make any false official statements regarding his relationship with Ms. A_____ or the alleged events of 9 December 2011 in the CJ3 Conference Room. He provided a lengthy detailed statement during the beginning of the 15-6 investigation that included a single small inaccuracy regarding the number of times Ms. A_____ and he met on a personal level. n. The recommendation and decision are unjust because of the continual adverse effects and impact placed upon his family, his ability to secure employment, and upon him mentally and physically. Each time a friend or peer inquire regarding retirement, each time he applies for a new position, each time a military event occurs that he and his family are excluded from, they are all reminded of the outcome and lasting decision of the DASA’s decision based on the AGDRB’s recommendation. q. The decision to place him on the retired list as an LTC is a constant reminder that there is no second chance or opportunity for a fresh clean start. It also neglects the service and sacrifice of a family who often went without a father to attend school activities and programs, who saw an empty chair at the dinner table, and went without him on family vacations for 5 years and 7 months. r. He remains professionally and personally embarrassed by the effects of the incident and his decisions during a very stressful time that resulted in his reprimand, relief for cause, earlier than planned retirement. s. Without minimizing the seriousness of this single incident, LT B_____ was incorrect in her conclusions regarding his activities in the conference room on 9 December 2011, Brigadier General (BG) K_____ was incorrect in concluding the misconduct took place, and Major General G_____ was incorrect in issuing a letter of reprimand, as all conclusions drawn were based on perceived inappropriate behaver. t. It is his belief that a single incident of a perceived inappropriate relationship in an otherwise exemplary 27 year career cannot be more significant than the service and numerous accomplishments amassed in 5 years and 7 months as a COL. u. Despite this one incident, he believes his overall service to the Nation and the Army is honorable and should be reflective as such upon his retirement in the grade of COL and his placement on the Retired List in the rank of COL. 3. The applicant provides: * self-authored memorandum dated 20 May 2015 * Office of the Assistant Secretary memorandum dated 12 April 2012 * DD Form 214 * 28 additional documents identified in a list CONSIDERATION OF EVIDENCE: 1. The applicant accepted an appointment in the rank of second lieutenant (2LT/O-1) in the Army of the United States, executed his oath of office, and entered active duty on 22 May 1985. He served in a variety of staff or command assignments and he received promotions through the ranks to COL on 1 October 2006. 2. His records include the following DA Forms 67-9 (Officer Evaluation Reports) rating him while he held the rank of COL//O-6 during periods shown as indicated: * 20060503-20071130 (Professor, United States Naval War College) a change of duty report, 4 months rated period, above center of mass (ACOM) with his senior rater, a senior executive service civilian/01, stating out of the 4 officers he rated in his command, the applicant ranked as his top 5 percent assigned to the war college, he is widely respected by peers and leadership and already selected for brigade command, clearly one of the Army’s great future leaders * 20070627-20080626 (Commander of the 199th Infantry Brigade) an annual report, 12 months rated period, ACOM report with his senior rater, a major general (MG), stating out of the 19 officers he rated in his command, the applicant ranked as his top choice for promotion to general officer and indicating no other officer in the Army has done more to improve officer education than the applicant * 20080627-20090510 (Commander of the 199th Infantry Brigade), change of rater report, 10 months rated period, ACOM with his senior rater, an MG, repeatedly stating the applicant’s magnificent performance ranked in the top 1 percent of COLs, he has the most potential for promotion to BG; he is recognized across the Training and Document Command (TRADOC) as an expert in leader development, selected to serve as the Maneuver Center of Excellence (MCOE) G3, the most challenging COL’s position in TRADOC * 20090511-20100510 (served as the MCoE G3/5/7), annual, 12 months rated period, ACOM with his senior rater, a MG, stating the applicant is the best of the 26 COLs he rated in the MCoE and one of the best he’s seen during his 33 years of active duty service, he led their multifaceted organizations to unparalleled success, an excellent role model with impeccable leadership skills; great instincts; physically tough; coach and mentor; and an officer of character; multi-star general officer potential * 20100511-20101103 (Chief of Staff, MCoE), change of rater, 5 months rated period, ACOM with his senior rater, an MG, repeatedly stating the applicant’s performance was phenomenal and still ranked in the top 1 of the 26 COLs in the command who must be promoted to BG; he is a gifted leader with keen instincts and phenomenal staff skills * 20101104-20110630 (Chief of Staff, MCoE), permanent change of station (PCS) report, 8 months rated period, ACOM with his senior rater, an MG, repeatedly stating the applicant’s performance was phenomenal, he still ranked the number 1 of the 23 COL in the command, a proven role model with impeccable leadership skills with multi-star general officer potential 3. On 19 January 2012, the applicant received a “relief for cause” below center of mass (BCOM) report which evaluated him as the Director of Operations, CJ-3, for North Atlantic Treaty Organization (NATO) Training Mission – Afghanistan/Combined Security Transition Command – Afghanistan (NTM-A/CSTC-A CJ-3), from 1 July 2011 to 18 December 2011, a 6 month period. It shows among the many favorable comments provided by his rater, a BG, and senior rater, a lieutenant general (LTG), these officials also stated: a. Rater – * The applicant made several unfortunate decisions that required the rater to relieve him from duty * It was determined he engaged in inappropriate conduct with a married civilian contractor who was not his wife * He attempted to persuade a junior officer within his directorate who observed his conduct not to report it and was also found to be untruthful about his actions * He remains extremely capable and that given the opportunity to continue to serve, the applicant’s performance would continue to excel, driven by remorse over this incident b. Senior Rater – * Due to more than one incidence of inappropriate behavior compounded by untrustworthy statements, I lost confidence in this COL’s character and judgement * I relieved him from his duties * He has very limited potential for promotion or assignment to demanding senior positions of trust 4. On 19 January 2012, the applicant prepared a memorandum acknowledging receipt of the relief for cause report. He indicated the following: a. I accept full responsibility for my personal and professional conduct failures while assigned as the NTM-A/CSTC-A CJ-3, that resulted in the rater’s and senior rater’s assessment comments in the referred OER. b. I acknowledge my actions were inconsistent with Army Values and the accepted norms for Officers in the Profession of Arms; especially a COL/O-6 with 5-years’ time in grade. c. I deeply regret my actions and the subsequent cascading effects on the CSTC-A/NTM-A, the CJ-3 Directorate and the Soldiers, Sailors, Airman, Marines, and NATO Partners that I failed to effectively lead and provide an appropriate example. d. I respectfully submit that this incident is not the officer that I have been over the past 26 years and is not the officer I will be for what remains of my career. e. Effective 12 January 2012, I submitted a request for retirement with a tentative retirement date of 1 June 2012. 5. On 1 February 2012, the Chief, Colonels Management, Senior Leader Development, initiated a request to obtain a grade determination for voluntary retirement regarding the applicant. On 12 April 2012, subsequent to the AGDRB’s review of the applicant’s voluntary retirement, the DASA-RB directed that if the applicant received an approved retirement, he would be placed on the retired list in the grade of O-5 (LTC). 6. On 31 May 2012, the applicant retired from active duty by reason of sufficient service for retirement in the rank of COL. The DD Form 214 issued him at that time shows he completed 27 years and 9 days of creditable active duty service. Item 18 of this separation document includes the statement “Retired List Grade LTC.” 7. The applicant provides several OERs, award certificates, and letters of commendation depicting his superb skills, professionalism, keen abilities, and stellar performance of duty in various positions held throughout his military service, primarily in the rank of COL/O-6. He provided congratulatory letters recognizing his selection as a principal for the Senior Service College and his promotion to COL. 8. He also provides several letters from general officers, senior level civilian service personnel, and his spouse who supported his placement on the Retired List as a COL during the consideration by the AGDRB. REFERENCES: 1. Title 10. U.S. Code, section 1370 (Commissioned officer, general rule; exceptions). a. Rule for Retirement in Highest Grade Held Satisfactorily. 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, except as provided in paragraph (2), 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. b. Retirement in Next Lower Grade. An officer whose length of service in the highest grade he held while on active duty does not meet the service in grade requirements specified in subsection (a) shall be retired in the next lower 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. Army Regulation 15-80 (AGDRB and Grade Determinations) 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 (SA). a. The AGDRB considers individual cases that are referred to it in accordance with this regulation. It directs or recommends the final grade determination that affects an individual’s separation or retired pay. The AGDRB decides cases on the evidence of record. It is not an investigative body. AGDRB discussions and individual votes of members are privileged and confidential and will be disclosed only to those individuals in the decision-making process with a need to know. b. Under Title 10, U.S. Code, section 1370, an officer will normally retire at the highest grade served, unless service at that grade is deemed unsatisfactory, or the officer failed to meet statutory time in grade requirements. c. 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 nonjudicial punishment pursuant to UCMJ, or the result of a sentence of a court-martial; or when there is sufficient unfavorable information to establish that the Soldier’s service in the grade in question was unsatisfactory. d. The DASA (RB) will make discretionary grade determinations for the SA for officers below the grade of brigadier general involving service retirement, physical disability retirement, computation of retired pay, or separation for physical disability. The DASA (RB) retains the authority to take final action in any case in which a subordinate authority, including the AGDRB, would otherwise be authorized to take final action. 3. DOD Financial Management Regulation, volume 7B (Military Pay Policy and Procedures-Retired Pay), chapter 1 (Initial Entitlements-Retirements), section 0105 (Rank and Pay Grade), paragraph 010501A (General Determinations) states that unless entitled to a higher grade under some other provision of law, those regular and Reserve members who retire other than for disability will retire in the regular or Reserve grade they hold on the date of retirement. Paragraph 10503 (Satisfactory Service) provides that the determination as to what constitutes satisfactory service for the purpose of retirement in the highest grade is within the discretionary power of the Secretary of the Military Department concerned. 4. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By law, a person granted retired pay will receive such pay in the highest grade satisfactorily held by him or her during his or her entire period of service. Service in the highest grade will not be deemed satisfactory if there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily. 2. In the applicant's case, he admits that while serving as the Director, CJ-3, NTM-A/CSTC-A, a subordinate officer of whom he was the senior rater, found him embracing and kissing a Ms. A______ in the workplace (CJ3 Conference Room). The evidence of record shows the applicant – * accepted full responsibility for the failures in his personal and professional conduct * acknowledged his actions were inconsistent with Army Values and the accepted norms for Officers in the Profession of Arms, especially a COL/O-6 with 5-years’ time in grade * acknowledged he failed to effectively lead and provide an appropriate example to members of the U. S Armed Forces and NATO partners * deeply regretted his actions 3. The applicant’s outstanding performance while serving in the rank of COL/O-6 is noted. However, his inappropriate actions with a female worker, not his wife, contributed to the loss of trust and confidence in him and resulted in his suspension from his duties, receipt of a relief for cause OER with a BCOM rating and his ultimate request for voluntary retirement based on completion of over 26 years of active service. 4. In addition, because there was derogatory information in the applicant’s file, a grade determination was required. Accordingly, the Chief, Colonels Management, Senior Leader Development, forwarded his packet to the AGDRB. The AGDRB determined his service in the grade of COL was not satisfactory. The DASA (RB) determined for the purpose of calculation of his retired pay under the law his service as a COL was not satisfactory and directed his placement on the Retired List in the grade of LTC. 5. There is no evidence of error or an injustice in the AGDRB’s process of determining the highest grade he satisfactorily held. His dissatisfaction with the outcome of the AGDRB does not invalidate it and is not a reason to set aside the DASA-RB’s findings to place him on the Retired List in the rank of LTC. Further, there is no basis to correct item 18 of his DD Form 214 as he claims. 6. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009801 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009801 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS (ABCMR) RECORD OF PROCEEDINGS Enclosure 2