IN THE CASE OF: BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150012045 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: 1 September 2016 DOCKET NUMBER: AR20150012045 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: 1 September 2016 DOCKET NUMBER: AR20150012045 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 defers to counsel for submission of his request, statement, and evidence. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect: * reversal of the Army Grade Determination Review Board (AGDRB) decision to place the applicant on the Retired List in the rank/grade of major (MAJ)/O-4 * correction of the applicant's records to show he was placed on the Retired List in the rank/grade of lieutenant colonel (LTC)/ O-5 2. Counsel states: a. The Applicant had a highly successful military career and superbly served the Army as an LTC, an upgrade to the rank of LTC would remove an injustice, as his current retirement rank fails to consider his tremendous achievements and service, including and most notably, those as an LTC. He was commissioned as a second lieutenant on 21 December 1990, in the Infantry branch. While serving in the Infantry, he served as Platoon Leader, Company Executive Officer and Battalion Operations Officer. His officer evaluation reports (OERs) during this time, from 1990 to 1996, were all either center of mass or above center of mass ratings. His OERs included such comments as: * demonstrated determination coupled with an intense desire to excel * continues to perform in a superb manner * continued solid performance by an excellent officer * superb job as the Executive Officer of his Anti-Tank Company... promote immediately, and continue his advancement * outstanding performance from an outstanding officer - he will be a great company commander * excellent performance by a first rate officer b. From July 1996 until September 1998, the applicant commanded Echo Company, 2nd Battalion, 58th Infantry Regiment at Ft. Benning, GA. In his first year of company command, he was rated by his senior rater as "one of the best company commanders assigned to the Brigade; clearly in the top third of his peers." From October 1998 through May 1999, he served as an infantry detachment commander at Fort Sherman, Panama. In this capacity, his senior rater rated him as "exceptionally bright, tactically savvy and mentally and physically tough. He effectively blended these skills to the great advantage of the soldiers he trained, establishing an unprecedented record of safe, challenging, and realistic squad and platoon live fire maneuver exercises." c. The applicant was accepted into the Army's Acquisition Corps. His next assignment was to Fort. Stewart, GA where he served as the contingency contracting officer for the 3rd Infantry Division from May 1999 to March 2001. His senior rater in May 2000 rated him as an "excellent officer who has performed extremely well as a contingency contracting officer. Bright and aggressive, he performed his duties professionally and with thorough expertise." Continuing this level of review, his senior rater in March 2001 described him as "Bright, articulate and aggressive, he is a technical expert whose real contracting experience makes him an invaluable asset." d. In March 2001, the applicant deployed to Bosnia to serve as the chief of a forward deployed contracting office in Sarajevo. His senior rater wrote that he had done "an outstanding job while serving in a field grade position of Office Chief, Joint Contracting Center - Sarajevo. With his contracting expertise he was able to save the Army over $200,000." After his deployment to Bosnia, he was assigned to Redstone Arsenal, AL, where he served from October 2001 until October 2003 as the Assistant Project Manager for PATRIOT Logistics, responsible for the development and fielding of the automated maintenance and logistics computer tools for the PATRIOT weapon system. During this time, he was highly rated by his senior raters as: * aggressive, intelligent, and motivated, ranks as the top captain of the eight * one of the top 3 of 8 captains (CPT) in command * ranks first among 4 CPTs, absolutely superb performance * personally selected to deploy to Operation Enduring Freedom in Afghanistan in support of critical wartime support effort; performed flawlessly e. The applicant was promoted to MAJ on 1 October 2003. He was then assigned as the Assistant Project Manager for Special Programs for the Lower Tier Air Missile Defense Project Office, where he also served with distinction. His senior rater rated him as an "absolute quality performer who ranks in the top 15 percent of the MAJs," actually rating him 1 of 197. He later served as the Assistant Project Manager for the Medium Extended Air Defense Systems (MEADS), where, again, he was highly rated as: * unmatched programmatic and contracting abilities resulted in the successful execution of over $1QOM in time-critical, technically complex contract requirements during this rating period * his contracting experience and strong leadership skills led to being hand-picked to deploy to Iraq to oversee the Iraqi reconstruction operation f. The applicant deployed to Iraq from January 2005 until May 2005, where he served as the Special Projects Officer for the Joint Contracting Command - Iraq. He was wounded in action on 29 January 2005 and received the Purple Heart for his wounds received as a result of hostile actions. He also received the Joint Service Commendation Medal for his performance during this deployment. His superb performance compelled the Army to select him to serve as a professor at the Defense Acquisition University (DAU) in Huntsville, AL. At the DAU, he was clearly and often recognized for his superior service. His senior raters said: * his vast contingency contracting experience has made him a valued asset for DAU's critical contingency contracting mission * definitely one of the Army's future acquisition leaders * among the highest of all military and civilian professors at DAU * one of the Army's brightest future leaders g. On 1 October 2008, after having served as a MAJ for only six years, the applicant was promoted to LTC and assigned as a Program Integration Officer at the Defense Contract Management Agency (DCMA) at Redstone Arsenal, AL. He was in charge of a $4.6 billion dollar project. He continued to serve with distinction at the DCMA in this assignment and later in other assignments as a LTC. Notably, in May 2009 his first OER as a LTC, his rater stated: * outstanding performance, an excellent officer and ranks as one of the best LTCs in command * hand-picked to develop a standardized training program to help all DCMA employees receive the proper certification * his potential is unlimited h. The applicant's intermediate rater stated that he "quickly stepped in and with his knowledge of the Defense Industrial base solved a contractor's substandard performance to the Missile Defense Agencies standards." His senior rater stated, "He is an outstanding officer and directly impacts our mission. His leadership, dedication, and mission-focus truly define this exceptional officer." He was then rated 1st of 25 officers. In May 2010, in his second OER as a LTC as the Program Integration Officer (also from DCMA), his rater described his performance and potential as follows: * absolutely outstanding performance" * made critical contributions to the organization by establishing the agency's first continuity book that outlines critical daily activities to support the program surveillance strategy * received a by name commendation from the DCMA Resource Review Inspection team for the continuity book initiative and they coined it as a DCMA Best Practice i. The applicant's intermediate rater's comments mirrored those of the rater, denoting him as "an outstanding leader and acquisition officer." His senior rater then stated that "he ranks among the best of all officers in this command" and ranked him No. 2 of 70. Also, during this rating period, he received two notes recognizing his superior performance and congratulating him on his assignment. In January 2011, on his third OER as a LTC (still serving at DCMA), his rater recognized that he had continued to do an "outstanding job" and further noted that he was selected for Battalion level command as the next Project Manager, Terminal High Altitude Area Defense. His senior rater ranked him as number 3 of 111 rated officers. j. The applicant received his fourth and final OER as a LTC in April 2012, while serving as a Special Project Officer at the Redstone Garrison Headquarters. In it, his rater described his performance and potential as: * research resulted in a letter of technical direction on the wastewater treatment service contract * his technical expertise helped give direction to the contracting officer on changes required to bring the contract up to date with current procedures * paramount in establishing ownership and accountability of the new sewage piping and other issues related to the large growth of Redstone Arsenal * senior rater ranked him number 1 of 2 and stated that his performance as a Special Project Officer made valuable contributions to the mission k. It was in this context of exceptional service and extraordinary contributions as a LTC that the applicant's career was halted; it is important to note that his issues related to actions and conduct outside his primary duties did not negatively impact his exceptional performance. On 5 March 2013, he received a General Officer Memorandum of Reprimand (GOMOR); he disputed the findings in the GOMOR. On 1 November 2012, the applicant was indicted by a Grand Jury in the Northern District of Alabama for several counts of fraud and false statements. He was convicted by a jury on 17 January 2013, on eight of the ten counts. l. As of 23 April 2015, he was released from all supervision and supervision requirements by the Probation Office of the U.S. District Court. Additionally, in a very proactive approach to demonstrated rehabilitation, he has obtained an Associate Degree in Culinary Arts and Hospitality Service, and in that pursuit, he was consistently on the Dean's List or the President's List. On 1 August 2013, he retired from the Army, receiving an honorable discharge. The AGDRB determined that he would be retired at the rank of MAJ. m. The applicant superbly served the U.S. Army at the rank of LTC, and retirement at the rank of major (MAJ) is an injustice to his overall service achievement at rank. The AGDRB erroneously found that he had only satisfactorily served at the highest rank of MAJ. However, in its determination, it provided no findings or analysis regarding its determination. It is clear from the applicant's Officer Evaluation Reports (OERs) that he served masterfully as a LTC. In the time that the applicant served as a LTC he was a valuable asset and made significant contributions to the Army. It is for this reason that it should be found that he served satisfactorily in the rank of LTC, contrary to the AGDRB's rubber-stamped findings. n. The applicant regrets the mistakes he made and should be given the opportunity to recover from those mistakes because of his overall exemplary career. Additionally, and very importantly he has been punished extensively for those mistakes. However, he recognizes that he is not perfect, as no human being or leader is, and he owns those mistakes. He has acknowledged his mistakes and expressed his remorse to the Army on at least two occasions. For the reasons set forth herein above, his records should be amended to retire him at the rank of LTC. The overall character of his service both at the rank of LTC and before reflect that it would be a manifest injustice, in accordance with Title 10, U.S. Code, Section 1552(a), for him to remain a MAJ in retirement. 3. Counsel provides a legal brief, dated 9 July 2015, and over 100 pages of documents, labeled and organized as follows: * Exhibit A – 27 OERs covering the years 1992 through 2012 * Exhibit B – 16 awards, decorations, and citations * Exhibit C – the applicant's GOMOR, dated 5 March 2013, and his response * Exhibit D – a letter from U.S. District Court, Probation Office, dated 23 April 2015, and investigation documents * Exhibit E - a newspaper article, letters of recognition, and certificate of retirement * Exhibit F – a letter from applicant for AGDRB and board finding CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army on 21 December 1990, in the rank of second lieutenant. He entered active duty service on 31 March 1991. 2. He served in the following locations, during the periods: * Bosnia - 15 April 2001 to 4 October 2001 * Afghanistan - 5 May 2003 through 3 July 2003 * Iraq - 8 January 2005 through 16 May 2005 3. On 1 October 2008, he was promoted to the rank/grade of LTC/O-5. 4. On 17 January 2013, the U.S. District Court for the Northern District of Alabama found the applicant guilty of eight felony counts in violation of Title 18, U.S. Code, Section 1001(a)(2) and Section 641. 5. On 19 February 2013, the applicant was notified that he was being considered for elimination from the U.S. Army. He was informed that he could submit his resignation in lieu of elimination or request a discharge in lieu of elimination. He requested retirement in lieu of elimination. 6. On 21 February 2013, he submitted a request to the AGDRB for approval to retire in the rank of LTC. 7. On 5 March 2013, the applicant received a GOMOR. The GOMOR stated in pertinent part: a. In October 2008, shortly after the applicant was promoted to the rank of LTC, he deliberately disregarded a direct order from his first line supervisor, to refrain from participating in a for-profit business. In addition to disobeying his supervisor, he violated Department of Defense (DOD) 5500.7-R (Joint Ethics Regulation) by intentionally ignoring legal advice directing him to obtain approval before engaging in any outside employment or business activities. Further, he violated DOD 5500.7 by using government resources and equipment, while on duty, to complete matters pertaining to his personal business. Also, he willfully provided false statements on multiple Office of Government Ethics (OGE) Forms 750 as well as Standard Forms (SF) 86. b. His behavior over the last four years is inexcusable. His reckless and avaricious behavior caused unneeded interruptions to the mission when he employed government resources to conduct personal business in furtherance of his for-profit business. He made several false statements on OGE forms relating to his involvement in this for-profit business and the income he derived from this undisclosed business. He also made false official statements on his SF 86, dated 4 June 2010, when he did not disclose his involvement in these business ventures, his marriage to Ms. Su___ Mc______, or his arrest on 18 November 2009 for domestic assault in the third degree. Further, his careless actions in assisting his former wife, Ms. Sh______ Mc______, in defrauding the government of military services by allowing her to retain her military dependent identification card at the termination of his two year marriage exposed not only himself, but possibly, his former wife to possible adverse action. These actions coupled with his haughty attitude in refusing to obey his supervisor's order and heed the legal advice given by an ethics counselor directly contravenes the Army values. 8. On 6 March 2013, the applicant acknowledged receipt of the GOMOR and on 13 March 2013, he submitted a rebuttal wherein he stated, in part: * he did not disregard a direct order to refrain from participating in a for-profit business; the request was denied as it related to the boot camp not for any administrative ownership duties within his company * he provided an ethical evaluation to his command when he was reassigned to ensure they had knowledge of his ownership status; legal counsel had no objections at that time * any omissions on his OGE 450 were inadvertent mistakes * he did not make a false statement on his SF 86 when he did not disclose his business ventures * he was married to Su___ and included his marriage to her on his initial SF 86 and his initial top secret clearance, they were mistakenly omitted from the SF 86 questionnaire * the arrest for domestic assault in the third degree was a false allegation * he did not assist his ex-wife Sh____ in defrauding the government , he provided a copy of the divorce decree to the identification card section and her benefits were terminated 9. On 18 March 2013, after reviewing the evidence concerning the applicant’s rebuttal and supporting documents, the imposing official directed placement of the GOMOR in the applicant's Official Military Personnel Folder (OMPF). 10. On 24 May 2013, by memorandum the applicant was notified that the Deputy Assistant Secretary Army (DASA) (Review Boards) had approved his request for retirement in lieu of elimination. The DASA directed that be placed on the Retired List in the rank of MAJ with an honorable characterization of service. 11. The applicant was retired on 31 July 2013, under the authority of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 6-17d and 4-2b, by reason of unacceptable conduct. His service was characterized as honorable. 12. In connection with the processing of this case, an advisory opinion was obtained on 22 March 2016, from the Chief, Officer Retention and Transitions, U.S. Army Human Resources Command. The advisory official opined that the AGDRB correctly considered the evidence in the applicant's case and came to the proper findings with respect to his retired grade. The advisory official stated: a. The applicant was promoted to LTC on 1 October 2008. He subsequently received a GOMOR on 3 March 2013 for actions that occurred, "In October 2008, shortly after he was promoted to the rank of LTC". Specifically, he was reprimanded for violating the following: (1) Article 92 of the Uniform Code of Military Justice (UCMJ) - Failure to Obey order or Regulation; (2) Article 133 of the UCMJ - Conduct Unbecoming an Officer; (3) Joint Ethics Regulation 5500.7-R, sections 2-206 and 2- 301; and (4) 18 U.S.C. 1001 - Providing False Official Statements. That GOMOR was subsequently filed in his OMPF. b. On 1 February 2013, the Commander, United States Army Aviation and Missile Command, initiated elimination for the applicant under Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 4-2b and 4-2c for the following misconduct, moral and professional dereliction reasons: (1) He disregarded the direct order of COL G_____ to refrain from participating in a for-profit business. (2) He made multiple false official statements on OGE 450 forms relating to his involvement in this for-profit business and his income drawn from this business. (3) He made false official statements on his SF 86 dated 4 June 2010 when he did not disclose his involvement in these business ventures, his marriage to Ms. Su__ M______, or his arrest on 18 November 2009 for domestic assault in the third degree. (4) He assisted Ms. Sh____ M______ in defrauding the federal government of military services by allowing her to retain her military dependent identification card at the termination of his two-year marriage. (5) He embezzled, stole, purloined, and knowingly converted United States Government property with a combined value exceeding $1,000.00 in violation of Title 18, U.S. Code, section 641; specifically, he took without authorization a conference table and requested the Garrison Print Shop to produce signs for his personal business under the guise of official business needs. (6) He was convicted of eight felonies in the U.S. District Court Northern District of Alabama for violating Title18, U.S. Code, section 1001(a)(2) and Title 18, U.S. Code, section 641. c. On 19 February 2013, the applicant elected to request retirement in lieu of elimination. Due to this derogatory information in his file, he was the subject of an AGDRB, which determined that the last honorably held rank the applicant held was that of MAJ. Subsequently, the DASA (Review Boards) reviewed the AGDRB's recommendation and approved the applicant's retirement request on 15 May 2013, to be honorably retired as a MAJ, effective 1 August 2013. 13. The advisory opinion was forwarded to the applicant on 13 April 2016, for comment and/or rebuttal. He replied and stated: a. It is his opinion that a huge injustice has been done by the AGDRB determining to retire him as a MAJ instead of the rank that he held for 5 years honorably as LTC. He was promoted to the rank of LTC on 01 October 2008. He was also selected for Product Manager, a Battalion Commander equivalent position, on 13 April 2010. The prestigious Army Acquisition Corps Centralized Selection Board selected him to fill one of the Army's premier acquisition key billets base on his outstanding job performance. b. He would like to provide background information to help clarify the facts. An anonymous letter was sent to the Defense Criminal Investigative Service (CID) alleging that a "Conflict of interest" violation was occurring with LTC [Applicant]. CID began conducting an investigation about the alleged allegations. The investigation was conducted without his knowledge from 2010 until 2013. Before he was scheduled to attend his change of command ceremony, the investigation was released to the public. The change of command was put on hold while the investigation was being completed. During the time of the investigation, he was attending a mandatory course and certification for the command position. Shortly after being selected as a Product Manager, he attended several mandatory courses that are required for all Product Managers and Battalion Commanders. He honorably served and completed all of those mandatory courses." One key course was the Program Managers Course from January 2011 thru April 2011. A daily attendance was required in the course from 7:00 am until 5:00 pm. He completed the course with an excellent performance evaluation. He received above average performance evaluations in all of his assigned positions as LTC, as evidenced by his OERs. He never received any derogatory counseling as a LTC and there is no evidence supporting the allegation that the omissions were intentional. c. As a result of information provided to the command by CID, he received a reprimand on 3 March 2013. This reprimand was based on allegations supposedly found during the investigation and given to the command after a two year investigation on a conflict of interest allegation violation. It appears the CID agent did not find evidence or information to support the numerous alleged allegations levied against him. Therefore, they settled on a far lesser charge to substantiate a more than two year investigation. He provided a rebuttal and evidence to explain his position on the alleged allegations which contained no supporting documentation, only someone's personal opinion. If they were going to ruin a person's career they should have some factual information to support the facts. Please consider the following response to the points addressed in the Advisory Opinion: (1) Failure to obey orders or Regulation: He didn't disobey a direct order or regulation. He was an investing partner in a business that was started in 2007. He became a part of this business because of a hip replacement surgery from the combat zone and planned to retire. He submitted a request for permission to the Legal office to participate in this business. A legal analysis was conducted and the office granted permission and outlined things that could and couldn't be done with the business. He conducted business on his own time, and never used his government position to misrepresent the government or his company. He never had direct business dealings with the government. (2) Conduct unbecoming: The majority of the infractions were administrative in nature and omissions that were unknown by him at the time. The omissions were discovered by the CID agent and he never was given an opportunity to correct the errors that he wasn't aware of when he completed the form. (3) Providing false official statement: The false official statement were omissions from his OGE 450 that would have included his outside income that was mistakenly omitted from the form. He didn't realize that the income wasn't on the form used until the CID agent pointed this infraction out to him and his attorney. There was no benefit gained by not adding that information to the form. Most military people that don't have any potential conflicts just sign, date and submit the information that is current on the form from the previous year. He clearly accepts responsibility for the omission but stands firm that it was unintentional. d. On 1 February 2013, the command initiated elimination: he chose the option of retirement in lieu of elimination because his case had been investigated for two plus years and nothing but administrative omissions were found. However his career would never be the same even if he fought the initiated elimination. He had 22 years of honorable service and could not believe that he wasn't able to provide evidence to prove his innocence. He provided a response with evidence to support his response to the allegations. His side of the story was never heard and the overview by the CID agency carried more weight. He would like to address the allegation stated in the advisory opinion: (1) He disregarded the direct order of COL G_____ to refrain from participating in a for-profit business. An email was sent to COL G______ requesting to do some additional things within the company on his off time. COL G______ sent the request to his legal advisor and decided to decline his request allowing him to do additional work in the company. He didn't do any additional work within the company based on this response. He continued to do the things that the initial memorandum from legal outlined that he could do and nothing more. He never tried to hide the fact that he was a business partner in a business and had discussions with him about his future plans after retirement during his initial counseling session. He had not been a part of the Defense Contract Management Agency before he came out on the list for promotion to LTC. If he had disobeyed a direct order, it would have shown up on his performance evaluation from him as his rater. COL G______ stated in his performance evaluation the following: "Outstanding Performance! LTC [Applicant] is an excellent officer and ranks as one of the best LTCs in my Command.'' He has never disobeyed any direct order given by a superior officer. (2) He made multiple false official statements relating to his involvement in this for-profit business and his income drawn from this business. As explained earlier in this letter, there were omissions of his outside income. These infractions were pointed out by the CID agent as part of an investigation of a conflict of interest. The information on the OGE 450 is designed to eliminate those in positions that may give an advantage to companies that they have some relationship with. He was not in any position to manage any contracts or to persuade anyone to gain an advantage. The omissions were an honest mistake and he didn't receive any personal benefit from omitting information related to his income that he was known to be involved in. He updated and signed the OGE 450 because he didn't think any significant changes had occurred. It is very rare that an employee/military person will create a new OGE 450 every year. He accepts responsibility for the mistake but it was not intentional and there is no evidence to prove otherwise. Making a mistake clearly doesn't demonstrate a lack of honorable service. (3) He made false official statements on his SF 86 Questionnaire when he did not disclose his involvement in these business venture, his marriage to Ms. Su__ M______, or his arrest on 18 November 2009 for domestic assault in the third degree. The false statements were simple omissions found during a two year investigation by the CID agency. The marriage wasn't intentionally left off as well as a few of his family members that were never mentioned because it didn't support the theory of deception on his part. He accepts that there were omissions made but ordinarily the agency allows you to make changes to anything that looks suspicious. He didn't receive any benefit from leaving his ex-wife off the form nor did he benefit from not including his involvement in the business. The domestic violence arrest was a part of an allegation that was found to be untrue and thrown out of court and dismissed. He didn't think it needed to be reported because the allegations were dismissed. This happened before he arrived to Huntsville, Alabama, in 2002. The public record supported the fact that the charge was dismissed because of false statements. His SF 86 has been updated and is awaiting approval for a secuity clearance. (4) He assisted Ms. Sh____ M______ in defrauding the federal government of military service by allowing her to retain her military identification card at the termination of his two year marriage. This marriage ended abruptly and the divorce was very nasty and ended on non-speaking terms. His attorney worked closely with hers to table her request in order to get the divorce done quickly and to satisfy all parties involved. His attorney felt it would not be in his best interest to get the card back before the divorce decree was submitted and the benefit was legally stopped. Once he received the official divorce decree, he took it to the Personnel Office so that they could make the appropriate changes to his record. His grandmother was also his dependent so he never changed it to get benefit for being married. Once the decree was filed, her benefits stopped and no benefit was gained by her. He contacted Tri-Care and they confirmed that no benefits had been used by her during the divorce proceedings. There was no record of fraud and he never spoke to her because of their contentious divorce. He never assisted her in doing anything to defraud the government. (5) He embezzled, stole, purloined, and knowingly converted United States Government property with a combined value exceeding $1000.00, specifically, he took without authorization a conference table and requested the garrison print shop to produce signs under the guise of official business. He did not take the conference table without authorization. He had spoken to Mr. E____ about needing a conference table for his office. Mr. E_____'s job was disposing old office furniture and he stated that he would keep an eye out for any that came up for disposal. Mr. E_____ contacted him by email and told him that he had an old conference table that was to be disposed of and if he could use it then he could have it. Mr. E_____ arranged for the table to be delivered to his office. He received the specifications of the table and it was too big to fit in his office space. He had purchase furniture from a local outlet furniture store and asked if they could swap this table for one that would fit his needs. The store manager agreed and took the table and he received another that would fit his needs. He had no clue where this property was stored nor did he have authority to get anyone to move the table. He thought this was an old piece of furniture that he could use until he could get something better. He accepts responsibility for getting signs made from the garrison print shop. He had pictures of weapon systems and Soldiers in action printed for his office at work and decided to make some to put in his personal office. He takes full responsibility for this mistake as it should have been paid with his personal funds. (6) He was convicted of eight felonies in the U.S District Court Northern District of Alabama. At the conclusion of the investigation by CID, a meeting was held to discuss infractions that had been found. The District Attorney wanted a plea for one count of any infraction that had been discovered. The District Attorney stated because so much time and money been spent on this case he had to get a conviction even though there was no "conflict of Interest" or violation discovered. After many hours of negotiations, no resolution could be reach because he felt the infraction that was found on the OGE 450 and SF 86 didn't warrant a federal conviction. These were administrative errors that happen every day and he was unaware of the infractions until it was pointed out to him by the CID agent. The 8 counts that he received were as follows: * Count 1 = False Statement (OGE 450, 2009) Omission * Count 2 = False Statement (OGE 450, 2010) Omission * Count 3 = False Statement (OGE 450, 2011) Omission * Count 4 = False Statement (SF 86) Omission * Count 6 = False Statement (Unauthorized Print Request) * Count 7 = False Statement (Unauthorized Print Request) * Count 9 = False Statement (Theft of Government Property) Table e. These administrative infractions could have been handled inside the Army but there was a push to bring public embarrassment to him and to destroy him and his career. The infractions that were found could be considered minor but were embellished to score a victory in federal court. He has been punished in a court of law and received fines and probation for his convictions. He has successfully paid his fines and completed probation. He has received punishment from the Army with a letter of reprimand filed in his OMPF. He believes taking his rank would be excessive because his records show that he was an outstanding officer for 22 years and served honorably. His a proud combat Veteran that has put his life on the line numerous times, and wears the Purple Heart as proof. He has proven that he served honorably through his performance evaluation and hopes a few minor infractions won't define his successful career. He retired honorably in 2013 and his performance evaluations demonstrate that he served honorably at the rank of LTC for five years. His patriotism is evident. REFERENCES: 1. Army Regulation 15-80 (Army Grade Determination Review Board 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. a. Paragraph 2-2 states the AGDRB considers individual cases that are referred to it in accordance with this regulation. The 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. Paragraph 2-5c states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory. One specific act of misconduct may or may not form the basis for the determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade. b. Paragraph 4-1 states an officer is not automatically entitled to retire in the highest grade served on active duty. Instead, an officer is retired in the highest grade served on active duty satisfactorily, as determined by the Secretary of the Army or the Secretary's designee. For officers below the grade of brigadier general, the AGDRB will recommend to the DASA (Review Boards) for final determination the highest grade in which an officer has served satisfactorily for purposes of service/physical disability retirement. The AGDRB recommendation is purely advisory, and the Secretary of the Army or the Secretary of the Army's designee is not bound by that recommendation. c. Paragraph 4-1d states all retirements, except for disability separations, involving officers who, since their last promotion, have been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry (except minor traffic infractions) will be forwarded to Assistant Secretary of the Army (ASA) Mobilization and Reserve Affairs (M&RA) for a grade determination, provided such information is reflected, or should be reflected by regulation, in the officer's OMPF. Examples of such findings or conclusions include a memorandum of reprimand. Even if the information described is not required to be filed in the officer's OMPF, the separation authority may forward any retirement that contains information deemed substantiated, adverse, and material to a determination of retired grade. 2. Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more. Paragraph 4-2b provides for elimination due to misconduct, moral or professional dereliction, or in the interests of national security. Paragraph 6-17d of this regulation applies when a voluntary request for retirement is submitted in lieu of elimination for misconduct. DISCUSSION: 1. Through counsel, the applicant requests reversal of the decision by the AGDRB to place him on the Retired List in the rank of MAJ. Counsel contends the applicant served honorably throughout his career, and certainly in the rank/grade of LTC/O-5, as evidenced by his OERs, decorations, and military service. Counsel further contends, the determination of the AGDRB provided no findings or analysis of the applicant's case. 2. The evidence of record shows the applicant was convicted by a civil trial of eight felonies. He subsequently received a GOMOR for those actions, to include, falsifying official forms and statements, disregarding a direct order, and defrauding the government. The GOMOR was filed in his OMPF and he voluntarily elected to retire in lieu of elimination. 3. According to the applicable regulation, all retirements, except for disability separations, involving officers who, since their last promotion, have been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry (except minor traffic infractions) will be forwarded for a grade determination, provided such information is reflected, or should be reflected by regulation, in the officer's OMPF. 4. The AGDRB determined the highest grade the applicant served in satisfactorily, for the purpose of computing his retirement pay, was the rank/grade of MAJ/O-4. The DASA (Review Boards) reviewed the AGDRB's recommendation and approved the determination of the board. In accordance with applicable regulation, the AGDRB discussions and individual votes are privileged and confidential and will be disclosed only to those individuals in the decision-making process with a need to know. 5. The regulation also states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory. One specific act of misconduct may or may not form the basis for the determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade. Accordingly, the applicant's service as a LTC was determined to have been unsatisfactory. 6. In view of the above, there is no evidence of error or injustice in the actions of the AGDRB or any compelling evidence which warrants the relief requested. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012045 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012045 16 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2