IN THE CASE OF: LAWRENCE, TIMOTHY R. BOARD DATE: 15 September 2016 DOCKET NUMBER: AR20150012727 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: LAWRENCE, TIMOTHY R. BOARD DATE: 15 September 2016 DOCKET NUMBER: AR20150012727 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: BOARD DATE: 15 September 2016 DOCKET NUMBER: AR20150012727 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, in effect: * reversal of the Army Grade Determination Review Board (AGDRB) decision to place him on the Retired List in the rank/grade of major (MAJ)/O-4 * correction of his records to show he was placed on the Retired List in the rank/grade of lieutenant colonel (LTC)/O-5 * a personal appearance before the Board 2. The applicant states there were numerous irregularities in the process that led to this decision as well as the inclusion of information that was presented to the board. His service as an LTC met the criteria for honorable service. He has new and sufficient evidence to support his claim. He strongly requests to appear in person because of the context and circumstances related to his retirement decision. 3. The applicant provides a self-authored statement, dated 20 July 2015, and over 100 pages of documents labeled and organized as follows: * Enclosure A & B – letters of support * Enclosure C – a letter from his Member of Congress and his letter to the Member * Enclosure D – a Memorandum for Record (MFR) and several memoranda addressing his referred Officer Evaluation Report (OER), with copies of the referred OER and several other OERs * Enclosure E – Department of the Army Suitability Evaluation Board (DASEB) Docket Number AR20110023255, dated 19 January 2012, and his request to the DASEB appealing the General Officer Memorandum of Reprimand (GOMOR) he received on 9 June 2011 * Enclosure F – a request to the Army Review Boards Agency (ARBA) for transfer of his GOMOR to the restricted folder in his official military personnel file (OMPF), considered under DASEB Docket Number AR20120013654, dated 23 August 2012 * Enclosure G – numerous appeals to U.S. Army Human Resources Command (HRC) for the correction of his OER * Enclosure H – a memorandum from HRC, dated 14 November 2012, subject: Evaluation Report Appeal (20100402 – 20110201), with Officer Special Review Board (OSRB) Docket Number AR20120012830, dated 23 August 2012 * Enclosure I – a response from the Office of the Inspector General (IG), HRC, regarding his request for assistance vis-à-vis his OER and GOMOR * Enclosure J – emails requesting command intervention * Enclosure K – emails to Trial Defense Services and a memorandum he addressed to his Member of Congress * Enclosure 1 – a memorandum to the Army Grade Determination Review Board, dated 13 March 2012, and the Deputy Assistant Secretary of the Army (Review Boards) (DASA-RB) decision memorandum, dated 10 May 2012 * Enclosure 2 – DA Form 4037 (Officer Record Brief (ORB)) * Enclosure 3 – a memorandum for HRC, unknown date, subject: Correction to Filing of Administrative Reprimand for LTC [Applicant], 9435 * Enclosure 4 – his GOMOR, dated 9 June 2011, with rebuttal and a memorandum for HRC, dated 30 June 2011, subject: Administrative Reprimand Filing Determination for LTC [Applicant] * Enclosure 5 – his GOMOR, dated 16 June 2011 (removed from OMPF) * Enclosure 6 – a memorandum from HRC, dated 21 May 2012, subject: Evaluation Report Appeal (20100402-20110201) * Enclosure 7 – numerous email between the applicant and his senior rater's executive officer, dated between 24 October 2011 and 18 May 2012, and several memoranda addressing his referred OER, with copies of OERs and a memorandum from the Deputy Director, Operations, dated 7 October 2011, referencing revisions to the referred OER * Enclosure 8 – an email objecting to a second below center of mass OER * Enclosure 9 – a draft copy of an initial annual OER for the period 1 April 2010 through 31 March 2011 * Enclosure 10 – a Defense Intelligence Agency (DIA) polygraph examination report, dated 9 April 2011 * Enclosure 11 – a security clearance verification, dated 5 March 2012 * Enclosure 12 – DASEB Docket Number AR20110023255, dated 19 January 2012 * Enclosure 13 – DASEB denial of applicant's request and a memorandum for ARBA, dated 12 March 2012, subject: Filing appeal from [Applicant] * Enclosure 14 – a Department of the Army Civilian (DAC) report (44 pages) * Enclosure 15 – a memorandum for DIA, dated 24 July 2011, subject: Rebuttal points to DIA investigation File Number 21-1000960 * Enclosure 16 – a letter of support, dated 12 March 2012 * Enclosure 17 – a letter of support, dated 6 March 2012 * Enclosure 18 – a letter of recommendation, dated 10 June 2011 * Enclosure 19 – 8 letters of support, dated between 11 November and 1 December 2011 * Enclosure 20 – 2 OERs covering the period 2 February 2011 through 31 August 2012 CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army on 22 August 1991, in the rank of second lieutenant. He entered active duty on 30 April 1992. 2. On 1 January 2009, he was promoted to the rank/grade of LTC/O-5. 3. On 9 June 2011, the applicant received a GOMOR. The GOMOR stated in pertinent part: a. He was reprimanded for engaging in sexual relationships with women who were not his wife. The investigation revealed that while serving the U.S. in a foreign country, he committed the misconduct with two Israeli women and a DIA civilian employee. His conduct resulted in the U.S. Ambassador to Israel personally removing him from his position as an Army Defense Attaché. b. His conduct was unacceptable and was considered an embarrassment to the U.S. Army. As a field grade officer representing the U.S. abroad, he was required to maintain the highest standards of professional and personal conduct. His actions demonstrated a complete disregard for Army Values and ultimately showed that he put his selfish desires ahead of his service to the country and the reputation of the U.S. Army. c. The GOMOR was administratively imposed under the provisions of Army Regulation 600-37 (Unfavorable Information) and not as punishment under the Uniform Code of Military Justice (UCMJ). The imposing official stated he was considering whether to direct that the reprimand be filed permanently in his OMPF; however, prior to making his filing decision, he would consider any matters presented within 10 days of the date of the GOMOR. 4. On 16 June 2011, the GOMOR was modified to read, in pertinent part, the applicant "engaged in multiple adulterous relationships while serving the U.S. in a sensitive position as an Army Attaché in a foreign country. The enclosed investigation reveals the [Applicant] committed this misconduct with multiple foreign national women and failed to report those foreign contacts in violation of DIA Regulation 50-17. Furthermore, [Applicant] engaged in a two-year long adulterous relationship with a DIA civilian employee while posted to the same assignment." 5. On 27 June 2011, the applicant submitted a rebuttal, wherein he stated, in part that he took full responsibility for his actions and acknowledged having failed his wife and the vows he made to her. His disclosures regarding his transgressions were made voluntarily to a DAC Special Agent during the course of a counterintelligence interview. He remained as committed as ever to the Army and was hopeful he would continue to serve. He requested that the GOMOR be filed locally. 6. On 30 June 2011, after reviewing the applicant’s rebuttal and supporting documents, the imposing official directed placement of the GOMOR in the applicant's OMPF. 7. On 15 December 2011, the applicant received a referred OER for the period 2 April 2010 through 1 February 2011. He appealed the referred report to the OSRB, wherein he sought corrections to the rater and senior rater portions of the OER. 8. On 10 May 2012, the AGDRB determined the highest rank/grade in which the applicant served satisfactorily for the purpose of computation of retired pay was MAJ/O-4. 9. On 23 August 2012, the DASEB denied his request for transfer of the GOMOR to the restricted folder in his OMPF. 10. On the same date, the OSRB granted the applicant partial relief of his appeal of the referred OER. Specifically, the Board directed the removal of the senior rater's comment addressing the applicant's receipt of a GOMOR for his failure to report foreign contacts. The OSRB further determined the applicant had not provided sufficient evidence to warrant removal of the entire OER. 11. The OSRB record of proceedings noted the senior rater's statement that there should have been two OERs covering the period in question; a senior rater option and a subsequent relief for cause OER, which would be forwarded separately. However, the applicant did not receive a relief for cause OER, his subsequent OER was a six month annual report. 12. On 31 August 2012, the applicant was honorably retired under the authority of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 6-13c (1), by reason of sufficient service for retirement. On 1 September 2012, he was placed on the Retired List in the rank of MAJ. 13. The applicant provides: a. A copy of an unfiled (emphasis added) relief for cause OER for the period 2 February 2011 through 10 June 2011, wherein the applicant was rated as below center of mass for the reporting period. b. A self-authored letter, wherein he states he objects to the wrongful insinuation that his private failing somehow affected the performance of his professional duties. The sequence of administrative actions took on a path of spiraling consequences that seem far more severe than the offense. These actions were supported by a distant chain of command, who never met him, and organizations that refused, rejected, and ignored appeals, rebuttals, and corrections to many of these actions. Most notable in new evidence are the letters of support from the former Director, DIA, who ordered him returned to service, as well as a new letter from the Commander, U.S. Special Operations Command – both of whom support his retirement as a LTC. c. Two OERs issued subsequent to his receipt of the GOMOR, covering the period 2 February 2011 through 31 August 2012, which show he was rated as center of mass. d. Several letters of support that attest to his military service, professionalism, and abilities. The letters state, his personal issues did not affect his job performance and they recommended he be retired in the rank of LTC. REFERENCES: 1. 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. 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. b. 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. c. 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. d. 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 the 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 15-185 (ABCMR), the regulation under which this Board operates, provides that the ABCMR will decide cases on the evidence of record. It is not an investigative agency. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Applicants do not have a right to a hearing before the ABCMR; however, the ABCMR Director or the Board may grant a formal hearing whenever justice requires. 3. 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 6-13c (1) provides guidance for retirement at 20 years of service. It states, a Regular Army or U.S. Army Reserve commissioned officer with 20 years active federal service, of which 10 years is active commissioned service, may, on their request and the approval of Secretary of the Army, be retired. DISCUSSION: 1. The applicant's requests for reversal of the AGDRB's decision place him on the Retired List in the rank of MAJ, correction of his record to show he was placed on the Retired List in the rank of LTC, and a personal appearance before the board, were carefully considered. He contends he served honorably as a LTC and his infidelity did not affect the performance of his duties or the quality of his service. 2. The evidence of record shows he received a GOMOR for unprofessional conduct while serving in the rank/grade of LTC/O-5. The GOMOR noted that as an officer representing the U.S. abroad, he was required to maintain the highest standards of professionalism and personal conduct. Instead, his actions demonstrated a complete disregard of Army values. 3. Additionally, he received a referred OER. The GOMOR and referred OER were permanently filed in his OMPF and he voluntarily elected to retire. 4. 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. 5. 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. In accordance with applicable regulation, 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. There is no evidence of error or injustice in the actions of the AGDRB. 6. A formal hearing may be authorized by the Board or by the ABCMR Director whenever justice requires. In this case, the evidence of record and independent evidence provided by the applicant are 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) AR20150012727 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012727 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2