IN THE CASE OF: BOARD DATE: 19 November 2015 DOCKET NUMBER: AR20150014339 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 first lieutenant (1LT)/O2-E. 2. The applicant states: a. On 29 November 2012, he received a General Officer Memorandum of Reprimand (GOMOR) from the Commanding General, U.S Army Maneuver Support Center of Excellence, for a hostile command climate and using inappropriate language in front of subordinates. b. The Commanding General had the GOMOR filed in his performance folder and he received a referred DA Form 67-9 (Officer Evaluation Report (OER)) due to the GOMOR being filed in his performance folder during the rating period of 20120402 – 20121120. c. He was never relieved from his command due to the GOMOR and went on to work as an Army Portfolio Management System (APMS) Officer, training cadets where he was highly regarded as a trusted mentor for the future officers of the U.S. Army by the cadre and PMS. d. The GOMOR and the referred OER were the only adverse actions he received during his 26 years of service. e. He applied to retire from the U.S. Army in October 2014 with a retirement date of 1 October 2015 at the grade of O3-E. f. He was informed by the officer retirement section at the Human Resources Command (HRC), in accordance with Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations), that all officers with adverse action in their file are automatically referred to the Army Grade Determination Review Board (AGDRB) to determine what grade an officer served satisfactorily to retire. g. A GOMOR was filed in his performance folder by the Commanding General against the recommendations of both his battalion and brigade commanders with whom he had daily interaction. He requested to see the Commanding General, but the request was denied. h. The Commanding General’s decision not to see him denied him the ability to understand why he made his decision as well as allowing him to explain why the GOMOR should be filed locally and that the incident was a one-time incident and not a pattern of misconduct. i. On his OER for the period ending on 20 November 2012, he was given marks for Respect and Building of “No”. He believed these marks were inaccurate, because during his rating period, he ensured the utmost respect was displayed for his Soldiers and leaders. j. Since the GOMOR and the referred OER were issued, he has been eligible for promotion to major (MAJ) for fiscal year (FY) 2014 and FY 2015; however, he was not selected for promotion. k. He applied for retirement in October 2014 for a date of retirement of 1 October 2015. Once his packet was submitted to HRC, he was notified in April 2015 that his retirement was approved, but in the grade of O2-E. l. His overall performance in the grade of O3-E has been satisfactory. His OER’s prior to and after the incident clearly show that his overall performance was satisfactory and that he should be placed on the retired list as an O3-E vice an O2-E. m. His misconduct was not criminal or a pattern of misconduct, but a one- time incident that was corrected once it was brought to his attention and he was counseled by his leaders on the situation. n. Army Regulation 15-80 states that “although 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.” o. Grade determinations are not considered punitive and the standard for grade determinations is the “highest grade satisfactorily served,” not whether the individual has been “sufficiently punished.” 3. The applicant provides: * Emails * Letters of support * OER’s * Findings of an Informal Commander’s Inquiry date 10 September 2012 * Officer Record Brief (ORB) * Retirement Orders * DD Form 214 * Documents regarding AGDRB * Letter of Acknowledgement from the AGDRB * GOMOR dated 29 November 2012 * Rebuttal to his GOMOR dated 10 December 2012 CONSIDERATION OF EVIDENCE: 1. The applicant had 16 years of prior Army enlisted service. He was appointed as a Reserve commissioned officer in the rank/grade of second lieutenant (2LT)/O1-E on 18 August 2005. 2. On 18 February 2007, he was promoted to the rank of first lieutenant (1LT)/O2-E. 3. On 1 October 2008, he was promoted to the rank of captain (CPT)/O3-E. 4. On 11 July 2012, an informal Commander’s Inquiry into allegations of misconduct was conducted by MAJ H_______ of the 92nd Military Police Battalion, Fort Leonard Wood, MO. 5. The allegations against the applicant were for fostering a hostile command climate; inappropriate language and using inappropriate nicknames, some of which could be construed as racist; and preferential treatment. 6. The allegations were substantiated and the applicant was given a GOMOR by the Commanding General on 29 November 2012. The GOMOR stated: a. You are hereby reprimanded for fostering a hostile command climate and using inappropriate, discriminatory and abusive language to your subordinates. b. As an officer, you have a duty to act responsibly in every situation, to do what is right, and to set a positive example for your subordinates. You have completely failed in these responsibilities and discredited yourself and the U. S. Army. I seriously question your judgement and potential for further service. c. Your actions have embarrassed and disappointed your chain of command. You may forward any matters you wish to me to consider in extenuation, mitigation, or rebuttal through your chain of command within 7 calendar days. I will consider any matter you submit before I decide how this reprimand should be filed. 7. On 4 December 2012, the applicant acknowledged receipt of the GOMOR and on 1 February 2013, submitted comments in response to the GOMOR. He accepted responsibility for his actions and realized that as an officer, he was held to a higher standard. Once it was brought to his attention that some of his comments were considered unprofessional and inappropriate, he immediately made the necessary adjustments and continued to lead his unit successfully. 8. On 19 December 2012, after reviewing the applicant’s response to the GOMOR, the Commanding General directed permanently filing the GOMOR in the applicant's Official Military Personnel File. 9. On 30 March 2015, the AGDRB determined the highest rank/grade in which he served satisfactorily for the purpose of computation of retired pay was 1LT/O-2E. 10. On 1 April 2015, the applicant acknowledged the AGDRB’s decision and stated he intended to submit written material with a request for reconsideration. 11. On 21 April 2015, the applicant submitted a statement and documents for reconsideration of AGDRB’s decision. 12. The AGDRB determined the highest rank/grade in which he served satisfactorily for the purpose of computation of retired pay was 1LT/O2-E. Therefore, on 30 September 2015, the applicant was transferred to the Retired List as a 1LT/O2-E. He completed 10 years, 1 month, and 13 days of active commissioned service. 13. The applicant submitted eight OER's covering the period of 15 May 2008 to 30 June 2015. Seven of the OER’s indicated he always exceeded requirements, was recommended for promotion, and was given a mark of “highly qualified.” One OER, given to the applicant after he received his GOMOR, covering the period of 2 April 2012 to 20 November 2012 indicated he had potential for promotion to MAJ and should be recommended when authorized. 14. The applicant submitted several letters of support which state he had a positive impact on the organization and had proven himself to be an asset to his command. His one honest mistake does not define his leadership abilities and his entire career in which he served honorably. They wholeheartedly recommend that he be retired in the rank of CPT/O3-E. 15. Army Regulation 15-80 establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army. a. Paragraph 2-4 (Grade Determination Considerations) states 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. The AGDRB will consider each case on its own merits. Circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the following: (1) nature and severity of misconduct, if any. Although 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 rank/grade determinations is the "highest grade satisfactorily served," not whether the individual has been sufficiently punished; and (2) the rank/grade in which the misconduct was committed. b. Paragraph 2-5 (Unsatisfactory Service) states service in the highest rank/grade or an intermediate rank/grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the rank/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 rank/grade was unsatisfactory, regardless of the period of time served in the rank/grade. c. If a Soldier, retiree, or other former Soldier believes an error or injustice has occurred with respect to his or her rank/grade determination, the individual can apply to the Army Board for Correction of Military Records (ABCMR). Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth procedures for petitioning the ABCMR for relief. DISCUSSION AND CONCLUSIONS: 1. The applicant’s misconduct is not what is expected of a CPT/O3-E with his time in grade (TIG) and documented experience. His GOMOR stated he fostered a hostile command climate, and his use of inappropriate, discriminatory, and abusive language toward his subordinates was disappointing and embarrassing to his command. 2. The incidents that caused his GOMOR were repeated incidents over a period of time. Therefore, they were not isolated incidents. 3. The GOMOR he received stated, as an officer, he had a duty to act responsibly in every situation, to do what was right, and to set a positive example for his subordinates. He completely failed in those responsibilities and discredited himself and the U. S. Army. The Commanding General seriously questioned his judgment and potential for further service. 4. There is no evidence the applicant did not know what he was doing or that he could not tell right from wrong and adhere to the right. The record of misconduct as a CPT/O3-E supports the determination by the AGDRB. 5. His period of enlisted service in the Regular Army is noted. However, in determining satisfactory service as a CPT/O3-E, only that period the applicant actually served in that rank/grade would have been considered by the AGDRB. 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 as a matter of equity. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X___ ____X____ ____X_____ DENY APPLICATION 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. ABCMR Record of Proceedings (cont) AR20120011941 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150014339 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1