BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006890 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006890 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 Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)) decision to retire him in the rank/grade of lieutenant colonel (LTC)/O-5, and instead retire him as a colonel (COL)/O-6. 2. The applicant states: a. On 14 November 2014, the DASA (RB) determined he should be retired as an LTC; he subsequently retired on 31 January 2015. He asserts the DASA (RB)'s decision was made in error. He contends Section II (Guidance), paragraph 2-4 (Grade Determination Considerations) within Army Regulation (AR) 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations) states, "Generally, determination will be based on the Soldier’s overall service in the grade in question." The regulation goes on to say that such a determination is to reflect the "highest grade satisfactorily served." b. The applicant claims he is now being unfairly penalized for an isolated error in an otherwise lengthy period of satisfactory service. He asserts the record shows he served as a COL for over 7 years (apparently counting from promotion effective date of 30 September 2007 to retirement date of 31 January 2015), and the misconduct in question represented a single, limited episode within a brief period. In addition, his infractions did not affect the unit, and brought no discredit upon the Army. Of note, his infractions occurred shortly after returning home from his third deployment. (Note – his official military personnel file only indicates two deployments, both to Iraq: 29 October 2005 to 16 January 2006; 1 January to 31 July 2010.) * he had difficulty integrating back into his family and marriage on his return from Iraq * during Thanksgiving and Christmas in 2010, his morale was at its ebb and he succumbed to the stress of redeployment; as a COL he was supposed to be stronger, and realizes now he should have sought help instead of suffering in silence * he believes the DASA (RB) did not consider these mitigating and extenuating circumstances c. In early 2012, he received an adverse action under the Uniform Code of Military Justice (UCMJ), as well as an unfavorable, referred officer evaluation report (OER). He points out the commanding general who administered his UCMJ action elected to place that action in the restricted portion of his official military personnel file (OMPF). d. The events that culminated in his referred OER and UCMJ action occurred between November 2010 and March 2011, a small fraction of his 7 years and 4 months of service as a COL. He states he is "deeply sorry and supremely embarrassed by this incident and [does] not seek to excuse [his] culpability. Instead it is [his] intent to outline the limited nature of the situation and highlight [his otherwise] satisfactory performance." (1) The strain of deployment, coupled with his difficulties transitioning back to his marriage, led to a lapse in judgment. * in September 2010, he began communicating with a woman using his government Blackberry device; his infractions were limited to using his government communications device for other than official purposes between September and November 2010 * in November 2010, the relationship became adulterous; his affair was with a woman who lived out of state and who was not affiliated with the military; at no time was anyone in his organization aware of the situation, and as such no discredit was brought upon his unit or the Army * his chain of command made him aware that his infractions were known in March 2011; once informed, the incident ceased and he maintained the proper poise necessary to preserve the integrity of the organization (2) Up until the incident, his career was without blemish. He was promoted to COL in September 2007, when he served as the Director of a Joint Emergency Medicine Residency. This organization is one of the Department of Defense's (DOD) largest programs for training physicians. After this assignment, he was awarded Army-sponsored training at a local university. This training prepared him to serve as the chief of a clinical investigations department. As the chief of this department, he led the Army's largest medical research organization and executed the ethical review of all of the Army's medical research being conducted in Iraq, Afghanistan, and the southern region of the United States. (3) He deployed to Iraq in January 2011 (sic) and served 7 months in a combat support hospital as Chief, Professional Services. He supervised 30 officers and 90 noncommissioned officers and Soldiers as they executed the combat casualty care mission. It was in the months following this deployment that he let himself and the Army down. e. With the regretful incident behind him, he embarked on an effort to repair his career and to demonstrate his value to the Army. Following the referred OER, his senior rater for his next OER was the same officer who administered his UCMJ action. Both his rater and senior rater affirmed his performance was strong and that he possessed great value for the Army. In his more recent OERs, he received similar strong support with regard to his duty performance and potential for continued service in positions of greater responsibility. f. Over the next 3 years, he continued to serve proudly, and earned the trust and confidence of his chain of command. His contributions to the Army span a broad array of areas important to combat and readiness missions. * along with a handful of colleagues, he was instrumental in convincing the Army medical leadership to support the Army flight paramedic initiative; this highly successful program has saved the lives of many wounded Soldiers on the Afghanistan battlefield * he was one of only a handful of uniformed research leaders who pursued clinical trials in far-forward screenings of traumatic brain injury (TBI); additionally, he was active in other important combat casualty care research studies * in 2011, he was recognized with a "Gold-Headed Cane" award for being the top faculty member in his organization * since 2012, the Army Medical Department, through its advanced technology initiative, awarded him successive grants totaling over $1 million * also in 2012, he was appointed as chair of prestigious medical committee; he was reappointed the following year * he was appointed to an Emergency Medical Services Committee * in 2013, he invented a dynamic cadaver model for training medical personnel in life-saving interventions, and submitted a provisional patent application in concert with the Army Medical Research and Materiel Command * in recognition of his national and global contributions, he was tendered a reappointment as a Professor of Military and Emergency Medicine; this honor has continued after his retirement g. Importantly, to maintain wartime readiness, he continued to practice emergency medicine, and instructed Army and Air Force physicians, physician assistants, nurses, and medics in a variety of professional military courses and programs. His impact extended beyond the organization: * he has served on the editorial boards for several professional medical journals * he has continued to publish in areas that are important to the Army, including recent articles that addressed combat casualty care lessons learned and emergent intra-theater evacuation of head-injured casualties * in 2014, he was invited to author and edit a new chapter in the military edition of a medical textbook that is now in widespread use within DOD h. He reiterates his request for the Board to assess his complete records as a COL, with due consideration being given to the extenuating and mitigating circumstances noted above. He asks the Board to also consider the effect the requested relief will have on his former spouse and children. 3. The applicant provides: * U.S. Army Human Resources Command (HRC) memorandum, dated 14 November 2014, subject: Retirement in Lieu of Elimination/Grade Determination for Retirement * Assistant Secretary of the Army, Manpower and Reserve Affairs (ASA M&RA) memorandum, dated 10 November 2014, subject: Retirement in Lieu of Elimination/Officer Grade Determination Case [applicant] * ten OERs for rating periods beginning 17 January 2007 and ending 25 June 2014 * two Meritorious Service Medal Certificates, dated 24 June 2010 and 26 May 2014, respectively * News Leader article, dated 23 June 2011 * Annals of Emergency Medicine, April 2013 * Military Medicine, International Journal of AMSUS (Association of Military Surgeons of the U.S.), dated 1 July 2013 * Prehospital and Disaster Medicine, April 2013 * letter, dated 1 July 2012 * 2-Star Notes, dated 5 March 2011 * 1-Star Note, dated 18 March 2011 * 1-Star Note, dated 21 April 2010 * memorandum, dated 8 April 2009, Subject: Selection for Chief, Department of Clinical Investigation * letter, dated 7 November 2008 * letter, dated 20 March 2007 * Military Medicine, "Challenges to Improving Combat Casualty Survival on the Battlefield," May 2014 * Military Medicine, "CT Positive Brain Injury in Mild TBI Patients presenting with Normal SAC Scores," November 2014 * Prehospital Emergency Care, "Performance of Junctional Tourniquets in Normal Human Volunteers," August 2014 * Advanced Emergency Nursing Journal, "Ultrasound Measurement of Inferior Vena Cava Diameters by Emergency Department Nurses," 2014 * The Internet Journal of Medical Simulation, "Development of a Perfused Cadaver Model of Exsanguinating Hemorrhage for Procedural Training and Device Evaluation," 2013 * Air Medical Journal, "Emergent Interfacility Evacuation of Critical Care Patients in Combat," July-August 2012 * The Army Medical Department Journal, "Sharpening the Edge: Paramedic Training for Flight Medics," April-June 2011 * Military Medicine, "Clinical Quality Management in the Combat Zone: The Good, the Bad, and the Unintended Consequences," April 2011 * Military Medicine, "Advising and Assisting an Iraqi Army Medical Clinic: Observations of a U.S. Military Support Mission," September 2011 * American Journal of Emergency Medicine, "ED use of military beneficiaries," July 2008 * Prehospital and Disaster Medicine, "Military Medical Assistance Following Natural Disasters: Refining the Rapid Response," January-February 2009 * Annals of Emergency Medicine, Disaster Medicine/Editorial, "Thinking the Unthinkable," February 2009 * Annals of Emergency Medicine, "Out-of-Hospital Combat Casualty Care in the Current War in Iraq," 2008 * Military Medicine, "San Antonio Military Medical Center Integration: A Case Study in Organizational Leadership Design," 2008 * chapter 3, "Fundamentals of Combat Casualty Care" CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) as a Reserve Officers' Training Corps (ROTC) cadet on 11 September 1981. Following his graduation as the ROTC Distinguished Military Graduate, he was appointed as a USAR commissioned officer in the Medical Service Corps (MSC), and executed his oath of office on 16 December 1985. 2. On 18 September 1986, he requested clearance from the USAR so that he could be appointed as a commissioned officer in the New York Army National Guard (NYARNG). His request was approved, and he executed his oath of office as an NYARNG commissioned officer in the MSC on 4 November 1986. 3. He attended medical school and graduated in May 1990. On 24 May 1990, he executed his oath of office as an NYARNG Medical Corps (MC) commissioned officer. 4. On 1 January 1991, he separated from the NYARNG, and was transferred to the USAR Control Group (Reinforcement). 5. Orders Number A-06-003823, dated 9 June 1994, issued by the U.S. Total Army Personnel Command (now HRC), ordered him to active duty to fulfill a 4-year term of voluntary obligated service. His reporting date was 18 July 1994. 6. He was promoted to LTC effective 30 September 2001. 7. He executed his oath of office as a Regular Army Medical Corps commissioned officer on 2 October 2001. 8. Effective 30 September 2007, he was promoted to COL. 9. On 15 April 2011, under the provisions of AR 15-6 (Procedures for Administrative Investigations and Boards of Officers), the applicant's commander appointed an investigating officer (IO) to investigate allegations the applicant had an adulterous affair with a civilian government contract employee, and used his official position for personal gain. 10. The IO completed the investigation on 21 November 2011 and submitted the following: a. The appointing authority had initiated this action based on numerous emails received from the husband of the civilian government contracting employee; the husband asserted the following: * the applicant had been carrying on an affair for some time with his wife, who was an employee of a government contracting firm; his wife was the project manager for a portable oxygen concentrator that the Army was testing * military dollars were spent to secure flights, hotels, and meals for their tryst * the husband speculated the applicant could be collaborating on a potential new product with the intent to sell it to the military b. The IO was additionally instructed to investigate the foregoing, as well as any other issues that arose during the investigation, such as obstruction of an investigation and solicitation. c. The applicant was not interviewed, but questions were submitted to his attorney; the applicant elected not to answer the questions. d. The IO found that between August 2010 and March 2011(approximately 8 months), the applicant: * engaged in an adulterous affair with the civilian government contract employee in violation of Article 134 (General Article – Adultery), UCMJ * attempted to obstruct the official investigation by deleting emails from his office computer once the affair was discovered; this violated Article 134 (General Article – Obstructing Justice) * misused government property by failing to abide by the System Security Authorization Agreement; this was a violation of Article 92 (Violation of or Failure to Obey a General Order or Regulation) * was absent without leave (AWOL) in violation of Article 86 (AWOL) * filed a false claim for temporary duty (TDY) expenses, which violated Article 132 (Frauds Against the U.S.) * used his position for personal gain by: applying government funds for TDY travel that was personal in nature, using government personnel to prepare personal documents, having subordinates approve his wrongful TDY trips, and using his signatory authority to approve the TDY trips e. The IO also found the applicant wrote a manuscript for publication, based on his close personal relationship with the product's project manager, about the oxygen concentrator being tested by the Army. The IO contended the article could result in a favorable bias toward the product, thus benefiting both the company and the person with whom the applicant was having the affair. f. The IO recommended the applicant be relieved for cause and undergo appropriate UCMJ action. g. The appointing authority approved all findings except the last dealing the preparation of a manuscript allegedly biased toward the oxygen concentrator. 11. In or around March 2012, the applicant received a referred relief for cause OER for the rating period 16 July 2011 through 15 March 2012. a. In addition to comments describing his "great academic strengths," the rater indicated those strengths were overshadowed by the applicant's poor judgment and lapse in moral integrity. The rater further noted, "Because of [applicant's] behavior and lack of professionalism to include adultery and violating the Joint Ethics Regulation, [the rater] directed his relief for cause from his position as [applicant's position]." The rater recommended retention as a physician due to his considerable talents, research skills, and knowledge. b. The senior rater indicated the applicant should not be promoted and rated him below center of mass. In his comments, the senior rater affirmed the applicant had made "clearly outstanding" contributions in the areas of research and combat medicine, but his "inappropriate behavior severely disrupted good order and discipline requiring relief for cause." c. The applicant provided a written response in which he stated his disagreement with the OER. He contended the report was administratively and factually inaccurate. He further asserted the comments by his rating officials did not accurately reflect his duty performance during the rated period, nor did they correctly state the character of his service. 12. On 13 March 2012, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ. a. He was charged with the following UCMJ violations: * Article 134 (General Article – Adultery) by wrongfully having sexual intercourse with a married woman who was not his wife while he himself was married * Article 134 (General Article – Obstructing Justice) when he wrongfully endeavored to impede an investigation by deleting emails from his government email account * two specifications under Article 92 (Violation of or Failure to Obey a General Order or Regulation) for communicating with his government phone and cellphone for unauthorized purposes, and for using military personnel to type an article for unofficial purposes * Article 132 (Frauds Against the U.S.) for presenting a voucher which contained a fraudulent claim in the amount of $55 * Article 86 (AWOL) for absenting himself from 25 to 26 February 2011 b. The applicant elected to have a closed hearing, not to demand trial by court-martial, to have a person speak in his behalf, and to present matters in extenuation and mitigation. c. The imposing authority found him guilty of all specifications and directed the following punishment: forfeiture of $5,175 and a written reprimand. The imposing authority further directed the NJP action be filed in the applicant's restricted OMPF folder. d. The applicant declined to file an appeal. 13. HRC memorandum, dated 28 March 2013, subject: Initiation of Elimination, notified the applicant he had been identified by the Fiscal Year 2014 COL, Army Medical Department, Centralized Selection List, Command Selection Board as an officer who was required to show cause for retention on active duty. The action was based on substantiated derogatory activity, which had resulted in a referred OER (rating period: 16 July 2011 through 15 March 2012), and for conduct unbecoming an officer. 14. On 13 February 2014, a board of officers convened to determine whether the applicant showed sufficient cause to be retained on active duty. The applicant personally appeared before the board with counsel and was able to submit matters in rebuttal. Additionally, the applicant's official military personnel file (OMPF) was attached as evidence. a. Six witnesses spoke in the applicant's behalf and lauded his contributions. While generally acknowledging senior officers should be held to a higher standard, and essentially affirming the applicant's conduct was wrong, they described the applicant as a visionary who was the architect of a complete revamping of the Army combat medic program, that he was an excellent mentor, and was one of a few senior leaders in emergency medicine. b. The applicant testified he deeply regretted the error he made. (1) He acknowledged committing adultery, and that he misused his government phone, Blackberry device, and government email account. (2) He stated the affair occurred in 2010 after he returned from his second tour in Iraq. It was a difficult deployment and, as the senior physician at the combat support hospital, he had no one with whom he could confide; additionally, it was hard to ask for help. On his arrival home, his wife did not give him a warm reception; his marriage had been "on the rocks" prior to leaving for Iraq. (3) While it appeared he had deleted emails in response to the investigation, he contended he routinely deleted emails; he could not explain why "they were all deleted one or two days prior to the command finding out about the affair." (4) As to the article he authored about the oxygen concentrator, writing this article was how he met the person with whom he had the affair, and he maintained the article was not written as an effort to promote her project. (5) He contended he had been punished, and that the intent of such punishment was to correct behavior; he asserted his behavior had been corrected. He indicated he met the woman with whom he had the affair in August, and their adulterous activity did not start until much later. He affirmed he "felt a 'funny' feeling very early on knowing that [they] should not be continuing on in a relationship." c. After considering the evidence, the board found the applicant did commit the alleged misconduct and that the misconduct warranted separation. The board recommended an honorable character of service. The specific misconduct identified by the board was: adultery, obstructing an investigation, fraud, violating the Joint Ethics Regulation by misusing his government phone and Blackberry device, AWOL, and wrongfully using military personnel for unofficial purposes. 15. On 27 March 2014, he submitted his request to retire in lieu of elimination. 16. On 31 March 2014, the applicant provided his commander the following as a written response to the above-mentioned board results: a. He did not have additional matters to submit because he believed the board had every document from his Army career. He asked that his commander consider all that he had previously provided. b. After his NJP, he "Soldiered on" because he felt he had been given a second chance; this belief was based on the fact the imposing officer directed the NJP be filed in his restricted OMPF folder and the imposing officer did not initiate a show cause board. c. He worked hard to earn back trust, and remained one of only a handful of uniformed researchers pursuing clinical trials for the screening of TBI. In addition, he was re-appointed as a full Professor of Military and Emergency Medicine and was made the chairperson for an important medical committee. d. His adultery caused the loss of his marriage. He noted, in effect, should his chain of command decide that he should lose his retirement, his former spouse would receive nothing. While he understood he was the cause of this chain of events, he felt he and his family had been punished enough. 17. An Army Review Boards Agency (ARBA) memorandum, dated 25 August 2014, subject: AGDRB, advised the applicant his request for retirement in lieu of elimination packet and his OMPF had been forwarded to the AGDRB. The AGDRB would recommend to the DASA (RB) the highest grade in which he had satisfactorily service for retirement purposes. The applicant acknowledged receipt on 29 August 2014 and stated his intent to submit written material for the AGDRB's consideration. 18. On 9 September 2014, the applicant provided the following written statement with enclosures to the AGDRB: a. He requested to be retired as a COL. He affirmed receiving an adverse UCMJ action and an unfavorable OER, both for an error committed shortly after returning from his "third deployment." He was "deeply sorry and supremely embarrassed by this incident and [did] not seek to excuse [his] culpability. Instead it [was his] intent to outline the limited nature of the situation and highlight [his otherwise] satisfactory performance." b. He stated, "The strain of deployment coupled with difficulties transitioning back to [his] marriage led to a lapse in judgment." He went on to describe the details of his misconduct. He emphasized that at no time was anyone in the organization aware of the situation, and as such no discredit was ever brought on the unit or the Army. Once his chain of command informed him they knew of his misconduct, he stopped. c. He enumerated his accomplishments as well as his contributions achieved after being promoted to COL, and spoke of his 7-month deployment to Iraq where he served in a combat support hospital. He asked the AGDRB to consider his entire record of service as a COL. d. With the exception of nine additional professional medical journal articles and the textbook chapter co-authored by the applicant, all of the documentary evidence submitted by the applicant for the AGDRB's consideration was also included with his current petition to the Board. 19. An ASA M&RA memorandum, dated 10 November 2014, subject: Retirement in Lieu of Elimination/Officer Grade Determination Case [applicant], and regarding ARBA Case Number AR20140010388, stated the following: * the AGDRB reviewed the applicant's requests for retirement in lieu of elimination and grade determination, as submitted by HRC * the DASA (RB) approved his request for retirement and directed the applicant be placed on the Retired List in the rank/grade of LTC/O-5; his service as a COL/O-6 was determined as not satisfactory 20. Orders Number 322-1125, dated 18 November 2014, issued by Headquarters, U.S. Army North (Fifth Army), retired the applicant effective 31 January 2015, and placed him on the retired list effective 1 February 2015 in the rank of LTC. 21. The applicant was honorably retired on 31 January 2015. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 20 years, 6 months, and 17 days of net active service. His rank/grade on the DD Form 214 was listed as COL/O-6. a. He was awarded or authorized: * Iraq Campaign Medal with three bronze service stars * Meritorious Service Medal (6th Award) * Army Commendation Medal (5th Award) * Army Achievement Medal * Joint Meritorious Unit Award * Meritorious Unit Commendation (2nd Award) * U.S. Coast Guard (USCG) Meritorious Unit Commendation * Army Superior Unit Award * Army Reserve Component Achievement Medal * National Defense Service Medal (2nd Award) * Global War on Terrorism Service Medal * Humanitarian Service Medal * Army Service Ribbon * USCG Special Operations Service Ribbon * Armed Forces Reserve Medal with 10-Year Device (Bronze Hourglass) * Expert Field Medical Badge * Flight Surgeon Badge * Parachutist Badge b. Under "Special Additional Information" it showed the separation authority as AR 600-8-24 (Officer Transfers and Discharges), paragraphs 6-17d (Retirement in Lieu of Permanent Change of Station) and 4-2b (Reasons for Elimination – Misconduct, Moral or Professional Dereliction, or In the Interests of National Security). The narrative reason was "unacceptable conduct." 22. The applicant provides: a. A total of 10 OERs covering rating periods from 17 January 2007 through 25 June 2014. Included are the referred OER, cited above, and an above- center-of-mass (ACOM) OER given when he was still an LTC, but in a promotable status. Apart from the referred OER, all are favorable; three are ACOM, four are center-of-mass (COM); one, under the current evaluation system, indicates he should be retained as a COL, and the other remaining OER reflects the senior rater did not have sufficient time to provide a rating. Comments included: * one of the most intelligent and incisive thinkers with whom the rater had worked; highly respected by peers and superiors (OER ending 1 June 2009) * versatile, decisive, and highly accomplished officer; a most outstanding clinical leader, academician, and MC officer of the highest caliber (OER ending 6 January 2010) * extremely competent and inspirational leader; excelled at his duties and demonstrated critical thinking and problem solving skills (OER ending 18 July 2010, covered his deployment in Iraq) * nationally recognized subject matter expert in prehospital/far-forward combat resuscitation and emergency medical research (OER ending 25 June 2012) * excelled as a clinical leader and scientist; internationally recognized expert in emergency medical care; proven to be an exceptional value as a clinician and graduate medical education faculty member (OER ending 25 June 2013) * played a pivotal role in the development of a device which enabled triage of mild TBI, resulting in early treatment and return to duty (OER ending 25 June 2014) b. Two Meritorious Service Medal Certificates, as well as letters and Star- Notes recognizing his contributions. c. A total of 17 professional medical journal articles and a textbook chapter, co-authored by the applicant, all of which serve to highlight the level of his medical expertise. REFERENCES: 1. AR 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 states that generally, a grade determination will be based on the Soldier’s overall service in the grade in question. (1) Circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the following: medical reasons which may have contributed to a reduction in grade or misconduct; compassionate circumstances; lengths of time in grade (TIG); any active duty service obligations; level of performance, as reflected in evaluation reports; the nature and severity of misconduct; and the grade at which the misconduct was committed. (2) 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 grade determinations is “highest grade satisfactorily served,” not whether the individual has been sufficiently punished. b. Paragraph 2-5 (Unsatisfactory Service) states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when: (1) Reversion to a lower grade was expressly for prejudice or cause or owing to misconduct. (2) There is sufficient unfavorable information to establish that the Soldier’s service in the grade in question was unsatisfactory. One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade. However, service retirement in lieu of or as the result of elimination action will not, by itself, preclude retirement in the highest grade. c. Paragraph 2-6 (Service in Lower Grade) states if service in the highest grade held was unsatisfactory, the Soldier can be deemed to have served satisfactorily in the next lower grade actually held. d. Paragraph 2-10 (Reviews) states if a Soldier, retiree, or other former Soldier believes an error or injustice has occurred with respect to his or her grade determination, the individual can apply to the ABCMR. e. Chapter 4 (Officer Personnel Grade Determinations) 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 SA or the Secretary’s designee. (1) Officer grade determinations will result in either a decision to retain the individual’s current grade as the retired grade or change the retired grade to a grade lower than that currently held. (2) Officer grade determinations are normally accomplished at time of retirement and the officer's grade is fixed at that time. (3) 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 ASA 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, but are not limited to, a memorandum of reprimand; nonjudicial punishment under UCMJ, Article 15; or court-martial or civilian conviction. 2. The Manual for Courts-Martial includes a table indicating maximum punishments for violations of specified articles of the UCMJ: * Article 86 (AWOL) – 1 month confinement; forfeiture of 2/3rds pay for 1 month * Article 92 (Violation of or Failure to Obey a General Order or Regulation) – dishonorable discharge; bad conduct discharge; 2 years confinement; total forfeitures * Article 132 (Frauds Against the U.S.) – dishonorable discharge; bad conduct discharge; 5 years confinement; total forfeitures * Article 134 (General Article – Adultery) – dishonorable discharge; bad conduct discharge; 1 year confinement; total forfeitures * Article 134 (General Article – Obstructing Justice) – dishonorable discharge; bad conduct discharge; 5 years confinement; total forfeitures DISCUSSION: 1. The applicant claims the DASA (RB)'s decision to place him on the retired list as an LTC was made in error, and that he is being unfairly penalized for an isolated error in an otherwise lengthy period of satisfactory service. He essentially asserts the DASA (RB) did not fully consider the mitigating and extenuating circumstances associated with his deployments to Iraq, and contends the decision was not, but, should have been, based on his overall service. In support of his petition, he submits documentary evidence that shows his record of service as a COL (OERs, recognitions, and awards) and articles he has published in professional medical journals. a. Both evidence of record and that offered by the applicant appear to affirm that his impact on combat medicine throughout his military career, and specifically while he served in the rank of COL, was remarkably important. Even after he received an unfavorable OER and was administered NJP, his raters and senior raters lauded the significance of his contributions. b. The applicant asserts his misconduct was an isolated incident extending over a relatively short duration. While alleged to have occurred approximately during an 8-month period (August 2010 to March 2011), of equal importance is the substance of what occurred during that period: * an investigation found he had an adulterous affair, misused government property, used his position for personal gain, went AWOL for one day, attempted to obstruct an official investigation, and filed a false claim for $55 * during his NJP hearing, the applicant was found guilty of the afore- cited six violations of the UCMJ, and, since then, has essentially admitted to and claimed responsibility for his wrongdoings * had his case gone to a court-martial, the available maximum punishments would have included a dishonorable discharge, total forfeitures, and confinement * the seriousness of the offenses is not necessarily diminished by the fact his misconduct was disposed of by NJP action and a referred relief for cause OER; nor is the seriousness necessarily reduced in significance because the imposing official placed the NJP in the applicant's restricted folder * AR 15-80 requires a grade determination to consider the Soldier's overall service in the grade in question, but it also states such an assessment must evaluate the nature and severity of misconduct and the grade at which the misconduct was committed c. The applicant contends the DASA (RB) did not appropriately consider the mitigating and extenuating circumstances associated with his case. (1) In his self-authored statement, submitted with this petition, he indicates his last deployment was difficult, and that he had a hard time integrating back into his family and marriage. He states his morale was at its ebb over Thanksgiving and Christmas 2010, and he succumbed to the stress of redeployment. (2) When he appeared before the board of inquiry to show cause for retention, he testified his second tour in Iraq had been difficult and, as the senior physician at the combat support hospital, he had no one with whom he could confide; additionally, it was hard to ask for help. He noted his marriage was already in trouble before he left, and on his return his wife did not give him a warm reception. (3) In his 9 September 2014 memorandum to the AGDRB, he stated, "The strain of deployment coupled with difficulties transitioning back to [his] marriage led to a lapse in judgment." (4) Although he gave a somewhat more detailed version of events in his self-authored statement to the Board (i.e., his morale was at its ebb over Thanksgiving and Christmas 2010, and he succumbed to the stress of redeployment), it appears he had previously conveyed the gist of the extenuating and mitigating circumstances that contributed to his misconduct. It is reasonable to conclude the language recently added by the applicant would not have substantially changed or added more weight to what he had earlier described. d. He maintains, because he essentially kept his misconduct a secret, his infractions did not affect the unit and brought no discredit upon the Army. By contrast, the general officer who imposed his NJP and served as his senior rater for the referred relief for cause OER stated the applicant's "inappropriate behavior severely disrupted good order and discipline requiring relief for cause." 2. After reviewing the record, the DASA (RB) determined the nature and severity of his misconduct, as well as the grade at which the misconduct was committed, merited a finding that the applicant would be retired as an LTC/O-5. The evidence does not clearly show that this decision was made in error or that it unfairly penalized the applicant. BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006890 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006890 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006890 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2