IN THE CASE OF: BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20160006919 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: 16 March 2017 DOCKET NUMBER: AR20160006919 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: 16 March 2017 DOCKET NUMBER: AR20160006919 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests: a. correction of the applicant's records to show his retired grade as lieutenant colonel/O-5 instead of major/O-4 and b. a personal appearance before the Board. 2. Counsel states: a. The last pay grade in which the applicant served honorably for a period of 3 years is lieutenant colonel/O-5. b. He was administratively reduced in grade from colonel/O-6 to major/O-4 by the Army Grade Determination Review Board (AGDRB). The reduction in grade is not supported by evidence and should be overturned with instructions to restore the applicant to the grade of lieutenant colonel/O-5 for the purpose of calculating military retired pay benefits. Because his rank was wrongfully reduced to major/O-4, an injustice occurred which substantially prejudices him. c. His records regarding his military pay grade upon retirement should be corrected to lieutenant colonel/O-5 for the following reasons: (1). He was promoted to colonel/O-6 on 20 May 2013 and he retired on 31 August 2015. By operation of the applicable regulations which require members at the pay grade of colonel/O-6 or higher to serve at least 3 years of time in grade to retire in the grade of colonel/O-6, his correct retirement rank is lieutenant colonel/O-5. (2). He submitted his request for resignation in lieu of elimination after appearing before an officer elimination board. The board was convened for the purpose of determining whether he committed the acts of misconduct, moral or professional dereliction. The elimination proceeding was predicated upon substantiated derogatory information, specifically, a general officer memorandum of reprimand (GOMOR), dated 5 September 2013. The GOMOR in question alleged that he engaged in sexual harassment, racially insensitive and sexist comments, and inappropriate behavior, and violated the Health Insurance Portability and Accountability Act of 1996 (HIPAA) by allowing children to be present while patient care was conducted. The GOMOR and Army Regulation  15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation were limited to accusations during the more recent period when the applicant had already been promoted to colonel/O-6. Therefore, the applicant was never afforded a meaningful opportunity to challenge or rebut allegations of sexual harassment violations said to have occurred during the period of time he was a lieutenant colonel/O-5. To now reduce him in grade for actions which he was never previously reprimanded or counseled is a severe injustice. (3). During the board of inquiry proceedings, the Government counsel offered evidence of an email from the applicant to certain clinical staff members, which seems to suggest that he did not approve or support the Army's sexual harassment policies. The email was in jest and was during the period that he was a lieutenant colonel/O-5, and almost 3 years before his promotion to colonel/O-6. This email is the only evidence that was used to support any misconduct during the relevant time period, but was not shown to be indicative of any systemic conduct that was so significant as to overshadow his superior duty performance. Therefore, there is insufficient evidence in accordance with Army Regulation 15-80 (AGDRB and Grade Determinations) to support a conclusion that the applicant engaged in any misconduct that necessitates a reduction beyond and below the grade of lieutenant colonel/O-5. (4). A conclusion that the applicant failed to serve honorably as a lieutenant colonel/O-5 is against the evidence and ultimate findings at his board of inquiry. When he was notified of the board, he was informed that the lowest characterization of service he could receive would be honorable. The authority appointing the board had the option of imposing the less desirable characterizations of general under honorable conditions or other than honorable conditions. The board that actually considered his case awarded him an honorable discharge, notwithstanding the finding of misconduct. If the applicant's service is characterized as honorable, then all of his service, to include his service in the rank of lieutenant colonel/O-5, would also have to be considered honorable, thereby requiring that he be retired at least in that pay grade. d. During the period the applicant was a lieutenant colonel/O-5, he performed certain duties and achieved certain results that are positive and noteworthy. However, the AGDRB failed to consider these matters as required under the regulation. Pursuant to Army Regulation 15-80, paragraph 2-4, a grade determination will be based on the Soldier's overall service. The regulation provides that the board should consider performance levels, as reflected in evaluation reports and other portions of the service records that reflect performance. (1) The applicant's officer evaluation reports (OERs) during this relevant time period conclusively establish that he is an officer who performs at an extremely high level. Each one of these OERs that reflect his service as a lieutenant colonel/O-5 from 1 July 2006 to 23 April 2013 were outstanding because he was dedicated to serving his patients and ensuring the clinics to which he was assigned were consistently providing the highest level of service to ophthalmology patients. Additionally, there is no OER during this time period that reflects he failed to adhere to equal employment opportunity guidelines or failed to support the Army's regulations and policies as they relate to sexual harassment. (2) His military records are devoid of any counseling statements or other records reflecting poor performance or conduct. Additionally, there are no counseling statements that document he behaved in any manner that would violate the Army's sexual harassment or equal opportunity policies. Certainly, behavior that would support, substantiate, or require the reduction in a military grade would have been observed and documented in his military records. To hold the applicant accountable for alleged misconduct several years after the fact, when he was never made aware of any allegedly offending behavior, is against the long-held notions of fairness in putting the Soldier on notice that such behavior should be corrected. (3) The complete absence of negative counseling statements or records documenting misconduct establishes that the applicant's reduction in grade from lieutenant colonel/O-5 to major/O-4 was arbitrary, unsupported, and contrary to his actual performance and conduct. Because there are no records to support the reduction in grade, the applicant must be restored to the grade of lieutenant colonel/O-5 for the purpose of military retired pay calculation. (4) In addition to his superior OERs, he received several various awards as a result of his professionalism, performance, and leadership. He received the Meritorious Service Medal for meritorious service during the period 6 July 2002 to 25 June 2010. He received the Army Commendation Medal for outstanding meritorious service during the period 25 July 2011 to 21 October 2012. (5) The overwhelming weight of evidence supports a finding that the applicant should be retired in the pay grade of lieutenant colonel/O-5. To find otherwise, the Board would have to dismiss or ignore his work as a talented and respected eye surgeon. Enclosed with this application are several letters of support from physicians who personally observed the applicant's work performance, character, and leadership during the period of time in question. Each of these physicians provide a true and accurate account of the applicant as a highly productive service member, skilled surgeon, approachable leader, contributor to the military community, caring professional, and loyal officer. These personal accounts of the applicant demonstrate that deeming his highest honorable pay grade as major/O-4, as opposed to lieutenant colonel/O-5, would be contrary to the evidence and contrary to the service he provided during the time period in question. e. The applicant requests correction of the unjust reduction in his pay grade to major/O-4. The unwarranted and unsupported reduction in grade is grossly severe and has a permanent negative impact on the applicant. The most obvious and detrimental impact of the grade reduction is the significant decrease in the amount of retired pay he receives. Additionally, the grade reduction to major/O-4 denies the applicant the honor that he is due based on his 20 years of faithful and productive service as an Army physician. The reduced pay grade fails to account for and recognize the quality of his medical services and the sincere efforts he put into the medical care of Soldiers. This error in reduction to the grade of major/O-4 also stands in stark contrast to his service as reflected in his outstanding OERs. Should the unjust reduction to the pay grade of major/O-4 not be corrected, he will definitely suffer prejudice from not realizing the honor, retired pay, and benefits upon which he relied and strove to obtain during his long and successful career. f. Based on the foregoing reasons, the applicant requests correction of his military records to reflect that he retired in the rank and pay grade of lieutenant colonel/O-5 and submission of these records to the Defense Finance and Accounting Service to establish the correct amount of his retired pay and benefits. 3. Counsel provides: * letter, dated 29 September 2015 * undated addendum * 19 enclosures as outlined on page 4 of his addendum * letter from a Member of Congress, dated 4 May 2016 CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a second lieutenant/O-1 in the U.S. Army Reserve on 23 May 1990. He was commissioned as a captain/O-3 in the Regular Army Medical Corps on 21 May 1995. He was promoted to lieutenant colonel/O-5 effective 20 May 2007. 2. Counsel provided copies of the applicant's: a. Meritorious Service Medal Certificate for meritorious service as the Chief, Ophthalmology Service, for the period 6 July 2006 to 25 June 2010; and b. Army Commendation Medal Certificate for outstanding meritorious service for the period 25 July 2011 to 21 October 2012. 3. Counsel provided six OERs covering the period 1 July 2006 through 23 April 2013 showing the applicant was rated "Outstanding Performance, Must Promote" by his raters and "Best Qualified" by his senior raters. 4. The applicant was promoted to colonel/O-6 effective 20 May 2013. 5. On 5 September 2013, the applicant received a GOMOR for fostering a hostile work environment resulting in a sexual harassment and equal opportunity complaint within the Eye, Ears, Nose, and Throat Clinic. Despite being aware that his actions were in violation of equal opportunity policies, he continually engaged in sexual harassment, racially insensitive and sexist comments, and inappropriate behavior. On more than one occasion, he violated the HIPAA by allowing his children to be present while patient care was conducted. 6. On 2 April 2014, the applicant was identified by the Health Services Division to show cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b, because of misconduct, moral or professional dereliction. This action is based on the following reasons for elimination: * substantiated derogatory activity resulting in issuance of a GOMOR * conduct unbecoming an officer 7. On 2 April 2014, the U.S. Army Human Resources Command initiated elimination action against him due to misconduct, moral or professional dereliction. 8. On 26 August 2014, a board of inquiry was conducted to determine if he should be discharged from the Army and the appropriate characterization of his service. The Board recommended his discharged with characterization of his service as honorable. The findings and recommendation were approved on 15 January 2015. 9. On 28 January 2015, the applicant requested retirement in lieu of elimination. 10. A memorandum from the Deputy Assistant Secretary of the Army (Review Boards), dated 26 June 2015, states: a. The AGDRB reviewed the request for retirement in lieu of elimination based on misconduct and moral or professional dereliction and the request for a grade determination submitted by the U.S. Army Human Resources Command. b. She approved his retirement in the grade of major/O-4 in lieu of elimination. c. She determined his service in the grades of colonel/O-6 and lieutenant colonel/O-5 was not satisfactory. 11. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired in the rank of colonel/O-6 on 31 August 2015 by reason of unacceptable conduct. 12. Headquarters, III Corps and Fort Hood, Orders 182-1078, dated 1 July 2015, retired him on 31 August 2015 and placed on the Retired List in the retired grade of major/O-4 effective 1 September 2015. 13. Counsel provided several letters of support from physicians who personally observed the applicant's work performance, character, and leadership during the period of time in question. They attest: * he is a man of integrity with a direct but approachable way about him * he is an asset to the Army * he is the most productive and efficient surgeon in his department * his clinical and surgical expertise in his field is unmatched * he is well loved by his peers and patients * he is an outstanding clinician REFERENCES: 1. Army Regulation 600-8-24 states a commissioned officer must serve on active duty for 3 years in grade to retire in a rank above major/O-4 and below lieutenant general/O-9. All retirements, except for disability separations, involving commissioned and warrant officers who have been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry (except minor traffic infractions) since their last promotion will be forwarded to the Assistant Secretary of the Army (Manpower and Reserve Affairs) in accordance with Army Regulation 15-80 for a grade determination provided such information is reflected, or should be reflected by regulation, in the officer's official military personnel file. Examples of such findings or conclusions include, but are not limited to, a memorandum of reprimand, nonjudicial punishment under Article 15 of the Uniform Code of Military Justice, and court-martial or civilian conviction. Even if the information described above is not required for filing in the officer's official military personnel file, the separation authority may forward any retirement that contains information deemed substantiated, adverse, and material to a determination of retired grade. 2. Army Regulation 15-80 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 2-3 states most grade determinations do not require action by the AGDRB or the exercise of discretion by other authorities because they are automatic grade determinations that result from the operation of law and this regulation. For example, under Title 10, U.S. Code, section 1370, an officer will normally retire at the highest grade served, unless service at that grade is deemed unsatisfactory. b. Paragraph 2-5 states service in the highest 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. 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. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant retired on 31 August 2015 in the grade of colonel/O-6 and was placed on the Retired List in the retired grade of major/O-4. 2. The evidence shows he was promoted to lieutenant colonel/O-5 in May 2013. He received a GOMOR in September 2013 for fostering a hostile work environment resulting in a sexual harassment and equal opportunity complaint within the Eye, Ears, Nose, and Throat Clinic; continually engaging in sexual harassment, racially insensitive and sexist comments, and inappropriate behavior; and violating the HIPAA by allowing his children to be present while patient care was conducted. 3. Statutory and regulatory guidance provide that service in a grade will not be considered to have been satisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory. 4. In June 2015, the Deputy Assistant Secretary of the Army (Review Boards) determined his service in the grades of colonel/O-6 and lieutenant colonel/O-5 was not satisfactory. 5. The applicant's accomplishments and successes of his service as a lieutenant colonel/O-5 were carefully considered. However, his behavior (actions for which he received a GOMOR) violated military standards. The determination that he would be placed on the Retired List in the grade of major/O-4 was supported by the evidence and was within the authority of the Deputy Assistant Secretary of the Army (Review Boards). 6. Counsel's request for a personal appearance hearing was also carefully considered. By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision in his 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) AR20160006919 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006919 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2