ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 April 2019 DOCKET NUMBER: AR20160013700 APPLICANT REQUESTS: her Lieutenant Colonel (LTC/ O5) rank be restored. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certification of Release or Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC94-09606 on 23 November 1994. 2. The applicant states she was downgraded to Major (MAJ) after her retirement. She also states: * she did not receive her retirement orders until the day she retired, showing that she was downgraded and the reason for separation was listed as dereliction of duty * she reports her command was punishing her for being a homosexual, the charge was initiated in Egypt and passed to her assignment officer, who had difficulty finding jobs for the applicant * she reports she was finally sent to the Readiness Group at Fort Indiantown Gap; the accusation followed her and the command tried unsuccessfully to have her put out of the Army prior to her 20 year discharge date. When this didn’t work, the commander, whom she never met and who refused to see her, tried to give her a dishonorable discharge. This didn’t work either; however the downgrade did work. She has attempted to fight this through the civilian court system, but it was turned down because this was before Don’t Ask Don’t Tell and she had no recourse * the injustice was cause by homophobia and the desire to punish her; it was even investigated be Criminal Investigation Division (CID) and they could not find evidence * after the applicant retired she was charged and the case was sent to a civilian grand jury; the prosecutor dismissed the case and sent a damning letter to CID and agents were immediately reassigned * the charge of homosexuality was compounded by the fact that she had knowledge and proof that most of the enlisted and officers in the command were involved in black marketing, drugs and prostitution * she states she reported this information and was told no crime was worth the scandal, she was sent home. She received phone calls for a year asking what she knew and if she had done anything about it; she did not do anything because no one would listen to her and she was gay so they did not trust her 3. A review of the applicant's records show: * 5 April 1973, the applicant had direct appointment commissioning as a First Lieutenant (1LT) in the United States Army Reserve (USAR) * 5 August 1975, she was promoted to Captain (CPT) * 13 April 1981, she was appointed as a commissioned officer to the Regular Army * 1 April 1983, she was promoted to Major (MAJ) * 4 January 1989, she was stationed in Cairo, Egypt, DA Form 67-8 (Officer Evaluation) dated 21 November 1989 to 1 April 1990 which shows, senior raters states applicant was early released from this assignment * 1 May 1989, she was promoted to LTC * DA Form 67-8 from 5 October 1986 to 1 April 1990 show the applicant performed in a satisfactory manner * DA Form 67-8 from 2 April 1990 to 27 June 1991 show the applicant received referred reports due to relief for cause * 6 November 1990, the applicant was relieved for cause as the executive officer to an Army readiness group for unprofessional conduct, she verbalized to subordinates she did not like the way the commander was doing business * 27 June 1991, the applicant was relieved for cause from assignment as a Director of Personnel and Installation * 26 August 1991, DA Form 268 (Report to suspend Favorable Personnel Actions) was initiated on the applicant * 24 September 1991, a final CID report of investigation was completed on applicant showing she used her position to hire a person she resided with and shared a mortgage with in an attempt to improve the financial standing of said person; she violated Article 92, UCMJ (Failure to Obey an Order for Regulation) and Article 133, UCMJ (Conduct Unbecoming an Officer and Gentleman) * 30 September 1991, DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) was completed on the applicant showing she was relieved for cause due to failure to obey an order or regulation * 15 October 1991, the applicant was notified she was required to show cause for retention in the Army because of downward trend of overall performance, failure to exercise leadership or command expected of an officer of her grade, failure to discharge assignment commensurate with her grade, personal misconduct, and conduct unbecoming an officer * 21 November 1991, the applicant provided a rebuttal to the show cause for retention notification stating when she was relieved on 27 June 1991 she was not given an opportunity to rebut allegations, leadership did not address her inquires once DA Form 67-8 was completed, she had 18 ½ years of service at the time and performed well within those years, completing three master degrees, coauthoring five textbooks on military ethics and professionalism for TRADOC, and she received letter of appreciation for her work during the time she was relieved for cause * 14 January 1992, the applicant's referral for officer elimination was pushed forward for further processing * 23 January 1992, a request for the applicant to appear before a board of inquiry was forwarded for board action * 18 March 1992, the applicant was notified she was selected for mandatory retirement, with a retirement date of 30 April 1993 unless she voluntarily selected an earlier date * 20 March 1992, a hearing before a board of officers regarding the applicant's case was to be held on 15 April 1992 * 27 March 1992, a memorandum for record shows the hearing schedule for 15 April 1992 was postponed indefinitely * 17 April 1992, the applicant requested a voluntary release from active duty effective 30 April 1993, placing her on retired list effective 1 May 1993 * 20 April 1992, the applicant also submitted a voluntary request for retirement in lieu of elimination * 15 May 1992, the applicant was notified her request for voluntary release from active duty was denied because she did not meet the criteria * DA Form 67-8 from 29 May 1992 to 30 April 1993 show the applicant's performance was professional and effective * 31 December 1992, the applicant was approved for retirement in lieu of elimination * 4 January 1993, Army Human Resource Command (HRC) requested a grade determination board on behalf of applicant * 14 January 1993, a two to one vote recommended the applicant be retired with the rank of MAJ, reason cited was due to relief for cause as shown on DA Form 67-8 * 26 February 1993, the applicant received retirement Orders S37-21 effective 30 April 1993 placing her on retired list effective 1 May 1993 with retired rank LTC and retired pay rank as MAJ * 13 April 1993, the applicant's counsel made a written inquiry to the grade determination board in effect stating how the applicant was unaware of the board and was not given an opportunity to rebut the allegations in the elimination action * the applicant's DD Form 214 shows the applicant was honorably released from active duty., the narrative reason was misconduct, professional dereliction; she was credited with 20 years and 26 days active service 5. On 23 November 1994, the applicant's ABCMR case AC94-09606 shows: * she requested the finding of the grade determination board be revoked and she be granted LTC rank for retired pay purposes with back pay * she be reimbursed for counsel expenses * her DD Form 214 be corrected in item 25 (Separation Authority), item 26 (Separation Code) and item 28 (Narrative Reason for Separation) * her DA Form 3713 (Data for Retired Pay) be corrected in item 3 (Retired Grade) and item 10 (Retire Pay) * her Orders S37-21 be amended to show her retired grade of rank as LTC * determination results state the applicant failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice; the Board denied her requests 6. The applicant's records are void of any documentation reflecting she was punished as a result of engaging in homosexual activity/ conduct in accordance with regulatory guidance at the time. 7. Title 10, USC, Section 3911, shows the Secretary of the Army may, upon the officer's request to retire a regular or reserve officer of the Army who has at least 20 years of service, 10 years of service must be as a commissioned officer. Section 1370 shows the officer will be permitted to retire in the highest grade in which he or she served satisfactorily, as determined by the Secretary of the military department concerned. 8. Army Regulation 635-100 (Officer Personnel), shows the elimination of officers for substandard performance of duty, misconduct, moral or professional dereliction or in the interest of national security. a. Paragraph 4-10 permits officers facing elimination procedures with more than 19 years of service to request retirement in lieu of elimination. b. Section XIV shows criteria and procedure for separation for homosexuality. Officers will be separated under this provision if the officer: * is engaged in, attempted to engage in, or solicits another to engage in homosexual acts * the officer states he or she is a homosexual or bisexual * the officer has married or attempted to marry a person known to be of the same biological sex as the officer * a discharge Under Other Than Honorable Conditions may be issued if there is finding that during the current term of service the officer attempted, solicited or committed a homosexual act. 9. Army Regulation 15- 80 (Army Grade Determination Review Board and Grade Determinations) shows the procedures for grade determination. The Army Grade Determination Review Board (AGDRB) serves as an advisory board for cases referred under various statues to include title 10, USC, Section 1370. Paragraph 7 shows unsatisfactory service may be determined when there is sufficient unfavorable information to establish the soldier's service in the grade in question was not satisfactory. One incident of misconduct may form the basis for a grade determination board; however, simply because an officer is being processed for elimination is not a basis for a grade determination board. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant contentions were carefully considered. The applicant contends, in effect, she was punished for homosexual activity, which led to her retirement and a grade determination to reduce her from LTC to MAJ. The record shows she was punished due to financial activities deemed unbecoming of an officer. Based upon the preponderance of evidence, the Board agreed the grade determination to reduce her in rank was warranted as a result of the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 to amend the decision of the ABCMR set forth in Docket Number AC94- 09606 on 23 November 1994. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, Section 3911, shows the Secretary of the Army may, upon the officer's request retire a regular or reserve officer of the Army who has at least 20 years of service, 10 years of service must be as a commissioned officer. Section 1370 shows the officer will be permitted to retire in the highest grade in which he or she served satisfactorily, as determined by the Secretary of the military department concerned. 2. Army Regulation 635-100 (Officer Personnel), shows the elimination of officers for substandard performance of duty, misconduct, moral or professional dereliction or in the interest of national security. a. Paragraph 4-10 permits officers facing elimination procedures with more than 19 years of service to request retirement in lieu of elimination. b. Section XIV shows criteria and procedure for separation for homosexuality. Officers will be separated under this provision if the officer: * is engaged in, attempted to engage in, or solicits another to engage in homosexual acts * the officer states he or she is a homosexual or bisexual * the officer has married or attempted to marry a person known to be of the same biological sex as the officer * a discharge Under Other Than Honorable Conditions may be issued if there is finding that during the current term of service the officer attempted, solicited or committed a homosexual act. 3. Army Regulation 15- 80 (Army Grade Determination Review Board and Grade Determinations) shows the procedures for grade determination. The Army Grade Determination Review Board (AGDRB) serves as an advisory board for cases referred under various statues to include title 10, USC, Section 1370. Paragraph 7 shows unsatisfactory service may be determined when there is sufficient unfavorable information to establish the soldier's service in the grade in question was not satisfactory. One incident of misconduct may form the basis for a grade determination board; however, simply because an officer is being processed for elimination is not a basis for a grade determination board. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160013700 2 1