ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 April 2019 DOCKET NUMBER: AR20160015429 APPLICANT REQUESTS: * 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 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Self-Authored Statement, dated 26 August 2016 * Attachment 1 – Memorandum, Army Review Boards Agency, dated 13 May 2015, subject: Army Grade Determination Review Board (AGDRB) * Attachment 2 – Memorandum, Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs, dated 15 September 2015, subject: Officer Grade Determination Case (Applicant) * Attachment 3 – Letter, Law Office of X____, dated 23 October 2015, reference: Freedom of Information Act/Privacy Act Request * Attachment 4 – Letter, Department of the Army Freedom of Information and Privacy Division, dated 17 May 2016, with attachments (202 pages) FACTS: 1. The applicant states: * he should be allowed to retire as an LTC/O-5 based on his overall duty performance * he was informed the AGDRB had reviewed his voluntary retirement and determined he should be placed on the Retired List in the grade of major (MAJ)/O-4 * he believes the AGDRB's decision was in error and resulted in a gross injustice * he was effectively reduced two grades (from colonel (COL)/O-6 to MAJ/O-4) * the stigma of the demotion and monetary penalty associated with it are wholly disproportionate to the conduct at issue * it is even more egregious when one considers the retirement status of General (GEN) X____ who committed far more serious misconduct than he did * GEN X____ pled guilty to a misdemeanor offense and paid a fine of $100,000 * GEN X____ did not face a grade determination board and was permitted to retire at the rank/grade of GEN/O-10 * GEN X____ admitted to being involved with the very same reporter as he was involved with, Ms. X____, and admitted to transmitting classified information to her * it is fundamentally unfair to reduce a retirement grade for an offense which is less serious and not for an offense which is far more serious as GEN X____'s * this leaves the distinct impression that those at the top are immune from lower grade determinations, while those lower on the totem pole will be made to pay a severe price for their transgressions * it was clear the AGDRB believed that GEN X____'s conduct was relevant to the grade determination in his case * the AGDRB sought out both the underlying plea documentation in GEN X____'s case, as well as a New York Times article on his plea * he believes there were serious errors in the review process that impacted the AGDRB's decision * he was not advised the AGDRB would consider evidence consisting of email between himself and Ms. X____, the New York Times article regarding GEN X____' conviction, plea documents regarding GEN X____, and other information regarding Ms. X____ * the AGDRB did not following their own rules established in Army Regulation  15-80 (Army Grade Determination Review Board and Grade Determinations) in that any evidence not contained in the Soldier's Official Military Personnel File will be referred to the Soldier for review and comment 2. The applicant was promoted to: * MAJ/O-4 effective 1 February 2002 * LTC/O-5 effective 1 January 2008 * COL/O-6 effective 1 April 2013 3. On 23 February 2015, the Commanding General, Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, OK, issued the applicant a general officer memorandum of reprimand for being involved in a romantic and inappropriate relationship with a woman who was not his wife during the approximate time frame of January 2011 to April 2011 and providing her with personally identifiable information on U.S. Army Soldiers. 4. On 9 March 2015, the applicant requested voluntary retirement. He stated he understood the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges) pertaining to determination of his retired grade. He believed he was entitled to retire in the rank/grade of LTC/O-5. He understood that final determination of his retired grade would be made by Headquarters, Department of the Army, and that he would be informed if he was not entitled to retire in the grade he specified. 5. On 13 May 2015, the Army Review Boards Agency notified the applicant that his request for retirement was being forwarded to the AGDRB to recommend the highest grade in which he served satisfactory for retirement purposes. He was also was informed that his Army Military Human Resource Record (which included a general officer memorandum of reprimand, dated 23 February 2015), an adverse information summary of the U.S. Army Criminal Investigation Command investigation, and his Officer Record Brief would be forwarded to the AGDRB. 6. On 15 September 2015, the AGDRB determined the applicant's service in the grades of COL/O-6 and LTC/O-5 were not satisfactory and directed his placement on the Retired List in the grade of MAJ/O-4. 7. The applicant retired on 30 November 2015 in the rank/grade of COL/O-6 and he was placed on the Retired List in the rank/grade of MAJ/O-4 effective 1 December 2015. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the overall duty performance of the applicant and the type of misconduct which resulted in the Army Grade Determination Review Board, the Board found that an injustice had occurred. In making this determination the Board found that the applicant was treated unfairly and recommended he be placed on the Retired List in the rank/grade of lieutenant colonel (LTC)/O-5. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does demonstrate the existence of a probable error or injustice. As such, the Boards determined under fairness and justice the applicant was treated unfairly and recommends he be placed on the Retired List in the rank/grade of lieutenant colonel (LTC)/O-5. 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. REFERENCES: 1. Army Regulation 600-8-24 (Officer Transfers and Discharges), prescribes policies and procedures governing transfer and discharge of Army officer personnel. Paragraph 4-24 states any offer who has been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceedings or inquiry since the officer's last promotion will have his case forwarded to the AGDRB for a grade determination to determine the highest grade the officer satisfactorily held while on active duty. 2. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) governs the actions and composition of the AGDRB. The AGDRB determines or recommends the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability. Paragraph  2-8 provides information to be considered. Any evidence not contained in the Soldier's official military personnel file will be referred to the Soldier for review and comment. Before the AGDRB may consider any evidence, the individual will be advised: * that his or her grade will be considered by the AGDRB * of what evidence will be considered * of the right to consult with an officer of the Judge Advocate General's Corps or seek private civilian counsel at no expense to the Government * of the right within a reasonable period of time to submit matters in writing for consideration by the AGDRB 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (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. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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. ABCMR Record of Proceedings (cont) AR20160015429 0 5 1