ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  5 June 2019

	DOCKET NUMBER:  AR20170007738


APPLICANT REQUESTS:  the result of his Army Grade Determination Review Board (AGDRB) be overturned and he be retired in the rank/grade of lieutenant colonel/O-5

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Attorney letter
* An affidavit from applicant
* Letters of support from superiors, peers, and subordinates
* A letter of support from applicant’s wife
* A Physical Evaluation Board (PEB) appeal with support letters
* A General Officer Memorandum of Reprimand and Rebuttal to the AGDRB   

FACTS:

1.  The applicant, through his attorney, states:

     a.  He entered the Army in 1991.  He was promoted to lieutenant colonel (LTC) in October 2009 and held that rank for almost seven years.  In 2012, he was to be medically retired, but successfully argued that he was fit for duty and was retained.  He received a General Officer Memorandum of Reprimand (GOMOR) and a General Officer Article 15 stemming from the same event.  He left a rough draft excerpt of a novel he was writing at the desk of a female civilian worker.  The genre of his novel was admittedly sexually graphic.  

     b.  He admits that not leaving a note saying it was from him was an error in judgment and wishes he could erase this mistake.  When the female found the manuscript she went to her supervisor, who in turn called the Criminal Investigation Command (CID).  An investigation was launched and she never named him as a suspect.  The suspects she named were forced to submit saliva swabs for testing.  He went to the Trial Defense Service (TDS) and was advised to say nothing and invoke his rights, if questioned.  In the end, CID reviewed video tapes showing applicant was in the area at the time the manuscript was dropped off, but if was not for him stepping forward and admitting that he left the manuscript, CID would have had no proof against him.  He submitted an appeal to the AGDRB and the DASA (RB) retired him as a major (MAJ).  

2.  Among the issues noted by applicant’s attorney are:  

     a.  He did not intend to violate the Army’s Sexual Harassment/Assault Response and Rape Prevention (SHARP) program and did not create a hostile work environment.  Before leaving the manuscript, he never said anything inappropriate to the civilian female or acted in any unfitting manner.  

     b.  He did not intentionally violate his commander’s no-contact order.  He simply ran into the female in question accidently after having visited a friend at his last unit.  She was not there when he arrived, but was in the parking lot as he was leaving.  Additionally, applicant received bad advice from TDS.  In his current attorney’s opinion, he would have been better served had he come forward immediately and explained the misunderstanding.  He would likely have received a verbal counseling.  Instead, because he stayed quiet on the advice of TDS and then invoked his right to silence when he met with CID, the matter escalated.  Then, once CID discovered the video footage, TDS reversed course and advised him to come forward even though CID had no tangible evidence against him.  

     c.  The applicant’s attorney would have advised him to continue to invoke his right to silence, because there was no upside to coming forward at that point.  When he did step forward, it made it appear that he was hiding something when really all he was doing was following the advice of TDS.  Significantly for the Board’s review, none of the above issues and arguments were presented to the AGDRB, because applicant, who is not an attorney, was in no position to assert them.  An attorney letter would have been helpful and possibly resulted in a different outcome.           

3.  The applicant’s attorney continues by noting the financial loss to applicant and his family on a monthly basis is $843.57.  If applicant continues receiving retired pay as a MAJ, he and his family will lose $10,242.84 per year and, without factoring in any pay raises, a total of $409,713.60 over forty years.  This is an unbelievable amount to lose for one bad moment in almost seven years as an LTC.  He has no history of improper conduct.  More importantly, the loss affects his wife and daughter who financially depend on him.  The attorney then quotes excerpts from his enclosed letters of support.  She concludes by noting the irony that had applicant not argued that he was fit rather than unfit, he would have been medically retired in 2012 as a LTC.  He has suffered public humiliation, received an Article 15, and a GOMOR.  This one bad decision should not define the rest of his life nor should it destroy the financial stability of his family.  He has paid his penance and should be allowed to retire as a LTC.




4.  The applicant provides:

     a.  A personal affidavit in which he discusses his passion for the Army and his goals entering the military along with various assignments.  With respect to the misconduct that led to the AGDRB, he states that he was good friends with the female civilian.  He knew he was getting out of the Army and was trying his hand at writing a novel in the genre of “Fifty Shades of Grey.”  He left an excerpt on her desk to read.  She did not realize it was from him and the situation blew up.  He declined to speak to CID until he could talk to TDS.  He never thought this would turn into a CID event.  

     b.  When he talked to TDS counsel, he was advised to just wait until CID called again.  He feels if he had immediately stepped forward, before CID got involved, this all would have been handled differently.  His TDS counsel assisted him with what to say at the Article 15, but could not attend.  She basically recommended that falling on his sword would be the best course of action.  He read his statement and received punishment.  However, at no time did he ever try to harass any current or former co-workers.  He tried to mentor those around him and specifically the female civilian employee involved.  She came to him for guidance on personal issues and he felt he gave good sound advice.  He apologizes for this mix-up.

     c.  Seventeen letters of support from various supervisors, peers, and subordinates both military and civilian to include one retired major general (MG(R)). MG(R) M__’s letter notes his belief that applicant’s conduct was “misconstrued” as sexual harassment and cites to applicant’s prominent role in promulgating the message that sexual harassment and sexual assault will not be tolerated.  The letters uniformly laud applicant’s character, leadership, duty performance, and professionalism and recommend he be retired as a LTC. 

     d.  A letter of support from applicant’s wife in which she describes her marriage and her husband’s contributions to the Army, as well as her own.  She notes the significant financial impact on her family of the decision to retire applicant as a MAJ and asks the Board to consider the long term financial impact on the entire family.  She states their financial planning, including for their daughter’s education, has been built on her husband retiring as a LTC and they will lose more than $400,000.00, if he is retired in the lower grade.  She states applicant received his punishment with dignity and retiring him as a MAJ punishes her and her six-year old daughter in the years to come.

     e.  The applicant’s 4 May 2012 appeal to a PEB finding of unfitness in which he successfully argues that he is in fact fit for duty and can withstand the physical rigors required of a soldier, despite some issues with a known pre-existing condition that  limits his ability to wear a ballistic helmet.    

     f.  The applicant’s submission to the AGDRB, which includes a personal statement from applicant, two general officer thank you notes, an email regarding applicant’s receipt of a MG Keith L. Ware Award, and officer evaluation reports from 2010-2016. 

5.  A review of applicant’s service record shows:

     a.  The applicant entered active duty on 22 October 1991.

     b.  A decision memorandum signed by the DASA (RB), dated 19 September 2016, determining applicant’s service as a LTC was not satisfactory and directing he be retired as a MAJ.

     c.  A request that an AGDRB be conducted submitted by MG A__ F__.

     d.  A memorandum for applicant informing him of the pending AGDRB and notifying him of his rights with respect to the AGDRB process.

     e.  Applicant’s Officer Record Brief.

     f.  A record of nonjudicial punishment (NJP) administered by MG A__ F__  in which  applicant is found guilty of willfully disobeying a no contact order given by a superior commissioned officer and conduct unbecoming an officer and a gentleman by leaving a sexually explicit letter under a female’s work keyboard.  The punishment included a forfeiture of $4,438.00 pay, $4,000 of which was suspended for a period of six months to be remitted if not vacated prior to that time, and a punitive written reprimand further elaborating on applicant’s misconduct.

     g.  Evidence supporting the offenses that were the subject of NJP.

     h.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) showing applicant was honorably retired effective 1 November 2016.  Block 18 notes that his retired list grade is that of MAJ.         

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  The Board determined he received all due process and there was no error or injustice in this case.  The Board also found that justifying some of the outcome on bad advice from TDS counsel not convincing, because the decision to follow such advice, regardless how viewed now, remained with the applicant.  The Board concluded that the appropriate authorities reviewed the applicant’s case and he was denied relief based upon a fair and equitable evaluation of the evidence.   


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 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.











REFERENCES:

1.  Title 10, USC, section 1370, addresses the general rule and exceptions for determining the retired grade of commissioned officers.  It states, in pertinent part, that unless entitled to a higher grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 (disability) of this title shall be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.  In order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years. 
2.  Army Regulation 15-80 (Boards, Commissions, and Committees—Army Grade Determination Review Board and Grade Determinations) governs the actions of Army Grade Determination Review Board (AGDRB).  The AGDRB determines or recommends the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability. 

* Paragraph 1-8 states, in pertinent part, that the Deputy Assistant Secretary of the Army (Review Boards) (DASA)(RB)) will make discretionary grade determinations for the Secretary of the Army (SA) for officers below the grade of brigadier general involving service retirement, physical disability retirement, computation of retired pay, or separation for physical disability. 
* Paragraph 2-1 states, in pertinent part, that the AGDRB operates within the Office of the Secretary of the Secretary of the Army under the supervision of and as a component board of the Army Review Boards Agency.  The AGDRB consists of military officers senior in rank to and in at least a grade equal to the highest grade held by the individual whose grade is being considered.  Additionally, at least one member of the AGDRB will be at least one grade higher than the highest grade held by the individual whose grade is being considered.
* Paragraph 2-4 states, in pertinent part, that a grade determination is an administrative decision to determine appropriate retirement grade.  Although a lower grade determination may affect an individual adversely, it is not punitive.  The AGDRB will consider each case on its own merits.  Generally, the determination will be based on the soldier’s overall service in the grade in question.  Circumstances pertinent to whether service is found satisfactory include:  medical reasons which may have been a contributing factor in the misconduct; compassionate circumstances; length of time in grade; performance level; nature and severity of misconduct, if any; and, the grade at which the misconduct was committed.
* Paragraph 2-5 states, in pertinent part, that service in the highest grade 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.  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 the grade.
* Paragraph 2-8 states, in pertinent part, that the soldier whose case is being considered is not entitled to appear before the AGDRB.  Before the AGDRB considers a case, the individual will be advised that his grade will be considered by the AGDRB, of the evidence that will be considered, of the right to consult with a Judge Advocate or seek private counsel at no expense to the Government, and of the right within a reasonable time (normally 30 days) to submit matters for consideration by the AGDRB.  
* Paragraph 4-1 states, in pertinent part, that an officer is not automatically entitled to retire in the highest grade served on active duty.  For officers below the grade of brigadier general, the AGDRB will recommend to the DASA (RB) for final determination, the highest grade in which an officer has served satisfactorily.  The AGDRB recommendation is purely advisory, and the SA or the SA’s designee is not bound by that recommendation.  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.  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 proceeding will be forwarded for a grade determination.  

ABCMR Record of Proceedings (cont)	AR20170007738


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