IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20180000983 APPLICANT REQUESTS: * correction of his record to show he was placed on the retired list in the rank of major (MAJ)/pay grade O-4 (the highest grade he held) upon reaching his 30 year retirement mark * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the narrative reason for separation as "Retirement" versus "Unacceptable Conduct" APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with 6 pages of background information * Meritorious Service Medal (MSM), dated 29 September 2006 * Bronze Star Medal (BSM), dated 18 March 2009 * 1st Squadron, 9th Cavalry Regiment History, Operation Iraqi Freedom (OIF) 2008-2010 * 2-Army Regulation (AR) 15-6 (Procedure for Administrative Investigations and Boards of Officers) investigations with allied documents, and * Report of Preliminary Inquiry, dated 12 September 2012 * Report of Preliminary Inquiry, dated 26 September 2012 * Initiation of Elimination, dated 27 November 2013 * Recommendation of Officer's Request for Retirement in Lieu of Elimination, dated 30 June 2014 * Character References (6) * DA Forms 67-9 (Officer Evaluation Report (OER)) for the period 7 August 2010 through 26 February 2014 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, in section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states that his OERs and his overall career demonstrate exceptional performance at the rank of MAJ. Being forced to retire from the life of service that he loved, at a lower rank, was enough punishment for his transgressions. 3. He provides the following background information. a. On 30 June 2014, Lieutenant General (LTG) M accepted his request to retire in lieu of elimination. The elimination action was initiated because he knowingly kept classified documents from his deployments, and he had failed to turn in an M240B conversion kit, that he found stateside, in a military tough box. Both of these events came to the forefront as the result of a difficult divorce beginning 26 March 2012. He contends that his ex-wife stole his hard drive in the hopes of locating compromising information about him to mitigate her own infidelity. In doing so, she stumbled upon the source material for the 1st Squadron, 9th Cavalry History, Operation Iraqi Freedom 2008-2010 (OIF 08-10). She then turned the hard drive over to her divorce lawyer and the M240B conversion kit to the local police department. b. It is crucial to this case to understand the context of why the classified materials were improperly stored and transported via external hard drive. In June 2008, he assumed command of Combat Outpost Nine in Di Qar, Iraq. The technical difficulties at the time of his deployment placed great challenges on their abilities to secure and transport electronic information. As part of the Release in Place Transfer of Authority (RIP/TOA) his troop established redundant Non-classified Internet Protocol Router Network/Secret Internet Protocol Router Network (NIPRNET/SIPRNET) connectivity via secure satellite. They then commenced operations with the computers and equipment they brought for the deployment. Initially, they expected the Army would issue them computers specifically designated to use on the SIPRNET. However, it quickly became clear that such computers would not be issued and they were forced to use the NIPRNET computers for the remainder of their deployment. This created a cross contamination issue that was made worse by the Secretary of Defense moratorium on the use of all "USB" and external storage devices issued in October 2008. On 30 January 2009, he departed command and he kept a single hard drive that had personal and professional files uploaded. He needed to retain these files to perform his forthcoming duties as the 1st Squadron, 9th Cavalry, Assistant S3, and to answer any lingering questions concerning his command time. He had the S6 representative conduct the file transfer but subsequent to the transfer he discovered that his "PST" files (Microsoft Outlook email record) had mistakenly been placed onto the single hard drive. The applicant stated he was confident this was an honest mistake on the S6's part, and he contends that he never accessed those files in the years following redeployment. c. Once he arrived at the 1st Squadron, 9th Cavalry, his commander, Colonel (COL) H, gave him the additional responsibility of being the Squadron Historian for "OIF 08- 10." His orders were to provide an accurate history of the squadron's training, preparations, and operational conduct, using a broad range of missions. His commander's remarkable leadership and trust inspired him to exceed every expectation. He also received a detailed tutorial on how to circumvent the "USB connection switch" on his issued computer that the Network Enterprise Center had imposed to comply with the 2008 moratorium. He used his access to the squadron's SECRET shared drive to assemble UNCLASSIFIED patrol briefings, UNCLASSIFIED mission press releases, and conduct personal interviews with squadron members of all ranks to accomplish this mission. He became consumed by the task and began to dream of writing and organizing the content; eight years later, he still has the same dreams. He is afraid that he has dishonored the Soldiers he once so ardently served. He is tortured by failing them and the Army. d. Concurrent with his historian duties, he was also a key member of the RIP/TOA planning and execution. Time became an issue and the safe redeployment of their squadron superseded the completion of the squadron's history while in Iraq. The knowledge that COL H would change command within 60 days of redeployment was the impetus to keep the necessary files to complete the history. He used his personal hard drive and personal computer to transport the files stateside and complete the squadron's history. Once he had squadron approval he produced 15 hard copies at his own expense. He then sold those copies to each of the commanders and staff that wanted them to cover the cost of production and provided a free copy to COL H at his farewell ceremony. Additionally, every Soldier in the squadron was provided a free deployment compact disc that included a digital copy of the squadron history. This represented the zenith of his career. He felt a profound sense of honor from the Soldiers of 1st Squadron, 9th Cavalry, but never felt that the task was fully finished. He destroyed/replaced the laptop's hard drive and RAM processor after consolidating the files onto a single external hard drive. This was the same external hard drive he had carried from Combat Outpost Nine to Forward Operating Base Hunter and back stateside. He kept the files in hopes of amending or adding to the squadron history. e. These files laid untouched and unnoticed for 6 years. On 26 March 2012, he informed his ex-wife that he was filing for divorce as a result of her infidelity and on the following night his ex-wife stole the aforementioned hard drive. He had stayed at a hotel so he was not at home the night she took the hard drive. After returning home and discovering the hard drive was missing, he immediately called his supervisor, Lieutenant Colonel (LTC) L, and he informed his chain of command. He informed a special investigator for security clearance investigations in April 2012 about the stolen hard drive with classified data. After receiving no feedback from the investigator, other than Central Clearance Facility (CCF) granting him a TOP SECRET clearance, he reported the spillage, stolen hard drive, and the weapon dismount kit to the Headquarters and Headquarters Battalion (HHBN) S2 and Ill Corps G2 office. They immediately suspended his SIPRNET and NIPRNET accounts and HHBN began an AR 15-6 investigation. f. He was immediately ostracized and reduced to hand carrying messages between desks because he could not operate a computer. The Investigating Officer (IO), MAJ C, concluded that there was no factual finding that the classified spillage had been or would be a national security threat to the United States. In large part, this was because the information was not tactically relevant because the RIP/TOA was complete and all 1st Squadron, 9th Calvary, maps were obsolete by design. On or about 19 October 2012 the AR 15-6 investigation was completed and submitted, with recommendation by LTC M, to the Staff Judge Advocate (SJA) for review. The SJA completed the review and the AR 15-6 findings were initially planned to be briefed to LTG C (outgoing Ill Corps Commander) on 26 October 2012. However, the CG's review was delayed multiple times until 19 November 2012. At that time, LTG C determined that he would receive a GOMOR. g. On 20 November 2012, LTC B (HHBN Commander) informed him that he would receive a GOMOR. LTC B accompanied him to the BN S2 where they returned his Ill Corps TOP SECRET badge and instructed the S2 and G2 to immediately reinstate his TOP SECRET clearance. However, the Corps G2, COL W, stated that his clearance could not be reinstated until the GOMOR filing was complete and a recommendation was sent to CCF for decision. LTG M reviewed the GOMOR on 24 January 2013 and directed that it be filed locally. After consultation with COL W, COL B reversed his earlier decision (to immediately reinstatement his clearance) and submitted a recommendation to CCF to permanently revoke his clearance on 1 February 2013. This was done without consulting/informing him or anyone in his rating chain. He was not informed that this recommendation had been made and forwarded by the HHBN S2. He had to seek out COL B to confirm this fact. h. Sometime in late February or early March 2012, while driving down Robertson Drive in Copperas Cove, TX, with his son, they discovered a green military tough box lying on the roadside. Upon further examination of the contents, he discovered weapons parts belonging to a M240B and camping parts. He did not tell his son what the parts were and he quickly redirected his attention elsewhere while he closed the box and put it away. He figured out who to give the box to, as he was aware that the contents of the box had been removed from the Army inventory based on a safety flaw several years prior. Amidst the turmoil of his divorce, he failed to report the missing items or return them to military custody. These items remained unused in his house until confiscated by his ex-wife and turned over to the local police department. 4. The applicant provides the following argument. a. He strongly believes his 23-year career of honorable service to this great Army far outweighs the mistakes which led to his retirement. The possession of classified documents, found to have no risk to national security, and handling of a discarded military tough box should not merit a permanent reduction in rank. b. His sole intention in possessing the documents was to be able to accurately describe the valiant work his brothers and sisters in the squadron did during OIF 08-10. He took his task as the historian very seriously and he worked tirelessly on creating an excellent final product for his unit members to cherish. His greatest accomplishment in his entire Army career was the creation of this history for the benefit of the Soldiers he proudly served alongside. He felt compelled to pour his energy into creating the best document possible to enshrine the sacrifices and achievements of his brave unit. It is with the cruelest irony that his crowning military achievement ultimately triggered the death of his career, the loss of his rank and pay, and most importantly, the trust of the Soldiers he sought to serve. c. He takes responsibility for intentionally placing the classified materials on a personal hard drive and removing them from the secured system. However, he does feel the technical limitations placed on transferring of electronic materials made it extremely difficult for him to complete this historical recording without violating the protocols on classified materials. This is not an excuse but merely a reality of the situation on the ground at the time he made the decision to transfer the files. At the time, he did not feel there was much risk because the information was no longer operationally significant. He never intended for anyone else to ever have access to these files. The files remained dormant for over half a decade on his personal hard drive. Furthermore, his instinct upon realizing the documents were missing was to inform his chain of command immediately to contain any spillage of data. He did not try to cover up his tracks, or avoid handling this embarrassing incident. He never tried using the materials for any nefarious purpose. He blames only himself. His ex-wife did the right thing, the Soldiers he served with did the right thing, and he failed them all. d. He regrets not immediately turning over the contents of the discarded military tough box that he found in along the road around February 2012. Initially, he had intended on dropping the box on base, but got caught up in the stress of dealing with his ex-wife's marital affairs. The process of filing for divorce and handling the emotional pain of splitting with his ex-wife clouded his judgment. He still should have made the right decision and turned them into the proper authorities. However, he does not feel his possession of these items in any way endangered the Army or jeopardized national security. e. The recommendations made by COL W and COL B were inconsistent with the GOMOR determination by LTG C and LTG M, and effectively overrode their decision to reprimand him but allow him to continue his service. Instead, an administrative means was used to achieve a punitive end that ultimately terminated his service, reduced his retired rank, and denied him meaningful employment, because his DD Form 214 shows the reason for his discharge was unacceptable conduct. f. He is sure that his honesty throughout the investigation and acceptance of responsibility played a role in the local filing of his GOMOR. Both LTG C and LTG M, former Ill Corps Commanders, reviewed both AR 15-6 investigations, and they had a range of options available to them, including a court-martial, but both decided that the offenses were so minor, or the likelihood of recurrence so unlikely, that a locally filed GOMOR was appropriate punishment. Furthermore, LTG M also approved his request to retire in lieu of elimination. LTG M's decision in his case 3 years ago demonstrates that the misbehavior did not rise to an egregious level. 5. The applicant asks that the Board consider his performance in the military. a. He joined the U.S. Army as an enlisted Soldier at 22 years of age as a 19K10 (Armor Crewman). He served honorably on active duty for 23 years, 6 months, and 2 days. As a staff sergeant, he served as tank platoon sergeant, earning recognition as a member of the Audie Murphy Club. He continued to serve as an active duty commissioned officer for the last 13 years of his career and he earned recognition as a member of the Order of Saint George. He also had the great privilege of serving in the rank of MAJ for 3 years and 10 months. He served during combat operations in OIF 05-07, OIF 08-10 in Baghdad, Combat Outpost 9, and Maysan Province in Iraq. b. For his service from 7 August 2010 to 30 June 2011, his rater gave him a top block and stated that his "performance during this rating period proves that he is among our very best FA 50 officers." His senior rater stated he was "knowledgeable, dedicated, and professional." He also recommended promoting him to LTC, and selecting him for Senior Service College. For his service in OIF 05-07, his rater stated he was "without question the best battalion S4" he had ever served with in 19 years of military service. For his service from 1 July 2011 to 30 June 2012, his rater recommended that he be promoted below the zone to LTC because he displayed "superior performance" and he was an "exceptional officer who ranked in the top 8 out of 71 majors on the Corps Staff." His rater further stated, "There is no one I would select before him to plan and execute our most critical force development and modernization actions." He also received a top block on his final evaluation from his rater before retiring because he did "superb work ... [and] did a remarkable job in a very demanding position." c. He was awarded the MSM on 29 September 2006 for "exceptionally meritorious service while assigned as the Battalion S4 during OIF." He was awarded the BSM on 18 March 2009 for "exceptional and meritorious service as the company commander during Operation Iraqi Freedom." 6. A review of the applicant's record shows - * he was appointed as Reserve commissioned officer, in the rank of second lieutenant, on 16 August 2001 * he served overseas in Iraq from 6 December 2005 to 9 December 2006; and from 9 April 2008 to 3 June 2009 * he was promoted to MAJ on 1 January 2011 7. The applicant provides two AR 15-6 Investigations. a. On 27 August 2012, the Headquarters, III Corps and Fort Hood, Fort Hood, TX, commander appointed an IO to investigate the facts and circumstances surrounding the classified material stored in the personal residence of the applicant. He stated that there was strong evidence the classified information had been compromised. On 12 September 2012, the IO issued a Report of Preliminary Inquiry, which shows – (1) The applicant informed the IO that he had two thumb drives and an external hard drive for his personal computer and stated the information was confidential but did not pose a threat to national security because the material was "dated" in relation to Iraq. The information on those drives related to equipment battle losses and information on the construction of a Forward Operating Base (FOB). Further, the information was not current at the time it was compromised. (2) The applicant felt his ex-wife took possession of these drives in hopes of finding something that would hurt his career or hide evidence of her infidelity. His ex- wife took the drives on the night of 27 March 2012, when he spent the night away from home after telling her he was seeking divorce, and he was not sure if any of the information had been compromised. (3) The IO found that the information suggested a spillage of classified information occurred when classified files were downloaded from a secure device to the applicant's devices, but the spillage was not a threat. (4) The IO recommended the applicant receive additional security training, his NIPRNET laptop be scanned and cleaned, and the declassification of any documents if there was no longer a need to continue to classify them. The AR 15-6 was found legally sufficient on 18 September 2012. b. On 17 September 2012, the Headquarters, III Corps and Fort Hood, Fort Hood, TX, commander appointed an IO to investigate the facts and circumstances surrounding how the applicant came into possession of military weapons parts without authorization. On 26 September 2012, the IO issued a Report of Preliminary Inquiry, which shows- (1) The applicant stated he found the parts lying in the road and picked them up; however, another individual reported the applicant told him that he found the weapons down range as his unit was preparing to return stateside. The applicant told the IO he later came across the parts when he was preparing to move and turned them into the local police station. A detective at the local police station confirmed the applicant turned in parts belonging to a M240B, parts for a pistol grip, butt stock, trigger mechanism, fore grip panels, bipod, and user manual. The applicant informed the detective that he found the parts on the road and had intended to turn them in but forgot after he found out his wife was having an affair. (2) The IO found that despite the conflicting versions of how the applicant came into possession of the weapons parts, by his own admission, he was in possession of military weapons parts without authorization. (3) The IO recommended the applicant receive a GOMOR and that the tough box with the weapons parts be turned over to the company arms room to ensure the weapons parts were back in legal military custody. The AR 15-6 was found legally sufficient on 2 October 2012. 8. On 19 November 2012, the applicant received a GOMOR for downloading classified information onto his personal hard drive and for the wrongful possession of military property. The General Court-Martial Convening Authority (GCMCA) stated both actions only came to light when the applicant's spouse turned the hard drive containing classified information over to her divorce attorney. Further, during the AR 15-6 investigation the applicant lied to the IO and his company commander about how he acquired the weapons' parts. It was a matter of serious concern that the applicant had committed such irresponsible acts of misconduct and exercised such poor judgment. a. On 22 January 2013, after rebuttal from the applicant about having lied during the investigation, the GCMCA directed the GOMOR be filed temporarily in the applicant's local unit file with all enclosures. b. On 30 January 2013, the security officer recommended the applicant's security clearance be permanently revoked based on his failure to take proper action, in both documents and weapon parts, over a six year period, which indicated he had no intention of returning the documents or parts to Government control, and he only took action after his ex-spouse turned the information over to her personal divorce attorney, and the parts into the local police department. 9. The applicant was required to show cause for retention on active duty on 27 November 2013 for the reasons listed below - * in late 2006, he downloaded classified documents to his personal hard drive * between January and June of 2008, he downloaded classified documents to his personal hard drive * in August 2012, he was wrongfully in possession of military property, M240B parts * conduct unbecoming an officer, as referenced above * revocation of security clearance for the misconduct referenced above 10. His records further show - * on 6 January 2014, the applicant elected retirement in lieu of elimination * on an unknown dated, he requested retirement in lieu of elimination and to be placed on the Retired List effective 1 April 2014 * on 30 June 2014, LTG M recommended approval of the applicant's request for retirement in lieu of elimination 11. On 3 July 2014, the applicant's request for retirement in lieu of elimination was forwarded to the Army Grade Determination Review Board (AGDRB). 12. On 21 July 2014, the applicant indicated that he would submit written material for the AGDRB to consider, and he acknowledged his understanding that the AGDRB would recommend the highest grade in which he had served satisfactorily for retirement purposes to the Deputy Assistant Secretary of the Army (DASA), Army Review Boards Agency (ARBA), who would make the final decision. 13. The applicant provided a response to the AGDRB on 20 August 2014 wherein he stated that in his 23 years of service he committed three mistakes. The first was as a young enlisted Soldier resulting in an Article 15. The second and third resulted in a locally filed GOMOR, the revocation of his security clearance, and ultimately the end of his career. Two general officers reviewed the two AR 15-6 investigation and recommended he received a GOMOR. This is a clear message that they intended for him to recover and continue his military service. The three lapses in judgment are not the sum of his service. He recounted his combat service in Iraq, and the commendable rating he received as a result of his performance. The four evaluations he received since the being promoted to MAJ clearly indicate his competence as a MAJ and the confidence of his chain of command in his abilities and service. 14. The applicant also provided the following character references for consideration by the AGDRB, all of whom recommend that he be retired in the grade of MAJ. Those character references are summarized below. a. COL B stated the applicant was an exemplary officer in every way and by any measurable standard. While in Iraq, he had the opportunity to observe the applicant on a daily basis when he served as his S4 and all the while he performed in an extraordinary fashion. The applicant was a key player during a challenging deployment where nine Soldiers were killed in action and over 200 were wounded in action. The applicant's extraordinary contributions, dedication, and sacrifice should be considered. b. COL S stated that he had known the applicant for over 10 years and could personally attest to his character. During the train up and deployment to Iraq and redeployment from Iraq the applicant was a huge asset serving as the S4. He considered the applicant to be an officer of outstanding moral character and integrity, and the epitome of Army Values. He was not aware of all of the circumstances that led to the two AR 15-6 investigations, but in his opinion, this was an isolated incident and a lapse in judgment under extreme circumstances. c. LTC J stated he also believed the security spillage and his possession of weapons parts, were isolated incidents. The applicant had no negative counseling or pending disciplinary actions under the Uniform Code of Military Justice. d. LTC G stated the applicant was a man of impeccable honor, committed to his Soldiers and his family, and had the dynamic ability to adapt and overcome. His work ethic and dedication to duty and the U.S. Army remained unparalleled. He had known the applicant since 1997 and had observed him grow, mature, and develop as a leader, mentor and professional among the noncommissioned officer and officer corps. He strongly advocated that the applicant's achievements be holistically taken into consideration. e. LTC M stated the applicant's grave lapse in judgement was due to extreme circumstances and was an isolated based on numerous stressors in his personal life. The applicant demonstrated his integrity through his detailed reporting of the incident and full cooperation in the investigation. The applicant's personal drive and devotion to the mission and their unit was exceptional and he would welcome the opportunity to serve with him again. f. MAJ M stated that he served alongside the applicant on two combat tours. The applicant demonstrated unquestionable character in the performance of his duties as a staff officer and company commander. He witnessed the applicant, at great risk to himself, personally clear all destroyed and damaged vehicles of sensitive items thus sparing the Soldiers under his leadership from observing the death and destruction created by insurgent attacks. He has the utmost integrity and always took care of Soldiers. The security spillage and possession of weapons parts were isolated incidents that have ended the applicant's career; as such the Board should consider his honorable service and his personal sacrifices. g. COL H stated the he was the applicant's squadron commander during OIF and the applicant was an outstanding officer by all metrics. The applicant served as the court-martial officer, and planned and executed three combat operations and conducted a battlefield reconnaissance. In these and all subsequent missions, the applicant demonstrated not only technical and tactical prowess, but also professional maturity indicative of a field grade officer. He also gave the applicant the responsibility of squadron historian. The final product exceeded expectations, honoring the service and sacrifice of the Headhunter Squadron Soldiers and leaders with Cavalry professionalism. Although he was not familiar with all of the facts of the case, it was his understanding that the applicant had accepted responsibility and did not shift the blame. His acceptance of responsibility is indicative of his character. Soldiers sometimes do wrong, but only a few have the character to admit it and accept responsibility. 15. On 23 September 2014, the DASA, ARBA, approved the applicant's request to retire in lieu of elimination and directed the applicant be placed on the Retired List in the grade of O-3E, CPT, having determined that his service as an O-4 was not satisfactory. 16. Headquarters, III Corps and Fort Hood, Fort Hood, TX, issued Orders 273-0123 on 30 September 2014, which placed the applicant on the Retired List in the grade of CPT/O-3, effective 30 November 2014. 17. The applicant retired on 30 November 2014 under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 6-17d (sic 6-16d) and paragraph 4-2b by reason of unacceptable conduct. 18. His DD Form 214 shows his rank/grade as MAJ with an effective date of pay grade as 31 March 2008. 19. The applicant provides the following additional documents. a. An MSM awarded for exceptional meritorious service, outstanding leadership and accomplishments, as the Battalion S4 during OIF, for the period 5 December 2005 to 1 November 2006. b. A BSM awarded for exceptional and meritorious service, superb leadership, technical and tactical expertise, and commitment to excellence, as the company commander during OIF for the period 12 June 2008 to 15 June 2008. c. OERs (4) for the period 7 August 2010 to 26 February 2014. The applicant references his achievements and the laudatory comments made by his rating chain in paragraph 5 above. d. A 84-page history of the 1st Squadron, 9th Cavalry, authored by the applicant. This history contains tactical maps, wartime operations, and the names of individuals assigned or attached to the organization, during OIF from 2008 to 2010. 20. Regulatory guidance states a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay. Although a lower grade determination may affect an individual adversely, it is not punitive. Generally, a determination will be based on the Soldier's overall service in the grade in question, either on active duty or other service qualifying the Soldier for service/physical disability retirement, receipt of retired pay, or separation for physical disability. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. The Board agreed that the applicant's record supported the determination that he must show cause for retention. The Board also agreed that the evidence in his record supports the determination by the DASA, ARBA, that his service as a MAJ was not satisfactory. The Board agreed that his overall duty performance and length of service do not overcome his serious lapses in judgment as a field grade officer. By a preponderance of evidence, the Board determined his retired list grade and the narrative reason for separation recorded on his DD Form 214 are not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges) states - a. Misconduct, moral or professional dereliction, or in the interests of national security, are reasons for elimination. b. Any officer who has been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding or inquiry (except minor traffic infractions) since the officer’s last promotion, will have the case forwarded to the Army Grade Determination Review Board (AGDRB) for a grade determination under AR 15-80 (AGDRB and Grade Determinations) to determine the highest grade the officer satisfactorily held while on AD. c. An officer who receives a notification memorandum of impending elimination may request retirement in lieu of elimination, if the officer has 19 years and 6 months or more active Federal service (AFS) on the date of such application. If the officer elects to retire and the elimination action involved misconduct or moral or professional dereliction, the CG, HRC, will forward the retirement application and memorandum of notification for elimination with all supporting documentation to the AGDRB. Any comment or rebuttal by the officer and the officer’s OMPF will be included in the forwarding documentation. The AGDRB will make recommendation as to the highest grade that the officer has served on AD satisfactorily. 3. AR 15-80 establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the SA. Chapter 2 (General) provides in: a. Paragraph 2-4, that a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay. Although a lower grade determination may affect an individual adversely, it is not punitive. Generally, a determination will be based on the Soldier's overall service in the grade in question, either on active duty or other service qualifying the Soldier for service/physical disability retirement, receipt of retired pay, or separation for physical disability. Circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the following – * •medical reasons (that may have been a contributing or decisive factor in a reduction in grade, misconduct, or substandard performance) * compassionate circumstances * length of time in grade * active duty service obligation * performance level (as reflected in evaluation reports) * nature and severity of misconduct, if any * the grade at which the misconduct was committed b. paragraph 2-5, that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when – * the highest grade was a result of a terminal leave promotion * reversion to a lower grade was expressly for – * prejudice or cause * owing to misconduct * caused by nonjudicial punishment pursuant to UCMJ, Article 15 * the result of the sentence of a court-martial * there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory 4. Title 10, USC, section 1370 (Commissioned officers: general rule; exceptions), provides that unless entitled to a higher retired 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 or chapter 1223 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000983 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1