ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  6 August 2020 DOCKET NUMBER:  AR20180009070 


APPLICANT REQUESTS: Correction of his record to show: 

.he was retired in the rank/grade of Brigadier General (BG)/O-7, in lieu of colonel(COL)/O-6

.placement of his General Officer Memorandum of Reprimand (GOMOR) in hisrestricted file

.a personal hearing before the Board



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 



























•DD Form 149 (Application for Correction of Military Record)•DD Form 214 (Certificate of Release or Discharge from Active Duty),dated 1 November 2010•DA Form 67-9 (Officer Evaluation Report (OER)), dated 30 April 2012•National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service, dated 6 December 2012•Distinguished Service Medal and citation, dated 2 January 2014•Permanent Orders (PO) Number 002-11, dated 2 January 2014•U.S Army Human Resources Command (HRC) letter, dated 1 August 2017•Orders Number C08-796554, dated 1 August 2017•Letter of support authored by Major General (MG) B-, dated 28 March 2018•Letter of support authored by BG S-, dated 17 April 2018•Retiree account statement, dated 1 May 2018•Self-authored letter•Medical records 



FACTS: 

1.The applicant did not file within the three-year time frame provided in Title 10, UnitedStates Code (USC), section 1552(b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states through counsel in pertinent part:
a.At the time of his retirement, the applicant had no reason to believe he would bereduced in rank.  After years of being in the Reserve "grey zone" and awaiting his first retirement paycheck, he received notice that he would be reduced to the rank of COL due to a GOMOR in his record.  The issue they are addressing focuses on the 
fact that he was never afforded the opportunity to present his case before the Army Grade Determination Review Board (AGDRB) – this entire process, as per Army Regulation (AR) 15-80 (AGDRB and Grade Determinations) was inexplicably skipped. He only became aware of the issue in August/September 2017 when he became retirement eligible and received a letter from HRC advising him that he would retire as a COL and subsequently started receiving COL retirement pay.  Facts include: 





























•the applicant served in the US Army for a total for 36 years and retired on6 December 2012, received a Distinguished Meritorious Service Medal, and entered his "grey period" to await retirement•his last job prior to retirement was a MG slot and to Command the California Army National Guard (CAARNG)•he currently serves as a Superior Court Judge in the State of •date of rank for BG is 29 October 2008•on 29 May 2012, he received a GOMOR for an improper extramarital relationship that had occurred in 2009/2010 while on leave, with an individual who was not affiliated with the US Army; the GOMOR was permanently filed•on 2 January 2014, he received the Distinguished Service Medal(7 December 2002-6 December 2012) from Secretary of the Army•at separation, his NGB Form 22 states, "5a.(Rank) BG" and "5b. (Pay Grade) BG"•because of the GOMOR, he was reduced in grade for retirement purposes to COL; however, at the time of his retirement in 2012, he received no notice that he would be retiring in a reduced rank; he also did not receive notice as is required by AR 15-80•on 1 August 2017, he received orders from HRC that his retired grade would be COL•counsel personally called the AGDRB and verified that they had norecord of his case•even if he was hypothetically notified and had never submitted any matters in mitigation, the AGDRB would still have a record of his case 



b.AR 15-80, paragraph 2-8.  Information to be considered.  The Soldier whose caseis being considered is not entitled to appear before the AGDRB.  The AGDRB may consider any evidence relevant to the grade determination regardless of whether or not the information is part of the Soldier's official military personnel file (OMPF).  Any evidence not contained in the Soldier's OMPF will be referred to the Soldier for review 
and comment, as stated in b, below, unless the Soldier has previously been provided the evidence or the Soldier is known to possess it.  Before the AGDRB may consider 







any evidence, the individual will be advised a. That his or her grade will be considered by the AGDRB. b. Of what evidence will be considered. c. 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. d. Of the right within a reasonable period of time to submit matters in writing for consideration by the AGDRB.  Thirty days from the date of notification will normally be deemed a reasonable period in which to respond.  The Deputy Assistant Secretary of the Army (Review Boards) (DASA RB) may grant requests for extensions of time to respond based upon a showing of good cause.  In cases initiated by a request from the subject individual (see para 3-2b), the applicant need not be given this notice when the only evidence to be considered is contained in the applicant's OMPF or is submitted by the applicant.  These applicants, however, have the same rights to counsel as discussed above. c. Counsel is confident that an advisory opinion request from the AGDRB will show that there is no record of the applicant's case coming before the Board.  Because he was never afforded the opportunity to be heard concerning the reduction in rank, he could submit his case to the AGDRB as an initial filing.  However, at this point and after these many years, it would be patently unfair.  With as much time as has passed, witnesses and letters of support would no longer be available to use in the AGDRB, and he would be forced to figuratively go back in time and find viable information to refute a claim which was never even brought before the Board.  The AGDRB should have been conducted when he retired not five years after his retirement.  Again, his NGB Form 22, DD Form 214 equivalent, states in box "5a. BG" and "5b. BG" at his retirement. d. The applicant is grateful for the letter from MG B-, Adjutant General for the CAARNG, Commanding, and they respectfully request that this letter be considered. Currently, California has no higher ranked officer, than MG B-.  He states in part: "Although I agree with the decision to pull the applicant from promotion to MG I would have recommended to the Vice Chief of the Army that his GOMOR not be placed in his official personnel file.  Had the Secretary of the Army consulted me, I would have most certainly recommended against reducing the applicant in rank upon retirement.  The applicant's actions were an aberration from his character and they did not affect the good order and discipline of the National Guard.  Placed in context with the whole of his career, the personal sacrifice of he and his family, and his extensive contributions to the Army as a BG, I believe that his reduction was disproportionate to the degree of his misconduct.  In my opinion, I do not believe his rank would have been reduced based on these four important facts: the extramarital relationship caused no unit impact, the person was not in his command, and his performance in the grade of 0-7, as reflected by his OERs and endorsement by BG B-, was outstanding." e. The case of U.S. versus Jonsson (2009) sheds some light on this indirectlyprejudicial question.  The aforementioned case involved a U.S. Coast Guard (USCG) boatswains mate second class who was married and had an affair with a subordinate. 
He pleaded guilty to, among other things, adultery in violation of Article 134.  Due to the fact that no one outside of the USCG knew of this affair, the Article 134 charge could not be based on the service-discrediting clause, the court noted, which left the charge hinging on the conduct prejudicial clause.  The USCG Court of Criminal Appeals said the government failed to establish a link between the admitted conduct and any effect on good order and discipline.  Only a handful of people in the boatswains mate's unit knew of the affair, meaning there was a likelihood that no detrimental reaction to the relationship could occur.  Ultimately, the court found the guilty plea to adultery to be improvident, set it aside, and dismissed the charge.  As the record states: "The record reveals another weakness in the factual basis, where the link between admitted conduct and effect on good order and discipline is not established.  During the providence inquiry, the accused, when asked if anyone at the unit knew of the encounter, replied "Only a select few, Your Honor, but eventually, yes, sir," (R. at 47).  While one might argue that an adulterous relationship between a supervisor and a subordinate would have an obvious divisive effect on the work group, such an inference would be inoperative if the rest of appellant's subordinates were unaware of the encounter, so that no detrimental reaction to the relationship could occur.  This point required further 
exploration by the military judge: who were the select few, and what, if any impacts resulted from their knowledge of the encounter?" 

f.The point of citing this case is to say no one knew of the applicant's relationshipexcept for his senior rater who only knew of the relationship well after the fact.  Therefore, the relationship had no detrimental effect on the unit, because no one from the unit was aware of the relationship.  This was truly a private matter which ended by the time it was brought before the chain of command.  Simply put, the GOMOR should not have been issued because the information presented was illegally obtained, and the "issue" (improper relationship)" had no effect on unit cohesion or morale.  What he would also like to point out is that the applicant was never removed from his job.  His last OER and his Distinguished Service Medal reflect an officer who was still hard at work at the time of his retirement. 

g.The applicant has been diagnosed with post-traumatic stress disorder (PTSD)which stems from a deployment to Iraq.  A mental health report reads, in part,  
"6 June 2006 at dusk in Iraq, driving through Sadr city toward Victory Base, Veteran was in lead vehicle, 4-5 vehicle convoy, the 2nd vehicle was hit by an Improvised Explosive Device (IED) Explosively Formed Penetrator (EFP), which went through front passenger door and out the rear left door.  Soldier inside vehicle had his legs severely injured/removed from EFP.  Had to use wrench to open the door, squad leader was unable to locate his wrench, Veteran had to retrieve his from his vehicle approximately 30 yards away, by the time they had removed injured Soldier he had died."  Though not an excuse for his behavior, it is a mitigating factor to be considered along with his distinguished career. 

3.A review of the applicant's available official records shows the following:

a.On 28 May 1982, the applicant was appointed as a Reserve commissionedofficer in the CAARNG and executed an oath of office. 

b.From 25 September 2009 to 5 August 2010, the applicant served in Iraq insupport of Operation Iraqi Freedom. 

c.On 1 November 2010, the applicant was honorably released from active duty.DD Form 214 shows in item 4a (Grade, Rate or Rank) BG. 

d.On 29 March 2012, the Vice Chief of Staff of the Army issued the applicant aGOMOR that states, in pertinent part, "I hereby reprimand you for engaging in an inappropriate sexual relationship.  On 24 February 2012, I approved Department of the Army Inspector General (DAIG) Report of Investigation (ROI) number 12-XXX.  DAIG ROI number 12-XXX substantiated that while serving on active duty as the Commander, 49th Military Police Brigade, CAARNG, you engaged in an inappropriate sexual relationship with a woman other than your wife." 

e.On 23 May 2012, by memorandum, the applicant requested the imposing officernot place the GOMOR in his OMPF.  He stated, in pertinent part, the personal stress of multiple overseas deployments greatly affected his relationship with his wife.  Instead of investing the time and effort where he should have, he made a decision to have a relationship outside of his marriage.  That choice was unwise, ill thought, and just plain wrong.  He ended that relationship, and he assured him it will not happen again.  His lapse in judgment could have ended his marriage.  He has resolved to re-engage and strengthen his marriage, and his wife has responded in kind.  Their relationship is stronger than it has been in years, and so it will remain. 

f.On 25 June 2012, the imposing official, after careful consideration of theapplicant's response to the GOMOR, directed the GOMOR be filed in his OMPF. 

g.On 6 December 2012, the applicant was honorably released from the ARNG andtransferred to the U.S. Army Reserve Control Group (Retired Reserve).  His NGB Form 22, in item 5a (Rank), shows "BG."  He was awarded or authorized: 

.Legion of Merit

.Bronze Star Medal (3rd Award)

.Meritorious Service Medal (3rd Award)

.Army Commendation Medal (4th Award)

.Army Achievement Medal

.Army Good Conduct Medal

.Army Reserve Components Achievement Medal (7th Award)


.National Defense Service Medal (2 bronze service stars)

.Humanitarian Service Medal

.Military Outstanding Volunteer Service Medal

.Armed Forces Reserve Medal (3rd Award)

.Kuwait Liberation Medal

.Army Service Ribbon

.Overseas Service Ribbon (Numeral 4)

.Southwest Asia Service Medal

.Army Reserve Component Overseas Training Ribbon (4th Award)

.Armed Forces Reserve Medal with "M" Device (3rd Award)

.Global War on Terrorism Service Medal

.Combat Action Badge

.Iraq Campaign Medal (3 bronze service stars)

.California Service Medal (5th Award)

.California State Service Medal (2nd Award)

.California Drill Attendance Ribbon (10th Award)

.California Good Conduct Medal

.California Counter Drug Service Ribbon (2nd Award)

.California Federal Service Ribbon (2nd Award)

.California Order of California

.California Commendation Medal (3rd Award)



4.The applicant provides through counsel:

a.DA Form 67-9 showing the applicant was evaluated in the rank of BG as theCommander, CAARNG. 

b.Distinguished Service Medal Certificate and citation awarded to the applicant forexceptional meritorious service in a duty of great responsibility after 36 years of service culminating as the Commander, CAARNG. 

c.PO Number 002-11, issued by HRC, which announced award of theDistinguished Service Medal to the applicant. 

d.HRC letter wherein the applicant was informed his application for retired pay wasapproved.  This letter shows his rank as COL. 

e.Orders Number C08-796554, issued by HRC, which retired the applicant in therank of COL, effective 9 September 2017. 

f. Letter of support authored by MG B- that states, in pertinent part:

(1)As the Adjutant General of the CAARNG, he appointed the applicant tocommand the CAARNG in late 2010.  At the time, the CAARNG was reeling from a scandal involving overpayment of recruiting and retention incentives.  Soldier misconduct at all levels of the organization was not being addressed and both discipline and readiness were at all-time lows in the organization.  His direction to the applicant was to restore order and increase readiness. 

(2)The applicant was the first traditional Guardsman to be appointed to whathad previously been a full-time position.  He aggressively addressed both readiness and 
discipline within the ARNG.  The processes he put in place to address both issues are still in place today.  His 34 years of experience and his five federal activations gave him the experience he was looking for.  By the time the applicant left his position in December of 2012, order had been restored and readiness was the best it had been for many years.  During his tenure, thousands of Soldiers deployed and redeployed to combat theaters.  Commanders initiated investigations of reported cases of misconduct and tracked those investigations to their conclusion.  Weapons qualification rates increased dramatically, as did other readiness indicators.  Personnel strength numbers climbed as recruiting and retention rates increased.  He was the driving force that restored the reputation of the CAARNG as a professional and ready force. 

(3)When he received word from the Department of Defense Inspector General(DODIG) that he was under investigation for an improper relationship he had engaged in while he was on leave from his last deployment, he was astonished.  The applicant had always enjoyed a well-deserved reputation for integrity.  He served as an outstanding role model for his Soldiers as a tough but compassionate leader.  He was the consummate professional Soldier.  He admonished him to end the relationship immediately and have no contact with the person with whom he had been involved.  He informed him that he had already terminated the relationship and had no further contact with her.  He had no reason to doubt his word. 

(4)He was proud of the work that the applicant did as Commander of theCAARNG during his tenure, but disappointed in his personal lapse of judgment.  His indiscretion had absolutely no effect on his outstanding performance as Commander of the CAARNG.  He has known the applicant for many years and would never have expected him to make such a grave error in judgment.  As a result of the DODIG investigation, the applicant's promotion packet to MG was pulled from consideration and was never submitted to the U.S. Senate.  Had his misconduct not been discovered and reported by a person outside of the ARNG he would have most certainly been promoted. 

g. Letter of support authored by BG S- that states:

(1)He is the former (retired) IG for California.  During the time he was the IG theapplicant served as his Chief, Deputy IG.  In September of 2010, one of his employees surreptitiously installed a software program on the applicant's state-owned Blackberry that allowed that employee to monitor peer to peer communications on the device.  This was done without his knowledge or consent and was actually contrary to California law. 

(2)When he was informed that an employee had surreptitiously intercepted theapplicant's conversation with a non-employee that was potentially inappropriate, he immediately discussed the situation with the applicant.  He readily acknowledged the communication and accepted responsibility for the inappropriate use of his Blackberry.  Although he admonished him for the nature of the communication, he intentionally took no further action because his actions violated no law or policy. 

(3)Although State employees are generally authorized to use Governmentissued equipment for Government purposes, they are also authorized to engage in "incidental communication" with their equipment.  The incidental use of State Blackberries was specifically authorized in the written policy of the IG's office due to the frequency of statewide travel often at night or on weekends, and with little or no notice.  Since the private nature of the communication had the albeit remote potential to embarrass the Office of the IG, he ordered the applicant to make no further such private use of his Blackberry.  He agreed and to his knowledge never again did so. 

(4)He brings this to the Board's attention for the sole purpose of demonstratingthe discrete and de-minimus nature of the communication.  The applicant would have no reason to believe that his peer-to-peer communication would be intercepted.  He never gave anyone the impression that he was having an inappropriate relationship.  Finally, he acknowledged that private communications were inappropriate, even though he had never violated any specific policy or regulation. 

(5)The applicant was an outstanding Chief Deputy IG who came to the IG'soffice having just been the Chief Legal Counsel for the California Department of Corrections and Rehabilitation.  He commanded great respect from everyone in his office and everyone who had contact with the Office of the IG.  He worked long hours and took great effort to balance the demands of his military work with the demands of his civilian work.  Shortly after this incident, the Governor appointed him to the bench, where he sits as a well-respected Superior Court Judge today.   

(6)The applicant's work as the Chief Deputy IG and his many contributions,which are too numerous to catalog here, cannot be overstated.  The single incident of improper use of his Blackberry pales by comparison with his overall contributions to his Office and the State of California.  Had he been consulted, he would have strongly recommended that no further action been taken against him in any forum. 

h.Retiree account statement showing his retirement rank as COL.

i.Self-authored letter that states:

(1)The Secretary of the Army in 2017 exercised his discretion to reduce his rankfrom BG to COL upon retirement based on a GOMOR from 2012.  He received no notice that the Secretary was considering reducing his rank for retirement purposes; therefore, he never had an opportunity to be heard.  He believes that if he had considered the information in this letter, he would have reached a different decision.  He would submit that notice and an opportunity to be heard are basic principles of fairness and moreover, part of AR 15-80, that merit reconsideration.  He would also like to have his 2012 GOMOR moved to his restricted file. 

(2)He joined the U.S. Army in 1976, when he was still in high school.  Heshipped off to basic combat training in 1977, upon early graduation from high school.  He had participated in the California Cadet Corps for the previous 3 years and found 
military and leadership training to be the most rewarding subject that he studied in 
school.  He was stationed at Fort Carson, CO, with the 4th Infantry Division and later in 
Germany with the 3rd Armored Division.  When he left the active Army in 1980, it was 
with the intent to attend college and return to active duty as a lieutenant.  He 
immediately joined a local National Guard unit to continue his service as a military 
policeman under the Simultaneous Membership Program.  Having served as 
the Reserve Officers' Training Corps Detachment Cadet Battalion Commander and Distinguished Military Student, he was commissioned in 1982 as a Military Police (MP) officer under the early commissioning program.  When he graduated from college in 1984 he had already begun his career as a civilian police officer, so he elected to remain in the CAARNG. 

(3)While serving as a National Guardsman, he responded to several Stateemergencies, including fires, floods and earthquakes and riots.  He attended law school at night while working as a police detective during the day and as an MP detachment 
commander on weekends.  Despite his challenging schedule, he remained engaged 
with his Soldiers and took great pride in the level of training and readiness of his 
detachment.  In 1990, he graduated from law school at the top of his class and 
transferred to the battalion operations section.  In January of 1991, he deployed with 
his unit to Operation Desert Storm.  He was awarded the Bronze Star Medal for his 
service in Iraq and Saudi Arabia. 

(4)He began working as a deputy district attorney in Sacramento, CA, and tookcommand of the 270th MP Company in 1991.  He took the unit to Korea during Team Spirit exercises and then deployed with his unit as the company commander during the 
Los Angeles riots in 1992.  The unit served with distinction and was awarded the 
Governor's Outstanding Unit Citation, one of only two units to receive the award 
that year. 

(5)He commanded the 223rd Infantry Battalion from 1998 to 2000 beforeassuming command of the 49th MP Battalion in January of 2000.  In September of 2001, he was deployed with his unit as the battalion commander to Fort Lewis, WA, for Operation Noble Eagle.  He worked hard to train and prepare his subordinate units for combat while performing the operational mission of operational security and law enforcement.  He focused on individual and team combat tasks which proved invaluable to his Soldiers during their subsequent deployments to Iraq and Afghanistan.  His active component brigade commander often referred to him as her "best battalion commander."  The unit was demobilized in May of 2001 at which time he attended the resident U.S. Army War College.  While at the War College, he wrote a paper on the Posse Comitatus Act that was published by the Strategic Studies Institute.  He was awarded the George Marshal legal writing award - the first non-Judge Advocate General officer to ever win the award. 

(6)He was working as a Deputy Cabinet Secretary for then Governor A-S- in2005 when he was called to deploy as the deputy commander of the 49th MP Brigade. While in Iraq, he was assigned to command the Police Training Team Task Force.  Their Task Force was responsible for oversight of training Iraqi police in 12 provinces throughout Iraq.  His small team was hit several times with rocket, IED, small arms and EFP strikes.  He traveled more than 12,000 miles throughout the country by highly mobile multi-purpose vehicle convoy.  In June of 2006, his small convoy was struck with an EFP that killed his noncommissioned officer in charge.  That action had a profound effect on him, and their unit.  He ignored its impact to him at the time and focused on the mission and the needs of their Soldiers. 

(7)He deployed to the San Diego fires in 2008 as the Task Force Commanderand was promoted to BG in 2008.  In 2009, he deployed back to Iraq as the 
commander of the 49th MP Brigade.  The unit served with distinction and suffered 
no killed in action during their tour.  The unit demobilized in September 2010 and he went on leave.  When he returned home the reunification with his family did not go well. He did not realize it then, but it is clear to him now that he was exhibiting self-destructive 
behavior attributable, at least in part, to the PTSD he had developed during his first 
deployment.  He was irritable, drank too much and engaged in irresponsible personal 
behavior.  He was contacted by a woman he had previously known and engaged in a 
short inappropriate relationship.  Instead of facing his issues as he should have, he sought comfort in an improper relationship.  Although no one in the military was aware of this relationship, it was nonetheless inappropriate and demonstrated terrible judgment on his part.  It is something that he will forever be ashamed of. 

(8)He returned to his civilian job as the Chief Deputy IG for CA.  He was issueda State Blackberry which, unbeknownst to him, had been fitted with a surreptitious 
software bug that intercepted peer-to-peer communication that did not go through a Government network.  This was done unlawfully and without authorization by a disgruntled subordinate at the State IG's office.  Text messages revealing his inappropriate relationship were intercepted by his subordinate and given to the IG.  After consultation with the Governor, and consideration of his entire record of service, he was verbally reprimanded and ordered to discontinue his relationship, which he had already done. 

(9)In December of 2010, he was appointed as a Superior Court Judge.  He wasalso given command of the CAARNG, a MG position.  He worked every weekend and every evening visiting subordinate units and more than 16,000 Soldiers in the CAARNG. He was submitted for promotion to MG.  At the time he was given command, the CAARNG was in the midst of a leadership crisis.  Dozens of Soldiers had received fraudulent bonuses and student loans.  Hundreds of cases of misconduct ranging from rape to theft of Government property were being ignored.  There was no way to track these cases or to hold individuals responsible for misconduct.  He initiated a system to track cases of misconduct and required subordinate commanders to report their dispositions of misconduct, much in the same way as the active component.  He 
restored credibility to their chain of command and improved readiness for State and 
Federal emergency response. 

(10)Apparently, his subordinate at the State IG's office was not satisfied with thelevel of the Governor's discipline and lodged a complaint with the DODIG.  In March of 2012 he received a GOMOR from the Vice Chief of Staff of the Army for misconduct while on leave from his 2009/2010 deployment.  His promotion packet had been submitted to the U.S. Senate at the time a DODIG investigation was initiated into allegations of misconduct.  As a result of the IG findings, his packet was pulled from consideration to promotion to MG.  He continued serving as the Army Guard Commander until December 2012.  The Adjutant General awarded him the Order of California for his service as Commander of the CAARNG and his 36 years of service to the Army.  At the time he entered his "gray period" in 2012, awaiting his retirement in 2017, he was under the impression that he was retiring as a BG.  All his paperwork at that time, reflected nothing different or put him on notice that a grade determination board would happen years later when he would receive his retirement. 

(11)Upon leaving the National Guard, he sought help from the Department ofVeterans Affairs, and he was given extensive prolonged exposure therapy to help him face the symptoms of PTSD.  Although he is no longer in therapy, the experience has given him more empathy for others and has helped him understand his uncharacteristic actions.  In January of 2014 he was awarded the Distinguished Service Medal for his 36 years of service to the Army. 

(12)In August of this year, he was notified that the Secretary of the Army hadexercised his discretion to reduce his rank to COL for retirement.  He was rather surprised because he was not informed in writing, by email, or counseled in-person that this consideration was going on and more importantly, that he was entitled to an 
opportunity to respond in writing, as to why he should be allowed to retire at his 
current rank.  He feels the Secretary of the Army did not have the benefit of knowing 
his side of the story and why he should be allowed to retire as a BG.  Understandably, if he opened his file and saw no response from him as to why he should retire as a BG, he would likely have made the same decision he did.  Anyone who does not put forth something showing they want to fight for their career and retirement does not instill confidence.  He is positive that not allowing him an opportunity to respond was not an intentional oversight but he does feel as if his case slipped through the cracks - he wants to rectify the issue.  While he understands that the purpose of this reduction is not punishment, it is important to understand that its effect is to punish him and his family for the rest of his life.  His wife, who has contributed greatly to the Army Ready Family programs, will continue to be punished for his misconduct even after his death, presuming that he predeceases her, which is statistically probable. 

(13)He would like the GOMOR removed or put into his restricted file because ithas served its purpose.  The event in question was nine years ago and he received the GOMOR 6 years ago.  It never had an effect on unit impact, unit morale or his ability to do his job at the time.  He learned a lot from the experience and it made him dig into his 
mental health issues but it will never happen again, even now, in his civilian life. 

(14)He takes full responsibility for his actions and blame only himself for hismisconduct.  He simply asks the Board and the Secretary to put his uncharacteristic actions in context with the whole of his service as a BG and his 36 years of otherwise spotless service to the Army.  He believes that his reduction to COL does not take into consideration that he was already removed from the MG promotion list while serving in a MG position.  His misconduct did not involve the military, military equipment or time. His actions, though wrong, did not affect any service member other than himself.  It was a true aberration in his conduct and character.  He has otherwise always put the needs of the Army and his Soldiers above himself at all times.  He has never mistreated a Soldier or used his position of responsibility for personal gain in any way.  Lastly, he was never given the opportunity to provide matters in extenuation and mitigation to the AGDRB. 

j.Medical records showing the applicant was diagnosed with PTSD related to thedeath of Soldier after an IED EFP attack. 

5.The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supportingdocuments and the applicant’s military records.  A review Armed Forces HealthLongitudinal Technology Application (AHLTA) & Health Artifacts Image Management
Solutions (HAIMS) indicates no duty limiting behavioral health conditions during his military service.  A review of VA’s Joint Legacy Viewer (JLV) indicates he has a service connected disability rating of 80%.  There is documentation to support a behavioral health condition at the time of his retirement.  There is no documentation to suggest he did not meet retention standards at the time of his discharge.  While it is acknowledged he has a diagnosis of PTSD, his evaluations, awards, and record of service do not indicate any occupational impairment.  The applicant’s statement indicates there was no occupational impairment in his civilian career either.  PTSD is not a mitigating factor for the misconduct that led to his GOMOR. 

5.See applicable references below.


BOARD DISCUSSION: 





1.The Board determined the available evidence is sufficient to fully and fairly considerthis case without a personal appearance by the applicant.2.The Board considered the applicant's statement, counsel's statement, supportingdocuments provided by the applicant, the evidence in his service record, and a medicalreview.a.The Board found insufficient evidence indicating the GOMOR is untrue or

unjust, and agreed that the decision to file the GOMOR in his OMPF was appropriate.  The Board determined the presence of the GOMOR in his OMPF is not in error, unjust, or inequitable. b.The Board further found insufficient evidence indicating the applicant wasdeprived of an opportunity to submit matters in writing for consideration by the AGDRB and the Secretary of the Army.  After careful consideration of all of the evidence in this case, the Board determined that a preponderance of the evidence supports the decision to place the applicant on the Retired List in the rank/grade of COL/O-6.   

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX:XXX:XXDENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The evidence presented does not demonstrate the existence of a probable error or injustice.  The applicant has not demonstrated by a preponderance of evidence that an error or injustice exists justifying relief.  Therefore, the Board determined the overallmerits 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.   


REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within 3 years after discovery of the alleged error or injustice.  Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so.

2.AR 15-80 (AGDRB and Grade Determinations):

a.Paragraph 1-7 (Secretary of the Army) states, the Secretary of the Army retainsthe prerogative to accomplish discretionary grade determinations without referral to the AGDRB.  The Secretary of the Army retains sole authority to make discretionary grade 
determinations in cases involving BG and MG's.  The Secretary of Army retains authority to take final action in any case in which a subordinate authority, including the 
AGDRB, would otherwise be authorized to take final action. 
 
 b.  Paragraph 1-10 b (DASA-RB) states the DASA-RB will make discretionary grade determinations on behalf of the Secretary of the Army for officers below the grade of BG involving service retirement, physical disability retirement, computation of retired pay, or other separation for physical disability.  The DASA-RB retains the authority to take final action in any case in which a subordinate authority, including the AGDRB, would otherwise be authorized to take final action. 
 
 c.  Paragraph 2-4 (Grade determination considerations) 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, such determinations under this regulation are 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, either on active duty or other service qualifying the Soldier for retirement or receipt of retired pay.  Circumstances pertinent to whether such service is found satisfactory include, but are not limited to, misconduct. 
 
 d.  Paragraph 2-5 (Unsatisfactory service) states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when owing to misconduct.  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.   
 
 e.  Paragraph 2-8 (Information to be considered) states the Soldier whose case is being considered is not entitled to appear before the AGDRB.  The AGDRB may consider any evidence relevant to the grade determination regardless of whether or not the information is part of the Soldier’s Army Military Human Resource Record (AMHRR).  Any evidence not contained in the Soldier’s AMHRR will be referred to the 
Soldier for review and comment, unless the Soldier has previously been provided the evidence or the Soldier is known to possess it.   
 
 f.  Paragraph 4-1 (Officer Personnel Grade Determinations) states an officer is not automatically entitled to retire in the highest grade served on active duty for regular retirement or the highest grade served for non-regular retirement.  Instead, an officer is retired in the highest grade served on active duty satisfactorily for regular retirement or the highest grade satisfactorily served for non-regular retirement, as determined by the Secretary of the Army or the Secretary’s designee. 
 
3.  Title 10, USC, section 1370 (d) (1) (Reserve Officers) states unless entitled to a different grade, or to credit for satisfactory service in a different grade, under some other provision of law, a person who is entitled to retired pay under chapter 1223 of this title, subject to subsection (b), shall, upon application under section 12731 of this title, be credited with satisfactory service in the highest grade in which that person served satisfactorily at any time in the Armed Forces, as determined by the Secretary concerned in accordance with this subsection. 
 
4.  On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Discharge Review Boards  (DRBs) and Board for Correction of Military/Naval Records  (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault; or sexual harassment.  Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences.  The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 
 
5.  AR 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  The intent of this regulation is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and, to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.   
 
 a.  Chapter 1 stipulates an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising General Court-Martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. 
 
 b.  Chapter 7 states a memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority General Court-Martial Convening Authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 of AR 600-37.   
 
 c.  Paragraph 7-2 (Policies and Standards) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 
 
6.  AR 600-8-104 (Army Military Human Resource Records Management (AMHRR)) governs the composition of the AMHRR and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board. 
 
7.  Title 10, USC, section 1552 states The Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. 
 
8.  AR 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 may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that 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. 
 
 
//NOTHING FOLLOWS//