ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

                  IN THE CASE OF:  

                  BOARD DATE:  14 March 2023

                  DOCKET NUMBER:  AR20190004742

APPLICANT REQUESTS:   Reconsideration of his previous request to

*	reverse grade determination action
*	restore his rank to General (GEN)/O-10
*	recoupment of retirement pay from date of retirement
*	removal of General Officer Memorandum of Reprimand (GOMOR) dated 12 
December 2012 from his official records

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	letter from his attorney

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number AR20160016289 on 2 May 2017.  

2.  The applicant, through his attorney, states:

	a.  The applicant requests reconsideration of the ABCMR decision in his case dated 
2 May 2017 because the Board exceeded its authority by purportedly denying a request 
to restore his retirement grade to O-10.  The Board lacked the authority to either 
approve or deny the applicant's request for restoration.  The Board failed to address 
information in a GOMOR that was proven to be false.

	b.  The applicant served his country honorably for 40 years.  He was promoted to 
GEN in 2006 and held the rank for five years.  He never engaged in malfeasance or 
unprofessional conduct throughout his military career.  He served as the first 
commander for United States Africa Command (AFRICOM).  He placed the new 
command on solid footing and the command has only gotten stronger over time.  He 
handled his responsibilities well, accomplished a tremendous amount, and laid a 
foundation that continues to underwrite the effectiveness and posture of AFRICOM 
today.  

	c.  A month prior to his retirement, the Department of Defense (DoD) Inspector 
General (IG) informed him he was under investigation.  The investigation lasted for a 
year and a half.  The Army Vice Chief of Staff issued a GOMOR to the applicant on 
12 September 2012.  The applicant responded to the GOMOR and the Army Vice Chief 
of Staff redacted the GOMOR and filed the GOMOR in the applicant's Official Military 
Personnel File (OMPF) on 9 October 2012.  

	d.  The applicant reimbursed the US Treasury $82,341.22 for instances in which the 
DoD IG concluded he had made errors with respect to the Official Representational 
Fund (ORF) and travel expenses.  The Secretary of Defense informed the applicant on 
12 November 2012 he would be retired as a Lieutenant General (LTG) O-9.  The 
applicant retired as a LTG on 31 December 2012.

	e.  The applicant submitted an ABCMR application in September 2016.  He was 
seeking restoration to his previous rank and grade effective his retirement date of 
31 December 2012, recoupment of lost retirement pay, and removal of the GOMOR 
from his OMPF.  

	f.  The application contained more than 35 letters of support and other evidence 
supporting the arguments and explanations contained in the application.  The following 
information was submitted with the application:

		(1)  The conclusions of the IG were not characteristic of the applicant.  He 
accepted full responsibility for the administrative actions and none of them rose to the 
level of warranting a demotion in grade.  The other allegations in the IG report were 
false, defied logic, and misrepresented facts and circumstances.  The IG focused his 
attention on the travel of the applicant's wife on military aircraft.  The IG did not account 
for the official nature of her travel and her positive and well-established contributions to 
military children, families, and the mission that were always the intent and focus of her 
travel.   She was promoting the interests of military children and families as components 
of readiness; something she had been doing for more than three decades.  The 
applicant relied on the advice of his legal advisors to ensure his travel decisions were 
consistent with travel guidelines.

		(2)  The IG subjectively concluded that in some instances the applicant's wife's 
travel was not "unquestionably official" and should not have been permitted.  This 
determination was made despite the fact that her travel always involved activities 
supporting military families and AFRICOM's mission.  Her itineraries included meeting 
with military family readiness officials and meeting with military child research experts 
thus enhancing readiness.  She also met with entities such as Scholastic Book 
Publishers in order to bring state of the art educational products to the military children 
in the area of responsibility of the AFRICOM Command.  To say her meetings were 
unquestionably official is incomprehensible given the importance and attention paid to 
families especially as a component of force readiness.  On those occasions the 
applicant's travel review process concluded his wife's itinerary was not unquestionably 
official, she did not travel.      

		(3)  When investigators found administrative discrepancies such as missing 
Invitational Travel Orders (ITOs) which are routinely processed and maintained by staff, 
or other administrative shortcomings, they did not give the applicant the benefit of the 
doubt.  Instead they maligned him and drew negative inferences that such 
documentation never existed.  Administrative errors and innocent inattentiveness by an 
inexperienced staff were attributed to the applicant's personal misconduct even after he 
explained the circumstances.

		(4)  Forcing the applicant to retire in a lower grade was inequitable and excessive 
compared to the treatment of his colleagues in similar and more severe circumstances.  
One O-10 was allowed to keep his 4-star rank and retirement benefits after pleading 
guilty to a felony.  Another 4-star colleague was accused of making mistakes with 
respect to his travel but was spared the indignity of retiring at a lower grade.  

		(5)  The former Joint Chiefs of Staff (JCS) Chairman was familiar with the 
applicant's duty performance in AFRICOM and supported him in his request saying the 
applicant was "an officer of the highest character who possessed and demonstrated a 
commensurate ethical ethos."   He also stated retiring the applicant in a lower grade 
might have been appropriate if he had been found guilty of "willful conspiracy or fraud" 
but that was not the case.  The JCS Chairman also stated the applicant took full 
responsibility for the administrative errors.  

		(6)  The former Chief of Staff of the Army stated the applicant should be "treated 
with the same dignity and respect with which he served and allowed to retire as GEN."  
The former Commander of USEUCOM and National Security Advisor viewed the 
applicant's demotion as "manifestly unfair, especially when one looks at the adjudication 
of far more serious recent infractions by senior members of our government, civilian and 
military alike."   One former Commander of Army Materiel Command observed the 
applicant's continued demonstration of strong support for the Department even as he 
"witnessed other senior General and Flag officers from across the Services who faced 
far more serious substantiated allegations, being allowed to retire at their current 
grade."   Another former Commander of Army Materiel Command stated the 
investigation was an attempt to undermine the applicant and his wife's outstanding 
record of service.  He trusts the injustice will not be allowed to stand.

		(7)  After the applicant received his GOMOR, the Secretary of The Army directed 
the Army Criminal Investigation Division (CID) to conduct an administrative inquiry into 
the conduct of the applicant's Personal Security Team's (PST) travel security support 
and the applicant's authorization of a hardened vehicle to transport his spouse in 
Germany.  The results of the CID inquiry contradicted with the IG's findings nullifying 
two of the bases for the reprimand and grade determination.  The CID inquiry concluded 
the security detail conducted its activities prudently and in a manner consistent with 
established precedent, regulations, policy, and doctrine.    It also concluded the 
applicant received contradictory information that led him to authorize the use of a 
hardened vehicle to transport his wife.  Despite the contradictions between the two 
investigations, the findings the applicant improperly authorized the use of a hardened 
vehicle for his wife and did not oversee the travel of his PST in a fiscally prudent 
manner remain part of the GOMOR.  

		(8)  The applicant presented evidence regarding the finding of the IG that he 
accepted unsolicited theatre tickets and meals from a prohibited source and it did not 
fall within the close personal friend category.  He received the tickets from a former 
Army enlisted Soldier who had been mentored by the applicant and enjoyed a close 
personal relationship with them for more than 10 years.  The applicant had the Soldier's 
son take care of his yard and the Soldier sought the applicant's advice throughout his 
career.  When the applicant retired, their relationship continued and they maintained an 
ongoing relationship and remained close by way of email and periodic phone 
conversations.  

		(9)  The rule prohibiting accepting gifts from prohibited sources creates an 
exception for accepting such gives from friends or those who enjoy a close personal 
relationship.  The rule is designated to avoid having situations in which a person with 
government business provides gifts to a government official for the purpose of getting 
business.  The applicant's relationship with the Soldier was personal in nature and not 
related to business.  The IG stated in their investigation, "our review of emails between 
the applicant and the Soldier revealed no evidence of discussion regarding post-
government employment."  The exception to the rule should apply in this case

		(10)  There were discrepancies in the IG investigation in that the IG did not 
interview key individuals who handled the applicant's travel and other functions of the 
staff that were a focus of the investigation.  The IG did not interview the applicant's 
executive officer or aide-de-camp who produced information documenting official travel.  
Both individuals were instrumental in establishing travel procedures for AFRICOM.  
They also identified key discrepancies between the IG investigation and their records.  
They were not interviewed so their perspectives and insights were not considered in the 
findings or unjust punishment.

		(11)  A significant portion of the information the IG relied on came from 
individuals who were biased against the application and they presented information in a 
misleading manner.  This information shaped the IG's narrative.  The IG asked the 
applicant if he knew of anyone who would be motivated to provide inaccurate or biased 
information concerning the matters under investigation.  The applicant answered "no" 
because he had always done his utmost to treat everyone with dignity and respect.  
When the applicant reviewed the redacted summaries of the investigation, it became 
clear to him key witnesses were biased against him and their bias was reflected in the 
investigation.  Two of the individuals who showed bias were the applicant's executive 
officers from AFRICOM.  The executive officers supervised travel planning and a variety 
of other staffing functions.  The IG never interviewed the Command's first AFRICOM 
executive officer even though he worked for the applicant in that role longer than the 
other two combined.  The applicant removed one of the subsequent executive officers 
from the position because of lingering war injuries for which he needed help and his lack 
of understanding of the position and overall mission.  The executive officer resented the 
applicant for removing him from the position.  He then provided the IG with inaccurate 
and biased information.  He also negatively influenced his successor after the 
applicant's departure.  This bias is addressed in a letter from the former Undersecretary 
of the Army.  

		(12)  The ABCMR decided the applicant's request on 2 May 2017 and forwarded 
him a cover letter dated 28 September 2017.  The applicant received the decision in 
October 2017.  The decision denied the applicant's requested relief.  The ABCMR's 
decision consisted of more than 28 pages.  The discussion portion of the decision 
consisted of less than two pages.  The rest of the decision, consisted of a listing of the 
DoD IG's findings, the regulations relied upon by the IG and a brief summary of the 
information the applicant provided to support his request.  

	g.  There are two key reasons the ABCMR's original decision should be 
reconsidered and overturned.  

*	the ABCMR exceeded its authority in denying the applicant's request to be 
retired as an O-10 rather than an O-9.
*	there is uncontroverted information in the GOMOR concerning the use of a 
hardened vehicle and the oversight of the applicant's PST, as described 
above, which should have resulted in the striking of those allegations from the 
GOMOR or elimination of the entire GOMOR

	h.  With respect to the applicant's request to be reinstated to the grade of O-10, the 
proper remedy would have been for the Board to forward the applicant's request to the 
Secretary of Defense, the only individual in the Department empowered to grant the 
request.  If the ABCMR was not inclined to forward the applicant's request to the 
Secretary of Defense, it could have returned the application to the applicant, with a 
statement that the requested relief was not within the ABCMR's jurisdiction.  The latter 
approach is allowed by Army Regulation 15-185 (Army Board for Correction of Military 
Records).  The ABCMR, without providing further rationale, stated, "separate from the 
determination regarding the GOMOR, the Board determined the applicant and his 
counsel did not show by a preponderance of the evidence that the Secretary of Defense 
abused his discretion when he decided the applicant should retire in the rank/grade of 
LTG/O-9."  

	i.  The applicant submitted his application to the ABCMR and made it clear in a 
cover letter from his attorney to the Director of the ABCMR he knew the Board lacked 
the authority to grant all of the requested relief.  The Board's staff was aware of this 
position because it was mentioned in the ABCMR's opinion on multiple occasions.  
Despite the Board's awareness of this, they made the decision regarding grade 
determination without ever explaining the basis for how the Board had the authority to 
make such a decision regarding an O-9 or O-10.  Only the Secretary of Defense had the 
power to retire the applicant as an O-10.  Not only does the ABCMR lack the authority 
to make a decision with respect to retirement of an O-9 or O-10, the Secretary of the 
Army also lacks the authority.  Army Regulation 15-80 (Army Grade Determination 
Review Board (AGDRB) and Grade Determination) states the Secretary of the Army 
may retire such officers in O-9 or O-10  after the Secretary of Defense certifies in writing 
to the President and Congress that the officer has served satisfactorily on active duty in 
the grade of GEN or LTG.  

	j.  In addition, the Secretary of Defense is able to grant the relief of restoration to the 
grade of O-10 as the applicant is seeking.  Department of Defense Instruction (DoDI) 
1320. 04 (Military Officer Actions Requiring Presidential, Secretary of Defense, or Under 
Secretary of Defense for Personnel and Readiness Approval or Senate Confirmation) 
stated the Secretary of Defense retains the authority to determine satisfactory or non-
satisfactory service for all officers in the grades of O-9 and O-10 who have adverse or 
reportable information that has been identified since the officer's first Senate 
confirmation to the grade in which retirement is requested.  The applicant submitted his 
request to the Board, despite the ABCMR's lack of authority, as a mechanism for 
processing his request to the Secretary of Defense for remedying the earlier unfair 
discretionary decision.  

	k.  The limitations of the BCMR were addressed in the United States Court of Appeal 
for the Federal Circuit case of.  An Air Force General applied to the Air Force BCMR 
and requested to be retired as an O-8 because the time for delaying a promotion had 
expired when the President took action to remove his name from the promotion list.  
The Air Force BCMR ruled in the General's favor and took action to authorize his 
promotion; however, the DoD General Counsel disagreed and took the position that 
only the Secretary of Defense or the President could authorize such a promotion.  The 
Secretary of the Air Force changed its position and the General sued to enforce the 
Board's original decision.  The Federal Circuit decided the Board could not legally 
correct the General's records.  He had not been appointed to O-8 and only the 
President could do so.  Since the President had not taken that action, the Board did not 
have the power to do so.  The facts in that case are different then the applicant's; 
however, the principle is the same.  The Board cannot decide a matter which is beyond 
its power to decide.  When the ABCMR decided a matter for which it had no authority to 
make a decision, it acted contrary to law and regulation; therefore, the ABCMR should 
vacate its decision as it pertains to the applicant's retirement grade.  

	l.  The ABCMR exceeded its authority by making a decision regarding whether the 
applicant should be reinstated to the rank and grade of GEN/O-10 and retired in that 
grade.  The Board could have granted the applicant's request to forward his application 
to the Secretary of Defense as he requested or it could have returned the application to 
the applicant.  Instead, the Board ignored the fact that information contained in the 
applicant's GOMOR has been proven to be untrue.  The Board should have either 
removed the disproven information (concerning the hardened vehicle and conduct of the 
applicant's PST) or removed the GOMOR entirely.  The Board did neither.  It is in the 
interest of justice to reconsider and overturn the ABCMR's decision.     

3.  The applicant, through his attorney, sent a letter to the Under Secretary of the Army 
on 28 September 2016 stating:

*	he is providing the Under Secretary of the Army the packet the applicant 
submitted to the ABCMR
*	the applicant was seeking restoration of his rank and grade as GEN/O-10 
effective 31 December 2012 and recoupment of lost pay since that time
*	he is asking for removal of the GOMOR from his official military records
*	the applicant's case is unique because only the Secretary of Defense has the 
power to retire him in the grade of O-10
*	it was unclear how the matter would be processed 
*	the attorney wrote to the Director of Army Review Boards requesting special 
handling of the applicant's application
*	he sent the packet to the Under Secretary of the Army for situational 
awareness  

4.  The applicant's attorney sent a letter dated 28 September 2016 to the Deputy 
Assistant Secretary of the Army (DASA) (Review Boards) which states:

*	the applicant is seeking restoration of his rank and grade as a GEN/(O-10) 
effective 31 December 2012
*	recoupment of lost pay since that time
*	removal of the GOMOR from his official military records
*	he was writing to the DASA to request special handling of the applicant's 
application
*	he's making the request because despite the expansive powers given to the 
ABCMR by Congress only the Secretary of Defense has the power to act on the 
applicant's request
*	the Secretary of Defense retains the authority to determine satisfactory or non-
satisfactory service for all officers in the grades of O-9 and O-109 who have 
adverse or reportable information since the officer's first Senate confirmation to 
the grade in which retirement is requested
*	the former Secretary of Defense retired the applicant in the grade of O-9 and 
only the Secretary of Defense can grant the relief of restoration requested
*	the applicant submitted the request to the ABCMR because he was unaware of 
a mechanism for processing this type of request in the Office of the Secretary of 
Defense
*	he also submitted the request to the ABCMR because the Secretary of the Army 
has the power to submit a recommendation to the Secretary of Defense and the 
Board is in a position to facilitate processing the action.  

5.  The Board should refer to the applicant's submitted evidence for AR20160016289 to 
render a decision in this case.  The applicant provided a letter to the Secretary of 
Defense with his application dated 26 September 2016 which states:

	a.  He is requesting reversal of the grade determination action taken in November 
2012 that retired him as a LTG, restoration of his rank and grade as GEN effective 
31 December 2012 the date of his retirement, recoupment of lost pay since that time, 
and removal of the GOMOR from his official records.

	b.  He proudly served his country with honor and distinction for over 40 years.  He 
was nominated and confirmed as a GEN in 2006 and held the rank for five years.  He 
never engaged in malfeasance or unprofessional conduct.  His actions were never 
inspired by a desire for personal gain.  His service as the first AFRICOM Commander 
was the highlight of his career.  Despite opposition and distrust domestically, the 
Command's beginnings were solid and its stance only got stronger.  He handled his 
responsibility well, accomplished a tremendous amount, and laid a foundation that 
continues to underwrite the effectiveness and posture of the Command today.  For 
much of his tour at AFRICOM, he was the military's only black 4-star general and he 
willingly took on many tasks and engagements to support the Army's and DoD's 
diversity goals.  He was restricted from discussing his case with anyone; however, 
others with an agenda to destroy him did discuss his case including in the undisciplined 
social media courtroom.  As such the punishment he received has threatened the trust 
in the US Military by substantial segments.  He's always taken responsibility for 
administrative miscues and other issues the DoD IG investigation identified.  He 
reimbursed the US government for instances in which the former Secretary of the Army 
directed repayment.  The grade determination unfairly characterized his service as an 
O-10 and as a combatant commander.  It levied a lifetime financial sanction and did not 
accurately characterize his actions and his intent.  For those reasons he is asking for 
restoration of his rank, back pay from the date of his retirement, removal of the GOMOR 
from his official records, and to allow him to retire as an O-10.

	c.  He was tasked with standing up AFRICOM which was a highly publicized and 
politically controversial command.  He had no relevant template to set up the command 
and limited resources.  Despite having minimal personnel, he was given an immediate 
mission of regional responsibility of 53 African nations with no or minimal sustained prior 
US military presence.  The environment on the African continent was unsettled 
throughout the period of his command.  During his tenure, they paid a great deal of 
attention to their military-to-military programs.  

	d.  He relinquished his command of AFRICOM in April of 2011.  Just prior to his 
scheduled retirement in May 2011, the DoD IG informed him he was under 
investigation.  He was instructed not to contact anyone with knowledge of the 
circumstances surrounding the investigation.  He followed those instructions and was 
interviewed by the IG investigators on two occasions in August 2011.  The report of 
investigation was not issued until June 2012.  The investigation lasted for nearly a year 
and a half.  He was issued a GOMOR by the Army Vice Chief of Staff on 12 September 
2012.  The applicant responded to the GOMOR and the GOMOR was finalized and filed 
in his OMPF.  He was notified he would retire in the rank of LTG on 12 November 2012.  
He retired on 31 December 2012.  The saga subjected his wife and himself significant 
emotional, physical, and financial strain and hardship.  The grade determination 
continues to unfairly impugn his character and negatively characterize his service and 
career accomplishments.       

	e.  Several of the IG's findings and conclusions were not characteristic of the 
applicant.  Aside from the actions he accepted responsibility for, none of which rise to a 
level of demotion, the allegations are false, defy logic, and misrepresent facts and 
circumstances.  He provided letters in support of his request by people who knew he 
diligently performed his duties and rarely took any personal time off.  The IG focused a 
great deal of time on the travel of his wife on military aircraft.  They failed to account for 
the official nature of her travel and her positive contributions to military children and 
families that were the primary focus of her travel.

	f.  The applicant is convinced some of the key allegations in the investigation were 
the product of a report that was tainted by information deliberately biased and 
inaccurate.   The way this information was portrayed in the investigation led to a false 
characterization of his served and resulted in a report that lacks objectivity and reads 
more like a one-sided advocacy document.  When the investigation found administrative 
discrepancies, like missing ITOs, instead of giving the applicant the benefit of the doubt 
the investigation maligned him and drew negative inferences that the documents never 
existed.  Administrative errors and innocent inattentiveness by his inexperienced staff 
were attributed to his personal misconduct.  

	g.  The applicant found it inconceivable that he was treated in this manner, 
especially when other General and Flag officers were excused for far more serious 
missteps and allowed to fully retire.  Individuals who wrote letters of support opined the 
punishment he received was biased in the sense that it was out of proportion to how 
other cases have been handled.  An author of one such letter of support stated the 
applicant should be treated with the same dignity and respect with which he served and 
be allowed to retire in the rank of GEN.  Another author viewed the applicant's demotion 
as manifestly unfair, especially when on looks at the adjudication of far more serious 
recent infractions by senior members of our government, civilian and military alike.

	h.  He is not submitting his application in an effort to point fingers at others or to 
evade responsibility.  That is inconsistent with who he is.  He humbly submits that the 
lifetime stigma and financial penalty of the demotion on top of the reprimand and the 
repayment of the assessed debt is excessive and unjust.  This is particularly true when 
he has always acted in good faith and never for personal gain.  He committed no crime.  
He did not engage in immoral activities.  He caused no embarrassment to the uniform.  
He did not violate any trust or compromise his integrity.  He was punished as no other.  
He acted in good faith and trusted his staff to do their jobs and handle administrative 
processes.  For those reasons he requests the officer grade determination be reversed 
and the mitigation of the other adverse actions taken against him.  

	i.  Many things came to light in support of the reversal of the grade determination.  
After his retirement CID conducted an inquiry that contradicted the IG's findings 
regarding the conduct of his PST and the authorization of a hardened vehicle to 
transport his wife.  The IG failed to interview key personnel with knowledge of his travel 
practices and other matters that were the focus of the investigation.  The IG relied on 
information from biased individuals.  Senior officer cases involving far more serious 
conduct have been handled in a manner that did not involve demotion.  

		(1)  The results of the CID investigation contradicted the IG's findings and 
nullified two of the basis for the reprimand and grade determination.  The investigation 
concluded the PST conducted its activities in a manner consistent with regulations, 
policy, and doctrine.  It also concluded he received contradictory information that led 
him to authorize the continued use of a hardened vehicle to transport his wife.  This was 
a practice that was followed by his predecessors and he inherited.  

		(2)  The IG failed to interview key individuals who handled his travel and other 
staffing functions which were the focus of the IG report.  Letters from his first executive 
officer and his aide-de-camp verify this.  Neither of these officers were interviewed by 
the IG despite the fact that they both had intimate knowledge of his travel practices.  His 
executive officer had information to show the IG was mistaken regarding some of the 
travel details for which he was censured.  

		(3)  The lack of favorable information was magnified by those who were biased 
against him and presented information in a misleading manner.  The biased information 
shaped the IG's narrative.  When the applicant was initially interviewed, he was asked if 
he knew of anyone who would be motivated to provide inaccurate or biased information 
to which he answered no.  He had done his utmost to treat everyone with dignity and 
respect.  After reviewing the redacted summaries of the interviews, it was clear some 
key witnesses were biased against him and their bias was reflected in the report.  Two 
of the individuals were his executive officers who worked for him at AFRICOM.  Those 
executive officers supervised travel planning and other staffing functions.  The applicant 
finds it ironic the IG never interviewed his first executive officer even though he worked 
for the applicant for a longer period of time then the other two executive officers 
combined.  The applicant had to remove one of the executive officers due to war injuries 
and his lack of understanding of the position.  That executive officer resented being 
removed from the position.

		(4)  Other senior officer cases involving proven misconduct of far greater 
magnitude have been adjudicated and the Department found ways of striking a balance 
between accountability and past accomplishments and did not result in grade reduction.  
As a general officer said in a letter of support, the lifetime penalty of retirement in a 
lower grade that was applied to the applicant is manifestly unfair especially when one 
looks at the adjudication of far more serious recent infractions by senior members of the 
government, civilian and military alike.  

	j.  The applicant provided the Board with an updated response to the allegations that 
served as the basis for the GOMOR and the rationale for the grade determination.  He's 
also provided more than 30 letters of support from individuals in a range of duties and 
perspectives, some of whom have direct knowledge of the investigation and have 
known the applicant for years.  Others who wrote letters were present, with direct 
knowledge, during the trips in which the applicant was accused of misconduct.  All of 
the authors speak favorably of the applicant's character and manner of performance 
and the way he represented our great nation.  Administrative missteps are not 
misconduct.  He's always acted in good faith and never for personal gain.  He did not 
commit any crimes, did not engage in immoral activities, or make any disparaging 
remarks.  He caused no embarrassment to the uniform or to his office.  He did not 
violate any trust or compromise his integrity.  He represented his Nation with honor, 
worked to help DoD achieve its diversity goals, effectively contributed to the national 
security of the United States, created effective relationships with interagency partners, 
and worked to cause AFRICOM to become a joint assignment of choice.  He did his 
utmost to serve with honor and knows that he did so.  He's asks the Secretary of 
Defense for his favorable consideration and correction of the injustices levied upon the 
applicant's character, his service, and himself.      

6.  The applicant makes reference to a CID investigation that contradicts the IG's 
investigation.  The applicant's record is void of, and the applicant did not provide the 
CID investigation for consideration by the Board.  He also makes reference to an email 
authorizing the use of hardened vehicles for his wife, the applicant's record is void of 
and the applicant did not provide a copy of that email for consideration by the Board.
  

7.  The applicant received a redacted GOMOR on 12 September 2012.  It was filed in 
the applicant's official military file on 9 October 2012 by the United States Army Vice 
Chief of Staff.  The GOMOR stated:

*	the applicant was reprimanded for engaging in misconduct related to travel 
*	the misuse of military aircraft 
*	authorizing his spouse to use a hardened government vehicle
*	misusing ORF
*	misusing his position while serving as the Commander, AFRICOM
*	accepting gifts based on his position and not a valid personal friendship 

8.  The applicant provided his rebuttal, dated 3 October 2012, to the GOMOR.  The 
rebuttal stated, in part:

	a.  He requested the GOMOR be modified to more accurately reflect his mistakes as 
Commander of AFRICOM. The IG report did not consider in many of its findings the 
context or analysis of all pertinent facts. The report combined what he acknowledged to 
be his oversights and mistakes with picayune issues that exaggerate out of proportion 
his mistakes. He responded to the IG report but in many respects his response was 
ignored by the IG. He also requested the GOMOR be filed locally.

	b.  He served his country in uniform for 40 years. He believed his service had been 
honorable and never had he acted to receive personal gain. Much of his service was at 
great personal sacrifice, including to his health. He had no regrets but was deeply 
troubled because the investigation and its release had created a public image in the 
eyes of some that unfairly damaged his reputation and disgraced his family.

	c.  His wife also served our country for decades in her role as a military spouse. She 
served with distinction and honor. Her primary motive was to make the situation better 
for the military families and especially the children. Her efforts in AFRICOM produced 
concrete and tangible benefits to military dependents and to the children of the African 
continent. Her service came at great personal sacrifice and the attacks on her character 
by anonymous witnesses were the most troubling aspect of the IG investigation.

	d.  The applicant states he is not without fault. He made mistakes in his career. He 
takes full responsibility for his shortcomings and would provide restitution where it was 
deemed appropriate. He disagreed with the investigation's characterization he extended 
temporary duty (TDY) trips seven times for personal reasons. He did not understand 
where the evidence could lead someone to that conclusion. AFRICOM reached Full 
Operational Capability in October of 2008. For the remainder of 2008 and through 2009 
they resided in temporary spaces, lacked basic equipment, and were constantly 
disrupted by moves. There were frequent operations shutdowns in 2010 because of 
security requirements related to building renovations and nearby construction.  
AFRICOM Headquarters began to approach a sense of normal operations within 6 
months of his departure from command. These conditions were not conducive to good 
record keeping and administrative discipline

	e.  He began to build room in his itineraries for the frequent trips to Capitol Hill, the 
Pentagon, and the Interagency for requests for opportunity meetings.  Several of his 
planned trips were not appropriate for recording on itineraries such as promotion boards 
and high level classified meetings at federal agencies with African Interests.  
Regardless of his location, he constantly worked long hours and never extended TY for 
personal reasons.  He realized he was responsible for the poor record keeping and was 
prepared to reimburse government as funds where deemed appropriate.

	f.  He fully accepted responsibility for not using his government travel card.  He 
offered remarks in mitigation to the investigation but realizes the failure on his part.  His 
response to the IG investigation addressed the quality of the investigation to that point 
and suggested leads to pursue to assure a thorough, objective review of the facts.  He 
did not address his own accountability for matters, which he acknowledge in detail in his 
response to the GOMOR.

	g.  He understood the letter openers and command coins were purchased with ORF 
(official representation funds).  He learned after the fact the purchases were made with 
ORF funds and recognized in hindsight that ORF were misused in many instances.  He 
was fully responsible for the misuse.  He should have managed the funds more carefully 
given the limited availability of them and strict criteria for their use.  He should and 
would reimburse the government for the misuse.   

	h.  He disagreed with the representation that 15 military aircraft flights that included 
his wife were not for official purposes or did not provide an unquestionably positive 
public relations or diplomatic benefit to the United States.  His wife worked tirelessly on 
behalf of military and African families.  If she did not have an official purpose, she did 
not travel.  He failed in not properly supervising his staff and verifying the proper 
documentation for the flights was executed and maintained.  Regardless of the real and 
tangible benefit to military and African families and to the United States national 
interests, the perception created by his failure as the commander was unacceptable and 
he would reimburse the costs of those flights.  

	i.  He was also responsible for the costs for times he was reimbursed in excess of 
per diem without documented justification and authorization.  He was responsible for 
failing to supervise his subordinates properly in providing documentation.  He believed 
reimbursement in each case would have been appropriate if they had followed 
procedures to document their decision making.  Because they did not he should and 
would reimburse the government for the overpayment. 

	j.  The investigation implied the primary purpose for his trip to in July 2010 was for 
personal leisure and that his business with Ms. was a pretext for the trip.  This is not 
true.  This is one example of the assumptions made by the IG and where the 
investigation pays short shrift to context to the point of implying lack of good faith 
without facts that support an inference of personal motive.  The fact that Ms. had a long 
and storied relationship with the DoD and the fact she co-authored the "Be Know and 
Do" doctrine with GEN (Retired) was missing.  Her organization's involvement with 
senior government officials had been both pervasive and mutually beneficial for 
decades.  His visit to her institution followed her visit to Germany to discuss leadership 
issues.  Her visit was followed by the Eighth Annual Investment in America Forum which 
was attended by US Cabinet and Department level Secretaries, ten Army generals, and 
ten Social Sector CEOS.  The Investigation discounted his meeting with Ms. however, 
the Leader to Leader Institute lauded he and his wife's contributions at the formal 
roundtable dialogue on leadership.  Ms. multi-decade relationship with top leaders was 
missed by the investigators or ignored in their findings.  If his characterization of the trip 
as official was mistaken, he would reimburse the cost of the trip.

	k.  The investigation also implied events in were for leisure.  Those events were an 
afterthought on the part of the applicant, but they were highly productive and beneficial.  
His discussions with and centered around the Fisher House activities and programs to 
benefit deployed and wounded Soldiers and their families.  However, those discussions 
were not the purpose of the trip.  They added official value to an official trip that was 
important to and of benefit to the DoD.

	l.  The investigation questioned a trip of the applicant to Atlanta.  Though the IG 
pointed to emails that suggested it was official, the applicant also believes the trip was 
official in nature.  The applicant had a standing and well known interest in visiting with 
Forces Command (FORSCOM) about forces for AFRICOM.  His concern was long-
standing due to the lack of identified forces for Africa because of troop requirements for 
deployment.  His concerns became more urgent one month prior to his trip when he 
attended a Four Star conference and the Army Chief of Staff announced because of 
pending deployment drawdown, units would be identified and made available for theater 
engagement missions in AFRICOM.  The announcement made it imperative the 
applicant coordinate directly with FORSCOM leadership as a predicate for the 
respective staffs to commence detailed planning.

	m.  The applicant believes his attendance at the Trumpet Awards was appropriate 
official business.  Throughout his service as a General Officer, he was strongly 
encouraged by the Army, especially the Accessions Command, to hold himself out 
publicly as an example of the Army's success story on diversity.  As a prior recipient and 
honored guest at the 2011 Trumpet Awards, he was presented with the opportunity to 
do what the Army asked of him. and he was also able to promote AFRICOM.  The trip 
was what he perceived to be his duty as a very public military figure.

	n. He accepted the criticism for not effectively overseeing his PST travel and 
operations to ensure they were fiscally prudent in all actions.  He would note that he had 
one of the learner PSTs for similarly situated officials.  He would also note the 
investigation dd not correctly describe his PSTs travel and operations.  The 
investigation noted a PST member was in for 49 days when the applicant was only in 
the area for 18 days.  The investigation did not consider the circumstances surrounding 
the member's stay in.  He conducted advances and was snowed in for many days 
during one of the worst snowstorms in history.   The applicant understands the member 
took leave during this period and two PST members graduated from advanced training 
in in June of 2010 and were diverted to the mission with the rationale that an extra day 
of TDY was more prudent fiscally than flying to only to return on the very next flight back 
to the US.

	o.  The applicant also provided the investigators with doctrinal information regarding 
the proper conduct of PST operations.  The Investigation largely ignored this and 
ignored the documented threats to him and his family.     

	p.  The applicant should have taken several steps to prevent many of the missteps.  
He should have monitored his staff's responsibilities and performance more closely.  He 
should have personally recorded his daily activities and it may have prevented 
anonymous complaints.  He should have been more vigilant in stopping loyal, willing 
subordinates from extending personal favors, and could have redoubled his efforts to 
instill a more fiscally disciplined command climate.  He should have ensured proper 
completion and maintenance of records.  He realizes he could have done more as the 
commander.  He understands fully that as the commander he was and is ultimately 
responsible for everyone and everything that occurred in his command.  He offered his 
sincerest apologies to the nation, the DoD, the Department of the Army, and those 
service members who served with him.    

	q.  The applicant takes full responsibility as the commander.  He notes the 
investigation nowhere accounted for the growing pains that accompany any completely 
new combatant command.  A new organization that lacks any processes or experienced 
personnel creates extenuating circumstances which help account for many of the 
technical errors.  He should have managed the command more closely to minimize the 
mistakes experienced.  He would have hoped the investigation findings had given the 
command the benefit of context, of the magnitude of many of the tasks at hand, of 
existence of established precedent, of mission impact, of good faith intent, and of the 
myriad quasi-diplomatic challenges that often required improvisation that doesn't always 
work smoothly when viewed through the prism of hindsight.  He tried to reconstruct 
some of the context with his interviews with the investigators.  He also provided a 19 
page response to the interim report that addressed concerns raised.  He provided many 
clear and tangible investigative leads that are nowhere reflected in the final report.  The 
outcome reflected in the interim report wasn't tempered with a thorough investigation of 
facts and circumstances.    The investigation did not address the public threats made 
against the applicant and his family by a terrorist organization.  

	r.  The investigation did not account for the applicant being directed to be 
responsible for the first newly established overseas combatant command in decades.  
The command had no inherited processes and was viewed skeptically by leaders on 
three continents and the US interagency.      

	s.  The investigation did not note the applicant rarely took time off, working himself to 
exhaustion whether in Europe, Africa, or the US.  Instead investigators characterized 
the bulk of his command time as leisure and personal.  He spent nearly every waking 
hour either working on AFRICOM business or promoting the DoD and Army's stated 
goals.  

	t.  Numerous personnel with relevant information were never interviewed.  Known 
and public threats by terrorist organizations to his family were ignored.  A DoD General 
Counsel legal opinion was ignored.  The confusion within DoD over programs such as 
the use of hardened cars was ignored as was established doctrine.       

	u.  Throughout his command he relied on and trusted his staff to provide sound, 
professional advice and to perform their duties as consummate professionals so he 
could focus on command, global, strategic, and operational issues.  He acted under the 
assumption that validated processes were in place to do things correctly and legally.  
He did his utmost to perform his duties with honor and integrity.  He never acted out of 
self-interest, but always with a goal of accomplishing a difficult mission, the well-being of 
his teammates, and bringing credit upon the institutions of the DoD and interagency 
partners.  His mistakes were never for self-aggrandizement.         

	v.  He served every day for 40 years with the motivation to do his best at whatever 
was asked of him and his family.  He did so with pride and humility.  Though he sought 
perfection, he made mistakes.  He hopes the personal sacrifices made offsets those 
mistakes.  He believes anyone who knows him knows that he is anything but self-
serving.  He believes his career culminated in a command whose actions have been 
acclaimed as successful, on target, honorable, and genuinely appreciated.  Since his 
1971 Commission there had never been any incident of public embarrassment or 
discredit.  His record was without blemish prior to the investigation and the leaked pre-
decision to the press.  His record is not tarnished irreparably.  He believes a more 
objective and balanced wording of a reprimand could ameliorate the tarnish.  

	w.  Apart from reimbursement of government funds and his sincerest apologies, all 
he has left to offer is his career and reputation.  He asks that who and what he has been 
for over 40 years as a leader and commander be allowed to offset any misplaced belief 
any of his actions have been motivated by personal gain.  

	x.  He sincerely apologized for his mistakes and shortcomings.  It was painful to ask 
for an objective consideration as to what is fair in the wording of a reprimand after 40 
years in uniform.  

9.  The applicant received a letter from the Secretary of Defense dated 12 November 
2012 which states:

*	he has determined to retire the applicant in the grade of LTG
*	he cannot certify the applicant served satisfactorily in the grade of GEN
*	the IG substantiated numerous serious acts of misconduct by the applicant 
*	he regrets having to take the action but believe he must in these circumstances

 10.  The applicant provided an updated response to the allegations in the GOMOR 
dated 20 September 2016 which states in part:

	a.  He provided the updated response because new information came to light with 
respect to some of the allegations.  Several of the allegations that were the basis of the 
GOMOR and presumably the grade determination should have been unsubstantiated 
based on all available information.  He set out the allegations he was reprimanded for 
and provided his updated responses.

	b.  Expending appropriated funds on travel in July 210 when the primary purpose of 
the trip appears to have been unofficial, without the permission of the Secretary of 
Defense.

		(1)  He disagrees with the characterization.  The primary purpose of the trip was 
to meet with Ms. President and CEO of the Leadership Institute and her staff to discuss 
the Leader to Leader program.  He saw the trip as a strategic engagement that would 
be helpful in furthering AFRICOM's outreach objectives.  If and staff were not available 
for the meeting, the trip would not have occurred.  Part of his duties in AFRICOM 
involved engaging in strategic outreach, as a result he went to to meet with.  The trip led 
to the publication of an article in the Fall 2010 edition of Leader to Leader Magazine.  

		(2)  His wife, on her own official itinerary, participated in the meeting because 
and her staff were interested in the command's impact on families and women on the 
African continent.  His wife was also in conversation with several based organizations 
who were providing well-being benefits to military children and families.  She met with 
the Sesame Street Foundation to bring their programs for military children to Europe 
and Africa.  She also met with Scholastic Publishers to get books to Africa in French, 
Arabic, and English.  

		(3)  The IG concluded the trip was personal because, the applicant accepted 
meals and tickets to a play that were paid for by his friend Mr..  His interactions with Mr. 
was not the primary purpose of the trip.  He and his wife would not have been in New 
York City if it not had been for the Leader to Leader meeting.  The IG concluded the trip 
was personal and was motivated by the applicant's desire to interact with or to attend a 
play.  This conclusion needlessly impugned the applicant's integrity and there was no 
reason for them to have done so.  Even though he disagreed with the IG's conclusion, 
the applicant reimbursed the government for the trip.

	c.  Expended appropriated funds on round-trip travel in January 2011 from when the 
primary purpose was person.

		(1)  He disagrees with this characterization.  However, when he was asked to 
reimburse the US government for the cost of the trip, he did so.  The purpose of the trip 
was to meet with the Commander of FORSCOM; however, at the last minute the 
commander could not meet with him, so he met with the deputy commander.  He had a 
desire to have a discussion with the FORSCOM commander about force generation for 
AFRICOM.  Though he tried to coordinate the meeting with other travels to Atlanta, his 
schedule did not align with the FORSCOM commander's.  When the FORSCOM 
commander's schedule changed on this occasion, he decided to continue with the trip 
and to meet with the deputy commander since the trip was occurring within three 
months of the end of his command.  He did not want to leave the issue unaddressed for 
his successor.  

		(2)  He also attended the Trumpet Award program while on the trip.  He was 
under the impression he was cleared to attend the even in an official capacity due to the 
event's potential to promote DoD's diversity goals.  He had been honored at the event 
the year prior and was invited as a guest in 2011.  He was interviewed by several media 
outlets and took advantage of the opportunities to promote the Army's messages 
regarding diversity, opportunity, and requirements.  He furthered the DoD's messages 
about AFRICOM's purposes.  His legal staff informed him if his wife attended the 
Trumpet Awards, she would need to do so in a personal capacity.   Months later when 
he was interviewed by the IG, he learned his Staff Judge Advocate had given a legal 
opinion since he wasn't receiving an award, his attendance at the event was personal 
rather than official.  He also learned, members of his staff inquired into the feasibility of 
obtaining the Secretary of Defense's approval for him to use military aircraft to travel to 
the awards for personal purposes.  He never instructed his staff members to make the 
inquiry.  Throughout his career, he sought to avoid the appearance of impropriety and 
relied upon the legal advice he received.  He was aware his legal staff concluded if his 
wife were to attend the awards, she would need to do so in her personal capacity.  She 
did not travel that leg of the trip with him.  

		(3)  He would not have invented a reason to attend an event his lawyer opined 
was not official.  As one of the authors of his letters of support stated, the applicant was 
known as someone who operated within the lines and the author never had a reason 
not to completely trust the applicant.  A member of his AFRICOM staff who assisted 
with travel matters stated she never knew the applicant to contradict advice from his 
executive officer or legal staff.  The applicant went to Atlanta for the FORSCOM 
meeting and the Trumpet Awards was an ad-on.  It wasn't as portrayed by a disgruntled 
staff member.

	d.  Extending the length of TDY trips seven times for apparently personal reasons, 
yet received per diem reimbursement for the extra days.

	(1)  He takes exception to this finding.  However, he reimbursed the government.  
Early in his command when he traveled to the US, he missed opportunities to conduct 
follow-up coordination in the Pentagon with the Intelligence Community and interagency 
partners because he lacked flexibility in his schedule.  He often had no other option but 
to return as scheduled and miss opportunities for discussion and meetings.  He was 
deluged with requests for his time from many governmental agencies, the media, and 
many private organization considered partners or influencers.      

		(2)  He and his staff learned building flexibility into his schedule allowed him to 
take advantage of numerous, short notice opportunities.  His former aide-de-camp 
stated, the fluid nature of scheduling office calls, particularly with the Secretary of 
Defense and the Chairman of the Joint Chiefs of Staff, with limited time, forced several 
instances of rescheduling.  It happened often enough the front office discussed courses 
of action to mitigate the lost opportunities.  

		(3)  Members of AFRICOM's Washington Liaison Office spoke to the fact the 
applicant was extremely busy with official duties while in Washington.  His schedule was 
filled during his trips to the area.  He worked tirelessly in attending planned and 
unplanned meetings of opportunity.  Every moment of his time in the National Capital 
region was put to good use.  Almost every one of his visits to the US included a myriad 
of meetings with governmental agencies.  Schedules were often made with space to 
support mandatory but opportunistic add-ons.  

		(4) It was not possible for pre-travel itineraries to capture all of the meetings of 
opportunity and there were gaps in documentation.  The applicant's aid-de-cam- was 
intimately involved in the planning and execution of his travel.  The IG investigators did 
not interview him.  In his letter of support, the aid-de-camp stated he did not recall a 
single trip executed according to plan where the electronic record would provide the 
executed itinerary.  This is because the applicant participated in promotion boards and 
other activities which would have been inappropriate to add to his office itinerary.  What 
appeared on his itinerary as unscheduled time was usually an integral and critical piece 
of his activities.  He never extended the length of a trip for personal reasons and then 
claimed and received benefits.  Members of his staff may have failed to properly 
memorialize changes to his schedule after changes occurred.   

	e.  Failing to use a Government Charge Card.  The GOMOR is correct, the applicant 
did not have or use a government charge card.  When he had a government charge 
card, at one point, he had difficulty using it.  His government card was declined while 
traveling overseas and he used his personal card.  He never replaced the government 
card.  This was not to achieve some special advantage and he met all of his financial 
obligations.  The requirement to use a government charge card was never brought to 
his attention as an issue.   When the requirement came into effect, he was on 
assignment with a direct mission reporting to the Secretary of State and was not 
apprised of the requirement.  

	f.  Permitting his spouse to accompany him on 15 military air flights for purposes that 
were not unquestionably official or for which evidence did not reflect a diplomatic or 
public relations benefit to the United States.

		(1)  He takes strong exception to this allegation.  He made it a priority to forge 
domestic and overseas partnerships, establish constituencies and institute family 
member well-being programs into the AFRICOM Command.  His wife had been a 
champion of military families and children.  She was a major partner in their efforts with 
respect to family members and well-being programs.  He ensured there was an 
unquestionably official purpose bringing substantial diplomatic, public relations, and/or 
well-being benefit to the command for every trip his wife accompanied him in an official 
capacity.  He was surprised to learn from the investigation some of the documentation 
for his wife's travel was inadequate.  ITOs were missing or were accomplished after the 
travel had occurred.  He relied on his staff to handle these administrative requirements 
and had no prior indication the documentation to support the travel was not present.  
Every trip his wife took had an official purpose of the objectives and mission of the 
Command and DoD.      

		(2)  Despite the characterization by the IG, positive results flowed from his wife's 
efforts both in Africa and Europe, which attests to the official nature and diplomatic and 
public relations benefit of her travel.  He is astonished the IG disregarded the 
contributions of his wife and ignored the attention and emphasis being placed on 
families and well-being programs in the military by all.  

		(3)  When his wife accompanied him, it was for official purposes and she had a 
full itinerary to benefit the United States.  When, as a result of staffing or his 
independent judgment it was determined that no official reason was present for her to 
travel, she did not travel.  The IG report indicated on every instance in which his wife 
accompanied him it was because he had determined such travel was in an official 
capacity.  That is not the case.  Travel regulations required him to reimburse the 
government if his wife accompanied him in an unofficial capacity.

		(4)  The notion his wife's travel did not serve the interest of the United States is 
inaccurate.  Her efforts added to mission accomplishment, enhanced positive US 
perceptions, and contributed to the well-being of our families.  This contributed to 
turning around several initial negative impressions of the command into it later being 
overwhelmingly perceived as a force for good and a good place to serve.  

		(5)  There is a portrayal in the investigation the applicant and his wife were 
hunting for reasons and exerting pressure on the staff to find reasons for his wife to 
travel.  This characterization is false and reflects the complete lack of knowledge of the 
existence of opportunities to enhance family readiness on the part of a biased 
subordinate who was completely unaware of and ambivalent to the importance of these 
well-being initiatives.  

		(6)  The bottom line is, whenever the applicant decided to take his wife on a trip it 
was because she could participate in briefings and establish relationships with 
organizations and personnel beneficial to advancing quality of life initiatives and thus, 
added value to the mission.  Travel was not fun for his wife and resulted in many 
sacrifices on her part.  When she traveled, she did so in support of command 
objectives.  The applicant learned, from reading the investigation, the IG did not always 
find administrative documentation to support the official nature of his wife's travel.   

	g.  Permitting his spouse, the spouse of another general officer and members of the 
media to fly on military aircraft without evidence of ITOs or Individual Travel 
Authorizations.  The IG did not interview the applicant's aide-de-camp who disagreed 
with the notion a general officer and spouse were permitted to fly in July 2009 without 
an ITO.  The common practice during the aide-de-camp's tenure was to release seats to 
space available passengers.  The applicant learned of the conflicting information after 
he had received the GOMOR and retired from the military.  This issue could have been 
resolved long ago had the IG interviewed the applicant's aide-de-camp.  The media 
travel in question was an imbedded Al-Jazeera crew who accompanied the applicant to 
do a documentary on the security assistance efforts in Africa.  It was fully supported by 
and coordinated with OSD Policy and Public Affairs.  

	h.  Not preventing his staff from using official time and motor vehicles rented at 
Government expense to run personal errands and to transport his spouse for unofficial 
purposes.  The applicant takes full responsibility for the limited instances this occurred.  
He wants to stress the allegation speaks to rare occurrences.  After reading the 
investigation, he realizes there were select and very rare situations in which his staff 
members picked up an item of a personal nature for himself or his wife, incidental to 
what they were already doing.  His wife also rode to a Military Child Education 
Conference as an invited Command representative which was determined by his legal 
staff his wife would be serving in a personal capacity.  The IG had access to all of his 
AFRICOM emails and those of his staff.  Despite that, they uncovered nothing to 
suggest this was a systematic issue or pattern of behavior or practice on my part.  The 
applicant does not believe any of the isolated incidents created an embarrassment for 
the DoD or the United States government.     

	i.  Failing to effectively oversee PST travel and operations to ensure they were 
performed in a fiscally prudent manner in violation of the JER and JFTR.  CID, the 
subject matter experts, conducted an inquiry which was completed after the applicant's 
retirement.  The findings completely contradict the IG's findings on this issue.  CID's 
investigation determined the PST travel and length of stays were dictated by the 
applicant's schedule, weather delays, and staff decisions to leave the PST in the US 
rather than flying back to Germany and returning to the US.  The PST was in 
compliance with army regulation and did not act improperly concerning its travel.  This 
allegation should have been unsubstantiated and not used as a substantial basis for his 
GOMOR or grade determination.

	j.  Accepting complimentary meals and Broadway show tickets in excess of $20.00 
in value for me and my spouse.

		(1)  The applicant was reprimanded for accepting gifts from a prohibited source.  
He accepted the gift of meals and complimentary tickets to a Broadway show for he 
and his wife.  One can accept complimentary items when the gifts are based on a 
personal relationship.  He accepted the lunch meal and the theater tickets from a 
former enlisted Soldier he had known for more than 10 years.  Mr. son took care of the 
applicant's lawn and he would seek the applicant out for mentoring from time-to-time.  
When the Soldier retired, he sought the applicant's advice and counsel regarding 
whether he should retire to pursue opportunities outside of the Army or accept 
promotion to Sergeant Major.  They didn't see each other often, but remained close by 
way of email and periodic phone conversations.  

		(2)  The applicant and discussed how he might support troops in AFRICOM.  He 
had provided support to deployed troops in Iraq and Afghanistan and they discussed 
ways he could do the same for the troops in Africa.  The day the applicant accepted the 
theatre tickets, they were meeting the Chairman of the Fisher House Foundation.  
While the applicant and were not drinking buddies they had a close ongoing 
relationship that had existed for several years.

		(3)  The rule prohibiting accepting gifts from prohibited sources is designed to 
avoid having individuals giving gifts to government officials in the hopes of getting 
government employment or contracts.  The relationship he shared with was personal in 
nature and not related to business.  He did not discover was a prohibited source, 
because he was a DoD contractor, until the IG interviewed him.  to the best of his 
knowledge never had business with AFRICOM nor did they discuss business he had 
with DoD other than his attempts to support deployed Soldiers.  The investigation 
stated their review of emails between the applicant and reveled no evidence of 
discussions regarding post-government employment.  For these reasons, the exception 
should have applied.  

	k.  Misusing a hardened Government vehicle in Germany, in violation of 10 U.S. C. 
section 2637, the JER and DOD 4500.36.R.

		(a)  The applicant respectfully submits based on the guidance of his staff, he did 
not misuse a hardened government vehicle in Germany, the inquiry conducted by the 
CID bears that out.  The CID report states the applicant received conflicting information 
concerning his authority to authorize an armored vehicle for his wife.  

		(b) During the challenge of standing up the command, several developments 
began to occur.  Documents began to change the administrative requirement for the 
use of hardened cards.  He instructed members of his staff to investigate and make 
sure they were doing things properly.   

		(c) The applicant was not familiar with all the nuances of the hardened car 
program and relied on his staff members.  He knew his staff was engaged on the issue 
with the program officials at DoD. They were operating on established precedent and 
prior history that he and his wife were vulnerable in Europe.  CID acknowledged he had 
received conflicting guidance on the use of hardened vehicles and found no impropriety 
in his use of such vehicles.   

	l.  Authorizing the presentation of gifts purchased with ORF to ineligible DoD officials 
and US personnel in violation of DoD Instruction 7250.13.  Members of the applicant's 
staff proposed using ORF to purchase gifts for foreign dignitaries.  Prior to that, coins 
had been used for that purpose as well.  The gifts did not arrive until after his final 
series of command visits to Africa.  He did not direct the gifts for the foreign dignitaries 
be used at his farewell dinner and did not learn until later they had been distributed to 
ineligible personnel.  He reimbursed the government for those items.  

	m.  It is the applicant's opinion predominantly administrative shortcomings 
characterized by missing or incomplete records, circumstantial and biased 
misrepresentations and procedural misunderstanding served as the basis for the 
allegations in the GOMOR and the officer grade determination decision.  The actions 
relied on a IG report that had false and misguided conclusions.  The IG did not 
interview key witnesses who had insights into the matters they were investigating.  The 
CID inquiry negated the IG's findings with respect to the operation and supervision of 
his PST and the alleged misuse of hardened vehicles.  Considering all the information 
under objective standards, should result in several allegations being found to be 
unsubstantiated, with others mitigated to such a degree that maintaining the actions 
taken against him could easily be seen as unwarranted and discriminatory.   

11.  The applicant provided several letters of support concerning his retirement grade 
and removal of the GOMOR from his official file.  The letters are from individuals who 
served in high levels of the Army and government.  The complete letters are available 
for the Board to review.  The letters state, in part:  

*	the applicant is an officer of the highest character who possessed and 
demonstrated a commensurate ethical ethos
*	he always operated within the lines and the author never had a reason to 
not completely trust him
*	the author was not familiar with the facts, the details or findings
*	he's sure the applicant was prepared to take full responsibility
*	senior leaders must be held to the highest standards 
*	the author hopes the board can find enough room in the case to make a 
final determination that would allow the applicant to retire in the pay grade 
of GEN/O-10
*	the author strongly supports the applicant's request
*	the conduct in the IG investigation is completely out of character with the 
dealings the author has had with the applicant
*	it is inconceivable to the author the applicant's accomplishments setting up 
a combatant command, could be overshadowed by bad staff work and 
poor records keeping  
*	he deserves to retire at the rank of GEN
*	when one weighs the applicant's stellar career against the matter for which 
he was penalized in his retirement, the Board will see it is time to adjust 
the record
*	the applicant always maintained the highest standards of integrity, moral 
ethics, and professionalism
*	he is an officer of unquestionable high moral character, and highly 
professional in all his undertakings 
*	the recommendation for his reduction to the retirement grade of LTG was 
excessive
*	the entirety of his distinguished 40 year career was not taken into proper 
consideration
*	he remains one of the most admired and respected General officers within 
the Army and Joint Force
*	consider the applicant's request and restore honor to this exceptional 
General Officer
*	to do otherwise would further the injustice he and his family have already 
endured
*	the officer grade determination and the IG investigation that was its basis 
were miscarriages of justice
*	the applicant is the ultimate example of a professional, caring, competent, 
honest, and trustworthy officer and leader
*	what happened to the applicant and his wife is a deliberate attempt to 
undermine their outstanding record of service  
*	the applicant is a role model, mentor, and selfless leader who would never 
have done anything to jeopardize his integrity, character, or legacy
*	allow the applicant to retire as an O-10
*	the applicant is totally selfless devoted to Country and Soldier, humble, 
serving as a charismatic leader, tireless worker, and laser focused on the 
mission
*	the applicant may have relied too heavily on others to handle some 
administrative matters in standing up AFRICOM
*	an investigative report should read to have been objectively fair and 
leaders truly deserve a presumption of innocence
*	the author does not believe the Board can read the investigation and 
conclude it was objectively fair
*	the applicant's honor and rank can be restored without condoning anything 
the Board concludes were shortfalls in his final command
*	the applicant deserves the respect and gratitude of the US government 
not its disparagement
*	the author strongly urges the Board to reconsider the unfortunate way the 
applicant was treated by the organization he so deeply respects and 
dedicated his life to
*	the author believes the officer grade determination at the applicant's 
retirement was unfair
*	he requests the Board reverse the decision and restore the applicant to 
his justly deserved grade of O-10 in retirement
*	the IG investigation mischaracterized the applicant's actions and 
needlessly tarnished his reputation
*	the applicant relied on his staff to handle travel itineraries and other 
administrative details
*	the applicant took full responsibility and repaid the government for 
instances in which the IG either uncovered miscues or did not find 
evidence to exonerate him
*	for the applicant to be retired at a lower grade was unjust and unfairly 
placed a cloud over his remarkable career
*	undo this injustice by allowing him to retire as an O-10
*	when the applicant's wife supported a mission the author was part of, she 
always had an itinerary and an official purpose for traveling
*	the applicant's aide-de-camp states no one from the DoD IG's office 
contacted him about the investigation and allegations of impropriety
*	the DoD IG investigation and subsequent report do not accurately portray 
the applicant's character
*	some events were taken out of context or relied on inaccurate records
*	the aide-de-camp would have been happy to contribute to facts in the 
report and could have provided the context surrounding many events
*	the author finds the IG report to be egregious and simply untrue
*	the applicant is not the officer described in the IG's report
*	the author was surprised when the applicant's executive officers failed to 
adequately understand the importance of team building, interagency 
inclusion, and family dynamics all required to effectively operate in a 4-star 
command
*	two of the applicant's executive officers were obsessed with flag officer 
rank and felt the applicant did not do enough to sponsor them up the ranks
*	one of the executive officers was more veiled in his malicious activities 
and often recorded items in his green book that he did not fully understand 
and failed to do any additional fact finding to resolve his personal 
misconceptions
*	the two executive officers failed to display the courage of their convictions 
and were unsuccessful in adjusting to the rigors of a dynamic and complex 
4-star command
*	only individuals who provided negative information were interviewed
*	it was common knowledge in the command that both executive officers 
were less than fond of the applicant's wife and the author believes she 
was also their target
*	the applicant should have been afforded the honor and distinction of 
retiring as a 4-star genera
*	the Board must acknowledge that race and politics in the Pentagon played 
a major factor in the decision making at the highest levels in this case
*	the author coordinated the applicant's travel itineraries when he was 
traveling to the US 
*	he assisted in deconflicting the applicant's wife's engagements during 
these trips
*	the author clarified the use of hardened vehicles for dependents of high 
risk personnel with the Assistant Secretary of Defense for Special 
Operations and Low-Intensity Conflict and Interdependent Capabilities, the 
proponent for high risk personnel policy
*	the office provided the author with a General Counsel email stating the 
commanders could provide their spouse hardened vehicle support
*	the author told the applicant his executive officer was creating a division 
amongst the staff
*	the executive officer was purposefully spreading misinformation both 
inside and outside the command about the applicant and his wife
*	the executive officer was purposely trying to sabotage the applicant
*	the executive officer made a litany of allegations against staff members 
that were not true and particularly seemed to have a disdain for women to 
include the applicant's wife
*	some administrative mistakes were made but the applicant was not 
motivated by personal gain
*	the author states the applicant is unequivocally the best he ever had the 
pleasure of serving for and would proudly work with him again
*	both the applicant and his wife maintained intensive schedules during their 
travels which is expected for the applicant but could be easily overlooked 
for his wife
*	the applicant's wife always operated on her own official travel itinerary 
during all travel and was completely separate from the applicant's  
*	having known the applicant for forty years over several assignments 
together, including assistant professors at West Point as captains to their 
days serving in the Pentagon on 9/11 and beyond, the findings are totally 
inconsistent with the Soldier and man he knows the applicant to be
*	As was pointed out, there were no determinations of fraud, deceit, 
dishonesty, lapses integrity or character flaws…his punishment was harsh 
and severe to degrees experienced by no others
*	Over the past seven years in retirement, applicant has continued to serve 
and support DOD with honor and integrity

12.  The DASA (Review Boards) wrote a letter to the applicant's attorney dated                          
20 October 2016, which stated 

*	in his letter, he correctly pointed out that only the Secretary of Defense has the 
authority to conduct a retirement grade determination for officers in the grade of 
O-9 to O-10 
*	the ABCMR may, however, review cases such as your client's and render 
written recommendations to higher authority, including to the Secretary of the 
Army
*	the Secretary of the Army in turn may then offer to the Secretary of Defense his 
recommendation as to the proper disposition of your client's case.

13.  The ABCMR considered the applicant's case on 2 May 2017 and denied the 
applicant's request.  An information paper regarding the applicant's case was completed 
by the ABCMR on 12 September 2017. It stated, the ABCMR was unable to find any 
reason to believe the Secretary of Defense's decision to retire the applicant at the lower 
grade was illegal, improper, or unjustified. There are, however, factors in the applicant's 
case that might persuade a decision authority to conclude that restoration of the 
applicant's retirement grade back to General (O-10) is warranted. These factors include:

	a. Relatively Minor Misconduct. The DOD Inspector General's Report of 
Investigation, and the GOMOR, admonish the applicant more for his inattention to detail 
than for a callous or profligate disregard for government expenditures. There is no 
indication the applicant plotted with premeditation to divert government funds or 
services to himself or his family for personal gain. His infractions appear to have 
resulted from negligence rather than deliberate malfeasance. Furthermore, AFRICOM 
was as a newly-formed Combatant Command at the time. AFRICOM's headquarters 
staff may therefore have lacked well-established staffing and overview procedures that 
characterize and benefit combatant commands that have been in existence for 
decades. These circumstances tend to mitigate the applicant's overall culpability and 
support the notion that the misconduct at issue can fairly be described as minor.

	b. The applicant Endured Well-Publicized Indignities. As the culminating assignment 
of an exemplary military career, the applicant, and his superiors no doubt intended his 
command at AFRICOM to be his final duty position prior to his retirement from the 
Army. Instead, the applicant relinquished his AFRICOM command and was then 
required to assume the duties of "special assistant" for more than a year while the DOD 
IG investigation proceeded. Due to the ongoing investigation, he was not permitted to 
retire. In the interim, the applicant reverted to his permanent grade of major general. 
This de facto demotion and his relegation to "special assistant" were surely noted by the 
many colleagues, peers, and friends the applicant had acquired throughout his career. 
Though perhaps not humiliating, this experience must have been humbling for a man of 
the applicant's stature and achievement. The media attention drawn to the applicant's 
difficulties no doubt exacerbated the situation. Taken together, these several indignities 
and embarrassments can be construed as a form of punishment that supports the 
argument that additional adverse action, such as a retirement grade reduction, was and 
remains unnecessary.

	c. Significant Decrease in Basic and Retirement Pay. After relinquishing command at 
AFRICOM, the applicant served as "special assistant" to the Vice Chief of Staff of the 
Army until his retirement. This period covered approximately 21 months (April 2011 
through December 2012). Due to the DOD IG investigation, he was not permitted to 
retire until the investigation was completed. During this time, he was no longer filling a 
four-star position, and therefore was relegated to his permanent rank of major general. 
The decrease in basic pay from general to major general using 2012 and 2013 pay 
tables was approximately $5,000 per month. Over 21 months, this translates to about 
$105,000. Consequently, the applicant incurred a significant decrease in basic pay 
while the Army investigated his case and contemplated how to discipline him. With 
regard to retirement pay, the decision to retire the applicant at the grade of lieutenant 
general instead of general had an obvious and significant monetary impact. Using rough 
estimates, the decrease in his monthly retirement pay is approximately $2,000 per 
month. The decision to reduce his retirement grade has therefore cost him about 
$112,000 in retirement pay over the 56 months since his 31 December 2012 retirement.

14.  Army Regulation 15-180 (Army Grade Determination Review Board (AGDRB) and 
Grade Determination) states:

	a. The Secretary of the Army retains the 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 general 
officers. Under the provisions of Title 10, U.S. Code, section 1370, in the case of an 
officer who is requesting retirement in the grade of GEN or LTG, the Secretary of the 
Army may retire such officers in one of those grades only after the Secretary of Defense 
certifies in writing to the President and Congress that the officer has served 
satisfactorily on active duty in the grade of GEN or LTG. The Secretary of the 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.

15.  The ABCMR has the authority to consider the case.  While the Secretary of 
Defense - not the Secretary of the Army or the ABCMR - has the authority to conduct 
retirement grade determinations for officers in the grade of O-9 to O-10, the ABCMR 
has the authority to review cases like this one and render recommendations as to 
disposition to the Secretary of the Army who may offer recommendations to the 
Secretary of Defense. The DASA (Review Boards) has been delegated authority to 
make final decisions for the Secretary of the Army in ABCMR cases except those for 
which authority has been expressly withheld.

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was warranted. The applicant's 
contentions, the military record, and regulatory guidance were carefully considered. 
There are two issues at hand here: removal of the GOMOR and restoration of the 
retired grade back to O-10 (General) with pay. 

1.  The evidence of record shows the DOD IG initiated an investigation to address 
allegations that while serving as Commander, AFRICOM, the applicant engaged in 
misconduct relating to official and unofficial travel and other matters. The investigation 
focused on allegations relating to his official travel, travel by his spouse on military 
aircraft, use of government resources and personnel, and acceptance of gifts from a 
prohibited source. The DOD IG an ROI to the Secretary of the Army substantiated 
allegations of misconduct against the applicant.

	a.  The evidence of record shows on 12 September 2012, the VCSA reprimanded 
the applicant for engaging in misconduct related to travel and use of military aircraft, 
authorizing his spouse to use a hardened Government vehicle in Germany, misusing 
Official Representation Funds (ORF), misusing his position while serving as the 
Commander, AFRICOM, and accepting gifts based on your position and not a valid 
personal friendship.

	b.  The evidence further shows the applicant acknowledged receipt and responded 
via a rebuttal wherein he addressed each allegation. The imposing officer considered 
matters submitted by the applicant and/or his response and based upon reconsideration 
of certain findings made in the DOD IG ROI, the VCSA decided to strike certain 
language in the GOMOR to more accurately reflect the applicant’s misconduct. After 
careful consideration of his response to the GOMOR dated October 2012, as well as the 
nature of his misconduct, the imposing general officer directed that the redacted 
GOMOR be filed in his official military personnel file (OMPF). 

	c.  The Board reviewed context and outcome of the IG investigation and the nature 
of the misconduct and compared to the totality of the applicant’s service. The Board 
determined that applicant’s misconduct was minor: the misconduct relates to minor 
negligence in processing administrative forms, leisure, complementary meals, 
engraving of gifts, minor misuse of ORF, and unsanctioned spouse travel. The Board 
believed the applicant may have failed to supervise his subordinates properly; however, 
he did not intentionally commit misconduct. It is also important to know that the 
applicant was responsible for a newly established, understaffed, and under-resourced 
major overseas combatant command, with a complex military and political challenges. 

	d.  Despite his long, dedicated, and honorable service to our country, there is no 
doubt that the applicant endured publicized indignity in addition to the loss of money.  
The Board determined that although the GOMOR is not in error, and although it does 
not contain administrative or substantive errors or that it was not prepared in 
compliance with applicable regulations and policies, the impact that this GOMOR has 
had on the applicant’s service and subsequent retirement has been very harsh and 
unjust. The Board unanimously voted to remove it from his record. 

2.  On 29 April 2011, the U.S. Army Human Resources Command published orders 
reducing the applicant from General to Major General effective 8 May 2011 by authority 
of Title 10, U.S. Code, section 601, by order of the Secretary of the Army, and with 
senate confirmation.

	a.  On 12 November 2012, the Secretary of Defense decided to retire the applicant 
in the grade of Lieutenant General (O-9) because he could not "certify that [he] served 
satisfactorily in the grade of General." The applicant retired from the Army on 31 
December 2012. 

	b.  In September 2016, he applied to the ABCMR asking the ABCMR to remove the 
GOMOR from his official file and to recommend to the Secretaries of the Army and the 
Defense that he be retired in the grade of General (O-10). In May 2017, the ABCMR 
denied his request. The ABCMR has the authority to consider the case. While the 
Secretary of Defense - not the Secretary of the Army or the ABCMR - has the authority 
to conduct retirement grade determinations for officers in the grade of O-9 to O-10, the 
ABCMR has the authority to review cases like this one and render recommendations as 
to disposition to the Secretary of the Army who may offer recommendations to the 
Secretary of Defense. The DASA (RB) has been delegated authority to make final 
decisions for the Secretary of the Army in ABCMR cases except those for which 
authority has been expressly withheld.

	c.  The Board acknowledges that the Secretary of Defense certifies in writing to the 
President and Congress that the officer has served satisfactorily on active duty in the 
grade of General or Lieutenant General. However, it is the Secretary of the Army who 
may retire such officers in one of those grades only after the Secretary of Defense 
certifies in writing to the President and Congress that the officer has served 
satisfactorily on active duty in the grade of General or Lieutenant General. In that 
regard, and with the Board voting to remove the GOMOR from the applicant’s service 
record, the recommends the Secretary of the Army submit a recommendation to the 
Secretary of Defense to reinstate the applicant’s retired grade of General. 
?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION: 

The Board determined the evidence presented is sufficient to warrant amendment of the 
ABCMR's decision in Docket Number AR20160016289, on 2 May 2017. As a result, the 
Board recommends that all Department of the Army records of the individual concerned 
be corrected by:

*	removing the General Officer Memorandum of Reprimand (GOMOR), dated 12 
September 2012, from the applicant's official military personnel file (OMPF)
*	the Secretary of the Army of the Army submit a recommendation to the Secretary 
of Defense to reinstate the applicant’s retired grade of General.

												 
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.
?
REFERENCES

1. Army Regulation 15-180 (Army Grade Determination Review Board (AGDRB) and 
Grade Determination) establishes policies, procedures, and responsibilities for the 
AGDRB and other organizations delegated authority to make grade determinations on 
behalf of the Secretary of the Army.

	a. The Secretary of the Army retains the 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 general 
officers. Under the provisions of Title 10, U.S. Code, section 1370, in the case of an 
officer who is requesting retirement in the grade of GEN or L TG, the Secretary of the 
Army may retire such officers in one of those grades only after the Secretary of Defense 
certifies in writing to the President and Congress that the officer has served 
satisfactorily on active duty in the grade of GEN or LTG. The Secretary of the 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. The Assistant Secretary of the Army (Manpower and Reserve Affairs), after 
consultation with the Army Chief of Staff, will appoint general officers for the 
AGDRB, which the Secretary of the Army will direct to consider cases involving 
general officers. The Assistant Secretary of the Army (Manpower and Reserve 
Affairs) 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.

2.  Army Regulation 15-185 (Army Board for Correction of Military Records) 
prescribes the policies and procedures for correction of military records by the 
Secretary of the Army, acting through the Army Board for Correction of Military 
Records (ABCMR).  It states, the ABCMR staff will review each application to 
determine if it meets the criteria for consideration by the ABCMR. The application 
may be returned without action if— 

*	the applicant fails to complete and sign the application
*	the applicant has not exhausted all other administrative remedies
*	the ABCMR does not have jurisdiction to grant the requested relief
*	no new evidence was submitted with a request for reconsideration.

3. Army Regulation 600-37 (Unfavorable Information) provides that 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.

	a. 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. A memorandum of reprimand may be filed in a Soldier's OMPF only upon the 
order of a general officer-level authority and is to be filed in the performance folder. 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.

	c. 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 a decision by competent 
authority. Thereafter, the burden of proof rests with the individual concerned to provide 
evidence of a clear and convincing nature that the document is untrue or unjust, in 
whole or in part, thereby warranting its alteration or removal from the OMPF.

	d. Only memoranda of reprimand, admonition, or censure may be the subject of an 
appeal for transfer to the restricted folder. Normally, such appeals will be considered 
only from Soldiers in grades E-6 and above, officers, and warrant officers. The above 
documents may be appealed on the basis of proof that their intended purpose has been 
served and that their transfer would be in the best interest of the Army. The burden of 
proof rests with the recipient to provide substantial evidence that these conditions have 
been met.

4.  Department of Defense Instruction (DoDI) 1320.04 (Military Officer Actions Requiring 
Presidential, Secretary of Defense, or Under Secretary of Defense for Personnel and 
Readiness Approval or Senate Confirmation) establishes policy, assigns responsibility, 
and prescribes procedures for the submission of military officer personnel actions for 
grade O-10 and below.     

	a. Adverse Information. Adverse information is any substantiated adverse finding or 
conclusion from an officially documented investigation or inquiry or any other credible 
information of an adverse nature. To be credible, the information must be resolved and 
supported by a preponderance of the evidence. To be adverse, the information must be 
derogatory, unfavorable, or of a nature that reflects clearly unacceptable conduct, 
integrity, or judgment on the part of the individual.

		(1) The following types of information, even though credible, are not considered 
adverse:

			(a)  Motor vehicle violations that did not require a court appearance.

			(b)  Minor infractions without negative effect on an individual or the good 
order and discipline of the organization that were not identified because of substantiated 
findings or conclusions from an officially documented investigation or did not result in 
more than a non-punitive rehabilitative counseling administered by a superior to a 
subordinate

		(2) Adverse information does not include:

			(a)  Information previously considered by the Senate pursuant to an earlier 
nomination of the officer.  

			(b)  Information attributed to an individual 10 or more years before the date of 
the personnel action under consideration, except for substantiated conduct any single 
act of which, if tried by court-martial, could have resulted in the imposition of a punitive 
discharge and confinement for more than 1 year. The date of the substantiated adverse 
finding or conclusion from an officially documented investigation or inquiry is used to 
establish the time period, not the date of the incident
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