IN THE CASE OF: BOARD DATE: 20 December 2023 DOCKET NUMBER: AR20230005030 APPLICANT REQUESTS: reconsideration of his previous request for the following corrections to his service record: •Restoration of his involuntary retirement •Authorize the repayment of back pay, starting 1 February 2016 APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •Appendix 1-2: Memorandum, Subject: Mandatory Retirement Date Due to Non-Selection for Promotion, 13 August 2015 •Appendix 3: Memorandum, Subject: Acknowledgement of Mandatory RetirementDate Due to Non-Selection for Promotion, 13 August 2015 •Appendix 4-5: Orders Number 233-003, 21 August 2015 •Appendix 6: Orders Number 029-0001, 29 January 2016 •Appendix 7-8: U.S. Army Human Resources Command (HRC) Freedom ofInformation Act (FOIA) Number FA-22-281X, 20 June 2022 •Appendix 9-10: HRC FOIA Number FA-22-064X, 24 February 2022 •Appendix 11-12: HRC FOIA Number FA-23-276X, 7 July 2023 •Appendix 13-14: HRC FOIA Number FA-21-218X, 9 September 2021 FACTS: 1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR20210011934 on 26 May 2022. 2.The applicant states, in pertinent part, to take into consideration anotheradministrative record that indisputably established in law and fact wherein the individualwas involuntarily separated from the U.S. Army and is accordingly entitled to a DD Form 214 pursuant to the Department of Defense Instruction (DODI) 1336.01(Certificate of Uniformed Service (DD Form 214/5 Series) dated 2019, "the instructionprovides that every service member who is being separated shall be given a completedDD Form 214 (Certificate of Release or Discharge from Active Duty) describing therelevant data regarding the service member's service and circumstances of termination, paragraph 4(c) "United States v. Labonte, 43 F.4th 1357, 2022 U.S. App. Lexis 22394 (D.C. Cir. 2022)). a.On 14 July 2023, he received information form HRC in response to aFOIA/Privacy Act for information when he was separated from the Army. HRC provided an answer that he was separated from the Army between 7 August 2017 and 7 September 2017. b.The information also shows he was involuntarily discharged after failing twice for non-selection for promotion and with 20 years of active federal service on 5 October 2015. The latest statutory date he could remain on active duty was either 31 October 2015 or 30 November 2015. c.The applicant provides a timeline of his discharge process which is also listed in the paragraphs below. d.Being that he was involuntarily discharged from the Army, not under the jurisdiction of the Secretary of the Army (SECARMY), accordingly he is entitled to be issued a DD Form 214 reflecting that he was involuntarily discharged for failure to promote with the following information listed: (1)He was passed over twice for promotion at the fiscal year 2015 lieutenant colonel (LTC) board. (2)The Board results were approved by the President in July 2015. (3)20 years of Active Federal Service (AFS) on 5 October 2015. e.Given the non-discretionary statutory/regulatory date of the involuntary discharge, and given his personal beliefs by holding conscientious objection to participation in military service of any form before he reached his 20 years of AFS, he requests in lieu of a DD Form 214 reflecting involuntary discharge of 31 November 2015 [sic], that he is granted a Separation Program Designator (SPD) code of "LGB" and granted a Conscientious Objector Discharge on 4 October 2015, with an SPD code of "KCM." This is one day before he would have reached 20 years of AFS thus rendering him permanently ineligible for any retirement or Veteran's Affairs compensation. 3.A review of the applicant's available service record reflects the following: a.On 5 January 1994, the applicant enlisted in the Regular Army. b.On 20 August 1996, he enlisted in the U.S. Army Reserve for 8 years as a cadet in the Reserve Officers' Training Corps (ROTC). c.DD Form 214, ending 21 August 1996 reflects an honorable release from activeduty and transfer to the U.S. Army Reserve Control Group (ROTC) to enter the Officer Training Program. Item 12 (Record of Service) shows service from 5 January 1994 to 21 August 1996 for a net active service this period of 2 years, 7 months, and 17 days. d.On 23 April 1998, Headquarters, Fourth Region (ROTC), United States Army Cadet Command (USACC) issued Orders Number 113-7-A-439 assigning him to temporary duty for completion of the Ordinance Corps Officers Basic Training course from 27 July 1998 to 8 December 1998 with a four-year active-duty obligation upon completion of the course. e.On 21 May 1998: (1)Headquarters, Fourth Region (ROTC), USACC issued a Memorandum forAppointment as a Reserve Commissioned Officer of the Army at the grade of second lieutenant (2LT). (2)He was appointed as a Reserve commission and executed an oath of office. f.On 10 May 2015, a Memorandum for Law Enforcement Report was issuedwherein the police on Redstone Arsenal stopped the applicant for speeding. Upon reaching the applicant's vehicle, the police noticed the strong smell of alcohol and asked the applicant to submit to a series of standardized field sobriety tests; the applicant failed the tests, and a preliminary breath test revealed a blood-alcohol content of 0.186 percent. The police arrested the applicant and transported him to the police station; after the applicant refused to take a breathalyzer, the police detained him until his blood-alcohol level reached an acceptable level. g.On 14 July 2015, the Army Substance Abuse Program (ASAP) Clinical ProgramManager signed a memorandum wherein she affirmed the applicant's ASAP screening and subsequent enrollment in ASAP. She further stated the applicant had completed seven 2-hour group-counseling sessions and three individual counseling sessions; throughout, he maintained a perfect attendance and completed over 20 hours of substance abuse treatment. ASAP released the applicant as successful and stated the applicant's prognosis was "good," as long as he followed all ASAP aftercare recommendations. h.On 29 July 2015, the United States Army Aviation and Missile Command(AMCOM), Commanding General (CG) issued the applicant a General Officer Memorandum of Reprimand (GOMOR) for driving under the influence of alcohol and driving at excessive speed. (1) On 5 August 2015, the applicant submitted a rebuttal, in which he explained the surrounding circumstances. The applicant essentially stated, on 9 May 2015, an early celebration of Mother's Day with his children and former spouse, his former spouse called him frantically at 0120 hours, 10 May 2015, to ask for money to help her best friend; the best friend had been involved in a domestic violence incident and required emergency shelter and provisions. Feeling compelled to help, the applicant drove to the nearest automated teller machine, and the police stopped him as he was returning home. After he was stopped it became apparent, he was being accused of possibly driving under the influence. He changed his demeanor from casual to professional and ceased to answer further questions. He was not sure of the legality of their inquiries, and uncertain of his legal rights, as he was neither formally charged, nor informed of his rights of or when he was to be charged. The applicant declared this was his first alcohol-related incident, and his more than 20 years of Army service was otherwise unblemished. He went on to highlight his participation in ASAP, described himself as someone who had consistently proven himself as an asset to the Army, and disclosed his intent to continue serving the Army as a civilian, upon his projected retirement on 1 May 2016. (2) In an undated Memorandum for Filing Determination on Reprimand, the CG, AMCOM directed the GOMOR's permanent placement in the applicant's Official Military Personnel File (OMPF). i. On 13 August 2015, HRC advised the applicant, via email and memorandum, that a DA promotion selection board had not selected him for promotion to LTC; pursuant to Title 10, United States Code (USC), section 632 (a) (2) and (3), the applicant was required to involuntary retire no later than 31 January 2016. j. On 21 August 2015, the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison – Redstone issued Orders Number 233-0003, for reassignment for separation processing and mandatory retirement, effective 31 January 2016, with service of 20 years, 3 months, and 27 days. k. On 15 November 2015, Redstone Arsenal Police issued a Memorandum for Law Enforcement Report showing the applicant as the subject, and the applicant's former spouse (Ms. ) as the victim of domestic violence in the third degree. l. On 8 December 2015, the Missile Defense Agency, CG, issued the applicant a GOMOR for assaulting his ex-wife (Ms. ), on 15 November 2015. (1)A police investigation had revealed the following: •The applicant was currently married to , but the applicant and Ms. had been cohabitating in Redstone Arsenal government quarters•The applicant had physically assaulted Ms. in the recent past•Upon arriving at the applicant's quarters, and in response to the domestic violence complaint, the police noticed a very strong odor of alcohol emanating from both the applicant and Ms. ; Ms. 's head was still bleeding, and the applicant's minor child was present during the assault (2)On 17 December 2015, the applicant's commander presented the GOMOR to the applicant; the applicant refused to sign the acknowledgement and indicated he did not wish to submit a statement in his own behalf. (3)On 21 December 2015, the CG, Missile Defense Agency elected to place theGOMOR permanently in the applicant's OMPF. m.On 29 January 2016, the U.S. Army Installation Management Command,Headquarters, U.S. Army Garrison – Redstone issued Orders Number 029-0001 which rescinded Orders Number 233-0003, citing Army Regulation 600-8-24 (Officer Transfers and Discharges) as its authority. n.On 2 February 2018, and contrary to the applicant's pleas, a general court-martialconvicted the applicant of Uniform Code of Military Justice (UCMJ) violations. (1)The court found the applicant guilty of the following offenses:(a)Article 120 (Rape and Sexual Assault):(ß)Between 1 May and 30 June 2007, the applicant raped Ms. (.)Between 25 July and 31 August 2011, the applicant caused Ms. to engage in a sexual act and inflicted bodily harm by holding her down with his hands and the weight of his body(d)Between 6 and 11 October 2011, the applicant caused Ms. to engage in a sexual act and inflicted bodily harm by holding her down with his hands and the weight of his body (b)Article 128 (Assault): •On 24 December 2014, the applicant struck Ms. twice in the face with his fist•On 15 November 2015, the applicant pushed Ms. with his hands (c)Article 133 (Conduct Unbecoming an Officer): •On diverse occasions, between 1 February 2013 and 15 November 2015, the applicant, a married man, had sexual intercourse with Ms. , a woman not his wife•On diverse occasions, between February 2013 and April 2014, the applicant, a married man, had sexual intercourse with Ms. , a woman not his wife•On diverse occasions, between 1 July and 24 December 2014, the applicant, a married man, had sexual intercourse with Ms. , a woman not his wife (2)The court sentenced the applicant to 25-years' confinement and dismissalfrom the service; however, in a subsequent post-trial session, the military judge resentenced the applicant to 17-years' confinement and dismissal from the service. (The convening authority had initially referred seven rape specifications against the applicant. The trial counsel moved to dismiss the first specification after the applicant's arraignment, but prior to the applicant's entry of pleas; in the post-trial session, the military judge dismissed another two rape specifications and, on that basis, reduced the applicant's term of confinement). (3)Following his conviction, the court remanded the applicant to confinement,and, on or about 2 February 2018, the applicant arrived at the Midwest Joint Regional Correctional Facility located on Fort Leavenworth, KS. o.On 14 February 2018, the U.S. Army Garrison – Redstone issued OrdersNumber 045-001 for a permanent change of station to the Midwest Joint Regional Correctional Facility, Fort Leavenworth, KS, to be confined for 25 years, with a retroactive report date of 2 February 2018. p.On 4 February 2020, the U.S. Army Court of Criminal Appeals set aside theconvening authority's action and returned the applicant's record of trial to The Judge Advocate General (OTJAG) for remand to the same or a different convening authority. The court directed a new Staff Judge Advocate Review and Action and required the convening authority to consider all matters previously submitted by the applicant after the court had adjudged the sentence, as well as any new matters the applicant had provided prior to the convening authority's action. q.On 13 April 2020, the applicant submitted a Memorandum for Resignation for Good of Service (In-Lieu of Court-Marital) wherein he voluntarily tendered his resignation for the good of the service, per AR 600-8-24, paragraph 3-13 (Processing Resignation for the Good of the Service (RFGOS) in Lieu of General Court-Martial). The applicant affirmed he did not want to appear before a board of officers, no one had coerced him into tendering his resignation, and counsel had fully advised him of the implications of his request. He argued his resignation resulted from the persistent abuse he received from his chain of command, and the myriad of errors within the military justice system that had denied him a fair trial. r.On 15 May 2020, the United States AMCOM, CG, issued a Memorandum forRecommendation on Inmate Retirement for the Good of Service Request recommending disapproval. s.Army Review Boards Agency (ARBA) Docket Number AR20200008263, decidedon 29 September 2020, the ARBA, Army Ad Hoc Review Board decided not to accept the applicant's RFGOS, in lieu of trial by general court-martial and directed the case be returned to the General Court-Martial Convening Authority for action as he deems appropriate. t.On 2 November 2020, the general court-martial convening authority approved theamended sentence of 17 years and dismissal and, except for the dismissal, ordered the sentence's execution; the general court-martial convening authority additionally credited the applicant for confinement served since 3 February 2018. u.ABCMR Docket Number AR20210011934 decided on 26 May 2022, wherein he requested revocation of his involuntary retirement and appropriate back pay beginning 1 February 2016. The Board determination denied his request stating, in effect: (1)After reviewing the application and all supporting documents, the Board found relief is not warranted. The Board found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. (2)The Board found no evidence of violations of statute or regulation in the process that led to the applicant's eventual sentence to dismissal. The Board determined the decision to deny the applicant's retirement in favor of court-martial proceedings was not in error or unjust 4.The applicant provides the following: a.Appendix 1-2: Memorandum, Subject: Mandatory Retirement Date Due to Non- Selection for Promotion dated 13 August 2015 and previously considered under ABCMR Docket Number AR20210011934. b.Appendix 3: Memorandum, Subject: Acknowledgement of Mandatory RetirementDate Due to Non-Selection for Promotion, dated 13 August 2015 and previously considered under ABCMR Docket Number AR20210011934. c.Appendix 4-5: Orders Number 233-003, dated 21 August 2015 and previously considered under ABCMR Docket Number AR20210011934. d.Appendix 6: Orders Number 029-0001, dated 29 January 2016 and previously considered under ABCMR Docket Number AR20210011934. e.Appendix 7-8: HRC FOIA Number FA-22-281X, dated 20 June 2022, wherein theapplicant was informed in the cases of mandatory retirements, there is no delegation to the CG, HRC because they are mandatory by law. f.Appendix 9-10: HRC FOIA Number FA-22-064X, dated 4 February 2022 showing the applicant requested copies of any records of communication regarding orders for PCS, reactivation to active duty, requests for orders, etc. HRC provided a response stating, in effect, they were unable to locate any records and that the officer's complete records are purged from the system 3 months after separation occurs. g.Appendix 11-12: HRC FOIA Number FA-23-276X, dated 7 July 2023 showing the applicant requested copies of documentation surrounding the existence of an Active-Duty list. HRC provided a response stating, in effect, he was still on active duty on 7 August 2017 but was separated prior to 7 September 2017. h.Appendix 13-14: HRC FOIA Number FA-21-218X, dated 9 September 2021 showing the applicant requested copies of his name on the retired list, the number of officers placed on the retired list in fiscal year 2015-2017, organizational chart for the U.S. Army Reserve (USAR) Control Group, the number of retired enlisted, warrant, and officers assigned to the USAR Control Group, and the status of personnel assigned to the USAR Control Group. HRC provided a response stating, in effect, there was no retirement list found with his name on it. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records, the Board determined there is insufficient evidence to support the applicant request for restoration of his involuntary retirement nor authorization for the repayment of back pay, starting 1 February 2016. The Board agreed based on the applicant’s egregious patterns of misconduct and him willingly submitting for separation from the Army there is no error or injustice. Based on the preponderance of evidence the applicant’s separation was proper and his contentions for relief are without merit. Therefore, the Board determined amending the previous Board decision is unwarranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board found the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20210011934 on 26 May 2022. Microsoft Office Signature Line... I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1.Title 10, USC. a.Section 632 requires the separation/retirement of Army officers on the active duty list in the grade of major who has failed selection for promotion to the next higher grade for the second time. The separation/retirement date will not be later than the first day of the seventh calendar month in which the President approves the report of the promotion selection board. b.Section 639 authorizes the Secretary of the Army to delay an officer's retirement without prejudice when any action has commenced that may result in the officer's court-martial. c. Section 688 states, under regulations prescribed by the Secretary of Defense, the Secretary of the Army may order a retired Regular Army member to active duty at any time, and, consistent with other provisions of law, the Secretary may assign the member to duties considered necessary in the interests of national defense. d. Section 12731 outlines age and service requirements for non-regular (i.e. USAR) retired pay. 2. AR 600-8-24 (Officer Transfers and Discahrges), in effect at the time, prescribed policies and procedures for the transfer of all officers on active duty for 30 days or more. a. Paragraph 1-17. "An officer pending court-martial charges or investigation with a review toward court-martial will not be separated without HQDA approval." b. Section V (Task: Process Separation of Commissioned Officers and Chief Warrant Officers who are Twice Non-Selected for Active Duty List Promotion by an HQDA Centralized Board), paragraph 5-9 (Rules for Processing Separation of Commissioned Officers and Chief Warrant Officers who are Twice Non-Selected for Active Duty List Promotion by an HQDA Centralized Board). (1) The regulation required the involuntary release or discharge from active duty of commissioned Officers on the active duty list twice non-selected for promotion to lieutenant colonel unless they were retired or within 2 years of retirement (i.e. had completed 18 or more years of active Federal service on their scheduled release date). (2) Retirement-eligible officers could apply for their retirement to be effective not later than the first day of the seventh month beginning after the month in which the President or Secretary of the Army had approved the promotion selection board's report. c. Chapter 6 (Retirements) applied to non-disability retirements of active duty list commissioned officers on active duty who had 20 or more years of active Federal service. (1) Paragraph 6-1f (The Officer Retirement Program) stated, "When an action is initiated against a commissioned officer with a view to trying such officer by court-martial, the Secretary of the Army may delay that officer's retirement (without prejudice) until the action is completed (per Title 10, USC, section 639). (2) Section II (Voluntary Retirements), paragraph 6-13 (Approval Authority) states: (a) "The Secretary of the Army is the approval authority for retirements. The Secretary of the Army has delegated approval authority for voluntary retirements (waiver/non-waiver) to CG, HRC-Alexandria. CG-HRC-Alexandria may approve, disapprove, or delay/defer the requested retirement date of an officer who has completed 20 but less than 30 years of active Federal service." (b) Delegation of approval authority did not include "Mandatory retirements (when an officer has been notified by HQDA)." (3) Section VI (Mandatory Retirement) addressed officers who were mandatorily retired based on law and initiated by HQDA; included were officers who had reached their maximum age, those selected for early retirement or selective retirement, per Title 10, section 638 (Selective Early Retirement). 3. Article 2, UCMJ states retired members of a regular component of the Armed Forces who are entitled to pay are subject to the UCMJ. 4. AR 27-10 (Military Justice), in effect at the time, implemented policies and procedures pertaining to the administration of military justice within the Army. Chapter 5 (Procedures for Courts-Martial) stated: a. "Retirees are subject to the UCMJ and may be tried by court-martial for violations of the UCMJ that occurred while they were on active duty or, while in a retired status. DA Policy provides that retired Soldiers subject to the UCMJ will not be tried for any offense by any courts-martial unless extraordinary circumstances are present." b. The regulation went on to require the approval of OTJAG prior to referral of court-martial charges. In cases where the appropriate court-martial convening authority sought the recall of the retiree to active duty, the convening authority had to route the request through OTJAG to the Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) for approval. //NOTHING FOLLOWS//