IN THE CASE OF: BOARD DATE: 12 May 2022 DOCKET NUMBER: AR20210008655 APPLICANT REQUESTS: reconsideration of his request for correction of his records to show he was medically retired vice honorably retired for unacceptable conduct, placed on the Retired List in the rank/grade of lieutenant colonel (LTC/O-5) vice major (MAJ)/O-4, and paid back pay and allowances. He also requests a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * E-mail regarding proposed order * State of County court order * Supplemental documents and supporting evidence not considered in Docket Number AR20140015567 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: a. Docket Number AR20120022969 on 27 August 2013, the Board denied the applicant's request to show he was medically retired and placed on the retired list in the rank of LTC/O-5. Though the applicant was not tried or convicted of a crime while serving on active duty, the Army Grade Determination Review Board (AGDRB) determined his service in the rank of LTC was not satisfactory as the evidence of record confirmed when he violated a civil emergency protective order on 26 March 2010 and he violated both the civil emergency protective order and a military protective order on 7 April 2010. The applicant admitted to civil law enforcement he purchased and mailed a sex toy to a minor child, the alleged victim in his civil criminal case. Although a Physical Evaluation Board (PEB) recommended placement on the Temporary Disability Retired List (TDRL), when an officer is processed for retirement in lieu of elimination, the Secretary of the Army or designee makes the final determination if the retirement action or the disability action takes precedence. The Deputy Assistant Secretary of the Army (DASA) (Review Boards) properly disapproved his placement on the TDRL and approved the retirement in lieu of elimination. b. Docket Number AR201400155657 on 28 January 2016, the Board denied the applicant's request to show he was medically retired and placed on the retired list in the rank of LTC/O-5. The Board determined the applicant was properly placed on the retired list in the rank of MAJ/O-4 due to the violation of the protective orders and his admission to civil law enforcement. In accordance with governing regulations, when an officer is processed for retirement in lieu of elimination, the Secretary of the Army or designee makes the final determination if the retirement action or the disability action takes precedence. The DASA (Review Boards) acting on behalf of the Secretary of the Army properly disapproved his placement on the TDRL and approved retirement in lieu of elimination. 2. The applicant states he submits new evidence to appeal his grade reduction to MAJ by the AGDRB at the request of the 1st Cavalry Division. The AGDRB case was initiated based on the allegation he violated a civilian protective order which mirrored an identical military order. The case was submitted to the AGDRB on 11 July 2011 and was granted on 20 July 2011. The DASA (Review Boards) approved the Board recommendation on 21 July 2011, and this rush to judgement caused him to have his disability retirement disapproved and be placed on the retired list in the rank of MAJ. It does not show this authority was delegated by the Secretary of the Army. He appealed the reduction in grade and attempted to withdraw any perceived consent to tender a retirement in lieu of elimination. He also requested a favorable consideration of a medical discharge. His medical condition was ultimately rated at 100 percent permanent and total disability. a. In his initial appeal (Docket Number AR20120022969) both the application for medical discharge and retired grade reduction were denied on 28 August 2013. An appeal to this decision was submitted on 20 August 2014 based on the new evidence the civilian court now factually agreed the applicant was innocent of any protective order violation. As evidence he provided the courtroom evidence: court transcripts, district court judicial orders, ankle monitor tracking records, etc. Though the United States Postal Service tracking shows this evidence was delivered, there was no formal acknowledgement of receipt by the Board. This appeal was denied on 28 January 2016, and there was no indication the Board considered the new evidence provided by him. b. The new evidence for his recent appeal is the recently awarded order of expungement of the protective order violation charges by the State of Supreme Court. He requests a review of Docket Number AR20140015567 in light of the supplemental evidence and the order of expungement. He requests favorable consideration for the reinstatement of his rank as LTC, to be paid the associated back pay, and to change the reason for separation to indicate under medical conditions. As an alternative, he requests the full Army Review Boards Agency case records to include the supplemental evidence and the order of expungement be made part of an administrative record for review by the U.S. Court of Federal Claims. 3. A review of the applicant's service record shows: a. With prior enlisted service, the applicant was appointed in the Regular Army (RA) in the rank/grade of second lieutenant/O-1 on 25 April 1980. b. On 23 May 1980, Orders Number 100-2-A-345, issued by Headquarters (HQ), U.S. Army Second Reserve Officers' Training Corps (ROTC) Region, ordered the applicant to active duty for a four-year service obligation. c. The applicant was honorably discharged from active duty on 30 September 1992 by reason of the "Fiscal Year Officer Early Transition Program" and assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement). DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant completed 12-years, 3- months, and 24-days of active service. Item 4a (Grade, Rate or Rank) shows captain (CPT)/O-3. d. The applicant completed his oath of office and was appointed as a Reserve commissioned officer on 1 October 1992 in the rank of captain CPT. e. On 6 May 1994, Orders Number C-05-420246, issued by the U.S. Army Reserve Personnel Center, attached the applicant to the 4th U.S. Army ROTC Region, effective 26 February 1994. f. On 30 July 1999, the U.S. Total Army Personnel Command (PERSCOM) notified the applicant of his promotion to the rank of LTC in the USAR, effective 30 September 1999. g. On 4 November 1999, the U.S. Army Reserve Personnel Command (ARPERSCOM) notified the applicant of his promotion to the rank of LTC in the USAR, effective 1 September 1999. h. During the rating period 1 September 1999 through 1 June 2000, the applicant was rated as a Command and General Staff Officer Course (CGSOC) instructor. His rater rated his performance as outstanding and must promote. The rater stated his experience, devotion to duty contributed greatly to the unit's mission. The applicant's senior rater evaluated his promotion potential to the next higher grade as fully qualified. The senior rater stated he shows self-organization and a genuine concern for the program. The attendance at the Army War College would enhance the applicant's leader skills and add to the CGSOC program. The applicant should be considered for promotion and continue in the teaching career field. i. During the rating period of 2 June 2000 through 1 June 2001, the applicant was rated as a CGSOC instructor. His rater rated his performance as outstanding and must promote. The rater stated his performance was exemplary and received positive feedback from students and directors. The applicant contributed significantly to the quality of the CGSOC courseware. He was an exceptional communicator and had unlimited potential and would make an outstanding regional training director. The applicant should be promoted and sent to senior service school. The applicant's senior rated evaluated his promotion potential as best qualified. The senior rated stated the applicant's enthusiasm was contagious and had led to the successful accomplishment of assignments. The applicant should be promoted immediately and be considered for senior service school. j. On 21 December 2001, Orders Number A-12-005501, issued by the U.S. Total Army PERSCOM, ordered the applicant to active duty, effective 14 January 2002, for the fulfillment of a 3-year active Army requirement. k. During the rating period 2 June 2001 through 7 January 2002, the applicant was rated as a CGSOC instructor. His rater rated his performance as outstanding and must promote. The rater stated he was a top notch officer and outstanding instructor. The applicant routinely received positive feedback from students and battalion (BN) active duty officers on his effectiveness and quality of instruction. The applicant's senior rater evaluated his promotion potential as best qualified. The senior rater stated he demonstrated leadership potential and devotion to duty and commitment to excellence. The applicant applied real world expertise into the classroom environment to better prepare the students for future leadership responsibilities. The applicant must be promoted to colonel (COL)/O-6 and assigned to duties relevant to that rank. l. On 6 March 2002, Orders Number 065-001, issued by the U. S. Total Army PERSCOM, showed the applicant's active duty date of rank for LTC as 1 September 1999. m. On 8 March 2002, Orders Number 02-067-007, issued by HQ, 95th Division (Institutional Training), assigned the applicant to the USAR Control Group (Reinforcement) due to personal cogent reasons, effective 13 January 2002. n. The applicant's service record is void of any evidence of assignment from the USAR Control Group (Reinforcement). o. During the rating period 8 January through 18 June 2002, the applicant was rated as the Brigade Executive Officer (BDE XO). His rater rated his performance as outstanding and must promote. The rater stated the applicant's exemplary understanding of administration and logistics was matched by an impressive knowledge of combined arms operations. He made numerous contributions to the BDE and increased unit readiness. The applicant should be promoted and assigned to positions of great responsibility. The applicant's intermediate rater stated he excelled as the XO of one of the most diverse and dispersed BDEs in the division. He clearly had the potential to succeed in command of an aviation BN or garrison. The applicant's senor rater evaluated his promotion potential as best qualified. The senior rated stated he was an outstanding officer and leader. The applicant's staff operated as a level of proficiency that rivaled any in the division. He was ready to command a BN and promote him and assign to most challenging positions of responsibility. p. During the rating period 19 June 2002 through 4 June 2003, the applicant was rated as the BDE XO. His rater rated his performance as outstanding and must promote. The rater stated he was a master of community relations, fostering close bonds of partnership with local community leaders. He was first rate by all measures and he was worthy of promotion to COL. His intermediate rater stated he distinguished himself through hard work and expert management of resources. He managed the largest combined budget of any major subordinate command in the division and did with great efficiency. The applicant's senior rater evaluated his promotion potential as best qualified. The senior rater stated few leaders would be able to balance substantial demands of a complex organization as the applicant had done. He had tremendous potential and promotion and increased responsibility was a must. q. The applicant's service record was void of any evidence of assignment to the USAR Control Group (Reinforcement) or release from active duty. r. On 22 September 2003, Orders Number C-08-322822, issued by the U.S. ARPERSCOM, assigned the applicant to the USAR Control Group (Retired Reserve) due to non-participation, effective 25 September 2003. s. During the rating period 5 June 2003 through 15 May 2004, the applicant was rated as Chief, Technical Assistance Field Team. His rater rated his performance as outstanding and must promote. The rater stated as a testament to his superior leadership, for the first time in history the military and national police were cooperating jointly. The applicant's senior rater evaluated his promotion potential as best qualified. The senior rater stated he was technically competent and committed to the mission. His managerial skills reduced days lost to maintenance and he had potential to perform increasingly demanding missions and continue to challenge. t. During the rating period 15 May 2004 through 14 May 2005, the applicant was rated as the Chief of Staff. His rater rated his performance as outstanding and must promote. The rater stated his combat arms field experience enabled him to provide valuable insight into the organization's manner of support. His personable leadership style resulted in the elimination of the non-participant rate. He should be promoted immediately. His senior rater evaluated his promotion potential as best qualified. The senior rater stated he was the primary catalyst in raising the command climate of his group to an unprecedented level. The applicant should be selected for attendance at the Army War College and promote immediately. u. The applicant completed his oath of office and was appointed as a RA commissioned officer on 29 June 2005 in the rank of LTC. v. During the rating period 15 May 2005 through 5 January 2006, the applicant was rated as the Chief of Staff. His rater rated his performance as outstanding and must promote. The rater stated he had unquestionable ability to function as division or higher primary staff or to train future leadership as a Professor of Military Science (PMS). He provided maturity, leadership, and experience on an unprecedented scale. The applicant's senior rater evaluated his promotion potential as best qualified. The senior rater stated he met or exceeded standards on every assigned task and continuously sought greater responsibility. As a result of his sound advice and detailed technical assistance his unit was able to efficiently train numerous BDE and BN level staffs for deployment. w. During the rating period 6 January through 9 June 2006, the applicant was rated as the Deputy Chief, Aviation. His rater rated his performance as outstanding and must promote. The rater stated he demonstrated a solid understanding of the complex organizational relationships in a joint/combined environment. The applicant applied his talents as a strategic operations action officer overseeing all Baghdad International Airport security issues, impacting every major coalition organization in Iraq. The applicant's senior rater evaluated his promotion potential as best qualified. The senior rater stated he was a very capable, poised, and confident leader. He excelled in bringing resolution to some of the most challenging air operations issues in Iraq. He should be promoted to COL. x. During the rating period 10 June 2006 through 8 January 2007, the applicant was rated as the Deputy Chief, Strategic. His rater rated his performance as outstanding and must promote. The rater stated he coordinated more than a dozen separate critical actions, staffed among five supporting military commands and for U.S. Government departments. His intense personal drive and strong mission focus coupled with immense pride created outstanding results. The applicant played a critical role in planning and executing Iraq's largest ever airborne spraying campaign. He was ready for promotion to COL. The applicant's senior rater evaluated his promotion potential as best qualified. The senior rater stated he must be selected for command, the senior service college, and promotion to COL. The applicant was ready for increased responsibility at the highest echelons of the Army. He had demonstrated profound understanding and facility in the complexities in the Iraq operational environment. y. During the rating period 9 January 2007 through 8 January 2008, the applicant was rated as Chief, Test Management Division. His rater rated his performance as outstanding and must promote. The rater stated the applicant's expert staff coordination resulted in a superb deployability matrix that ensured personnel tasking to support Operation Iraqi Freedom and Operation Enduring Freedom were fair and equitable across the command. He demonstrated maturity, leadership and professional competence for success at the next higher level. The applicant's senior rater evaluated his promotion potential as best qualified. The senior rater stated he demonstrated exceptional pursuit of system process improvements, personnel management, operational testing, and resource management. The applicant should be promoted to COL and send to senior service college. z. During the rating period 9 January through 22 June 2008, the applicant was rated as the Chief, Aviation Systems Division. The applicant's rater rated his performance as outstanding and must promote. The rater stated he was a superior leader who has contributed immeasurably to the directorate's success. The applicant's dynamic leadership coupled with keen technical prowess created an unprecedented level of teamwork and esprit de corps. He had tremendous potential and promote to COL now. The applicant's senior rater evaluated his promotion potential as best qualified. The senior rater stated he made significant and lasting contributions to key programs during his tenure. The applicant should be promoted and assigned to important leadership positions. aa. During the rating period 23 June 2009 through 8 April 2010 the applicant was rated as G-3 Operations Officer. The applicant's rater rated his performance as outstanding and must promote. The rater stated he kept the leadership informed of operations that allowed the understanding of the operational environment and facilitated decision making. He continued to demonstrate commitment to the mission and the unit. He should be promoted to COL. The applicant's senior rater evaluated his promotion potential as best qualified. The senior rater stated he was always the most uniquely talented liaison officer. He continued to serve capably as the unit shifted into the reset phase of deployment. The applicant should be selected for senior service college and promote to Col. bb. During the rating period 9 April 2010 through 1 February 2011, the applicant was rated as the G-3 Aviation Officer. The applicant's rater rated his performance as satisfactory and to promote. The rater stated he satisfactorily performed his assigned duties. His primary focus was to complete the required actions to enable his medical separation/retirement. The applicant has to wear a tracking ankle bracelet for a period of time which limited his ability to interact with other Soldiers and support the division's mission. He chose to retire in lieu of separation proceedings. He should be promoted at the needs of the Army. The applicant's senior rater evaluated his promotion potential as fully qualified. The senior rater stated he performed his assigned duties. His focus was preparation for retirement. He had tactical and technical skill to serve at his current grade, with supervision. The evaluation was referred due to conduct off duty. cc. On 12 April 2011, the applicant rebutted the evaluation stating the comments regarding wearing of an ankle bracelet and his submission for retirement in lieu of elimination as a violation of prohibition against unproven derogatory information. The wearing of the ankle bracelet was an administrative consequence of a still pending civilian case for which there was no military involvement in the court decision to order the wearing of the ankle bracelet. His commander informed him on 6 July 2010 that there were no restrictions to his military duties outside of requirements to comply with the civilian order. He was never informed by his rater there was any indication his duty description had been changed or modified as a result of the pending civilian case. He was never counseled regarding his performance; therefore, it was inappropriate to comment on what was an administrative consequence of an unresolved civilian case. Being he elected to retire and never went before the elimination board proceedings, there was no regulatory provision for the comment about his retirement in lieu of elimination. The applicant believed both comments needed to be removed from his evaluation. dd. On 6 May 2011, the PEB found the applicant was physically unfit for retention due to post-traumatic stress disorder (PTSD) and annular bulging of the intervertebral disc. The PEB recommended the applicant be placed on the TDRL with 60 percent disability. ee. On 21 July 2011, the Office of the Assistance Secretary, Manpower and Reserve Affairs, informed the U.S. Army Human Resources Command (HRC) the applicant's records for retirement in lieu of elimination based on misconduct and moral or professional dereliction were reviewed before the AGDRB. The applicant's placement on the TDRL was disapproved and his retirement in lieu of elimination was approved. It was directed the applicant be placed on the retired list in the rank of MAJ/O-4. ff. On 15 August 2011, HRC notified the applicant the DASA (Review Boards) disapproved his placement on the TDRL and approved the AGDRB recommendation he be retired in the grade of MAJ/O-4. The effective date of his retirement was directed to be 31 October 2011 with placement on the retired list on 1 November 2011. gg. The applicant was honorably retired on 31 October 2011 under the provisions of Army Regulation (AR) 600-8-24 (Officer Transfers or Discharges), paragraph 6-17d (Retirement in Lieu) and paragraph 4-2b (Unacceptable Conduct). The DD Form 214 issued at that time shows: * Item 4a (Grade, Rate, or Rank): LTC * Item 4b (Pay Grade): O05 * Item 18 (Remarks): Retired List Grade MAJ 4. The applicant provides: a. E-mail, dated 17 September, regarding the applicant's proposed expunction order, which stated due to the disaster declarations by the Governor, the Court of Criminal Appeals, Supreme Court and County, the District Attorney's office signed and electronically filed the proposed order. b. State of County court order, dated 17 September 2020, which shows the court found the petitioner (the applicant) was entitled to expunction of the arrest by County Sheriff's Department for violation of protective order which allegedly occurred on 26 March 2010; therefore, it was ordered, adjudged, and decreed that all records and files pertaining to the arrest or arrests listed in the order be expunged. Related arrests of the same or similar charge, date or arresting agency not specifically listed herein are excluded from this order. c. Supplemental documents and supporting evidence not considered on Docket Number AR20140015567 wherein the applicant states in the discussion and conclusion sections of Docket Number AR20120022969 the Board indicated an officer was permitted to serve in the Army because of special trust and confidence the President and the nation placed in his patriotism, valor, fidelity, and competence. The applicant reiterated he was recalled to active duty voluntarily post-9/11 and served four combat tours since then, which was more than most of his peers. He also states that every OER that he received in his entire career with the exception of his last OER indicated his service was outstanding. His last 10 years of service were in the rank of LTC. (1) The Board acknowledged the applicant performed his military service in an outstanding manner much of the time in the rank of LTC, as it was fact he had not yet been tried or convicted of a crime while serving on active duty. The Board indicated the AGDRB considers the nature, severity, facts, and circumstances of any misconduct; therefore, there was no requirement that a member be convicted of a crime. (2) The applicant feels the Board's decision indicated that the evidence of record confirms the applicant violated a civil emergency protective order on 26 March 2010 while holding the rank of LTC and he violated both a civil emergency protective order and a military protective order on 7 April 2010. This statement would suggest the applicant was judged guilty of a crime, which was not the case. (3) The applicant states that, contained in the testimony, his main accuser stated he had a legal right to go to his house, the location of the first alleged violation of the order. During the testimony the judge did not find a criminal violation of any civilian emergency protective order when he stated, "I find that you have explained all of the variance here at least adequately enough for me to not put you in jail." There was no increase in bond, only a slight modification of the civil order to increase the distance to 200 feet of separation between him and his former family. Being that his hearing took place after the military protective order was issued, the judge's findings would also apply to any alleged violation of the military protective order. (4) There is no evidence that exists to confirm he admitted to civil law enforcement that he purchased and mailed a sex toy to a minor child (the alleged victim). The accuser in the civil case stated he showed the victim a vibrator and he admitted he purchased it for the victim when she was 15 years of age. The statement along with a statement from the alleged victim was used to determine probable cause for an arrest warrant. He finds it interesting that the Fort Hood Case Review Committee (CRC) did not find that the criteria were met for child abuse on 1 February 2011, with which the commander concurred. The report was provided to rebut the accuser and provide evidence that the Army's own investigators did not find evidence sufficient to support a military charge. To the best of his knowledge and belief, no evidence exists that he ever mailed a sex toy to anyone let alone a minor. There were multiple requests through the Freedom of Information Act (FOIA) to obtain information regarding the allegation(s) as well as several appeals from previous FOIA requests. If the information exists, it should be provided. (5) His FOIA requests on the AGDRB also remain unfulfilled regarding the panel's membership, service organization, and branch of service along with a copy of AR 15-80 (AGDRB) pertaining to the operation of the board. A letter from his military defense counsel stated that he received a response to his informal inquiry which indicated no such records exist. However, after his multiple FOIA requests, the FOIA officer stated the AGDRB that was conducted on 6 May 2011 was considered by a panel of three Army COLs. If the FOIA officer knows the panel consisted of three COLs, there would have to be a record of the board. (6) His referred OER, upon which much of the Board's decision was likely made, present a few questions: (1) The Chief of Staff, , appears as his rater for the first time in his career, where since 23 June 2008 his rater was . How is it the Chief of Staff was able to insert himself into the applicant's OER. The OER in question was signed by COL on 2 March 2011 and on 4 March 2011 by Major General (MG). He has two different versions of this evaluation which are identical with the exception that the later version is marked as referred and signed by MG on 5 April 2011 and the applicant signed on 13 April 2011. The letter of referral also has different dates; signed on 5 April 2011 and 14 April 2011 and 18 April 2011 in the document date field. The inconsistencies bring into question the propriety of these actions and none of it can be used as evidence against the applicant as it appears to violate the regulation. The applicant rebutted the referred OER. The applicant stated that no one has satisfactorily explained how a Chief of Staff can insert himself into his OER nor explained the various dates on the OER from MG or the apparent late submission timeline. The applicant requested for this OER to be expunged from his records. The applicant submitted FOIA inquiries which have been returned with three identical copies of his DD Form 149, but yet remains unanswered by ARBA. (7) At the time he was placed in confinement by civil authorities, he requested to utilize his excess combat leave, which was denied. He then requested transition leave, which would have been about 70 days. He was confined on federal charges on 13 June 2011, and had the transition leave been granted, he would of had about 2 months of lost time due to confinement instead of 4 months alleged by the Board. (8) A PEB found him physically unfit for retention on active duty, which was arbitrarily discarded without cause. A memorandum and e-mail provided states the PEB case was administratively terminated by the Soldier which may result in a change in the current MEB/PEB proceedings. All authorizations and PEB proceedings are void. In the e-mail it stated the disability issue was killed. The PEB Liaison Officer had problems notifying him, and the response was do not worry as he is in civilian Federal pre-trial confinement on alleged new misconduct. He states there was no new misconduct; the Federal charges were entered for the same alleged misconduct in the State case. On 25 March 2011, the PEB requested the Department of Veterans Affairs provide a disability rating for all referred and claimed conditions which resulted in a recommendation of 70 percent disability on 24 May 2011. All the work was completed over 2 months prior to the arbitrary decision to deny his medical discharge. d. Page 1 of Reporter's record for bond hearing on 23 April 2010 before the District Court of County in which Mr. appeared for the defendant and appeared for the State. e. Affidavit from Mr. on 22 March 2010, which stated he had good reason to believe the applicant intentionally or knowingly caused the penetration of the mouth of the minor child who was not his spouse by placing his penis in her mouth. On 22 March 2010, the affiant received a child protective service report which referenced the sexual abuse of the victim which alleged the applicant sexually assaulted his minor sister-in-law when they lived in the same residence. During an interview the victim stated the abuse began gin and continued when they moved to. The applicant touched her breasts, placed his penis in her mouth on multiple occasions, and purchased a vibrator that he used on her. f. HQ, Carl R. Darnall Army Medical Center Memorandum, dated 1 February 2011, Subject: CRC Case Determination, which stated the applicant was involved in an alleged child abuse incident. The Fort Hood CRC completed an evaluation of the report and determined it did not meet the criteria for child abuse on 1 February 2011. g. U.S Trial Army Defense Service Memorandum, dated 18 October 2011, Subject: Retirement-Related Inquiries, which stated the applicant raised several questions regarding his pending retirement of 31 October 2011. Defense counsel responded: (1) The DASA (Review Boards) was lawfully designated to take action in the applicant's case. The DASA disapproved the applicant's placement on the TDRL, approved his retirement in lieu of elimination, and directed he be placed on the retired list in the grade of MAJ/O-4. Title 10, United States Code (USC), section 1186(a), allows the Secretary of the military department concerned to grant a request for voluntary retirement of an officer facing elimination. (2) Placement on the TDRL is a discretionary act by the service Secretary or his designee based in part on a medical determination that the disability is likely permanent. An officer who requests retirement in lieu of elimination may be placed on the TDRL if a physical disability evaluation found him unfit for duty. Because it is a discretionary act, failure to place the applicant on the TDRL did not necessarily contravene any existing law or policy. (3) The RNC Separation Program Designator Code indicated unacceptable conduct, which was the stated basis of the applicant's earlier elimination action. (4) Regarding the applicant's request for discovery from the AGDRB, an informal response was provided to defense counsel that there were no such records that existed. The applicant may want to consider a FOIA request. Counsel was unaware of any additional information in the applicant's case that was retained by ARBA. h. ARBA letter, dated 22 September 2015, in response to the applicant's letter, which provided copies of documents and evidence that was prepared for review by the Board in response to his DD Form 149 signed 20 August 2014, which was assigned case number AR20140015567. In reference to his letter dated 22 May 2015, the case file for AR 20120022969 was provided. The AGDRB case number AR20110013213 was conducted on 6 May 2011 was considered by three Army COLs. ARBA noted the applicant contended he had service connected PTSD, and his case would receive priority in processing, but due to the number of issues that he raised, it required additional time to provide him a just and fair decision. i. OER for period of 23 June 2008 through 22 June 2009, which shows the applicant was rated as the G-3 Operations Officer while deployed to Iraq. His rater was COL and his senior rater was MG . The applicant's rater rated his performance as outstanding and must promote. He demonstrated the potential to serve in positions of greater responsibility and select for difficult assignments. The applicant's senior rater rated his performance as outstanding, his experience and determination made him ideal in the difficult Corps Liaison Chief position. The applicant should be selected for senior service college and promote to COL. j. OER for period of 23 June 2009 through 8 April 2010, which shows the reason for the evaluation was a Senior Rater Option, and he was rated as the G-3 Operations Officer while deployed to Iraq. His rater was COL - and his senior rater was MG . The applicant's rater rated his performance as outstanding and must promote to COL. He had the potential to serve in positions of greater responsibility. The applicant's senior rater rated his potential for promotion as best qualified. His performance remained outstanding and should be promoted to COL. k. OER for period of 9 April 2010 through 1 February 2011, which shows the reason for the evaluation was a Change of Rater, he was rated as the G-3 Aviation Officer. His rater was COL and his senior rater was MG . The rater signed the evaluation on 2 March 2011 and rated his performance as satisfactory and promote at the needs of the Army. The applicant performed his assigned duties satisfactorily. His primary focus was to complete the required action to enable his medical separation/retirement from active duty. He had to wear a tracking ankle bracelet which limited his ability to interact with Soldiers and support the Division. The applicant chose to retire in lieu of separation proceedings. The applicant's senior rater signed the evaluation on 4 March 2011 and rated his potential for promotion as fully qualified. The applicant performed his assigned duties and had the tactical and technical skills to serve in his current grade with supervision. During the rating period his focus was preparation for retirement. The applicant has not signed the OER. (1) This version of OER for period of 9 April 2010 through 1 February 2011 was identical to the previous version with the exception it was a referred evaluation and the senior rater signed it on 5 April 2011 and the applicant signed on 13 April 2011. The letter of referral stated the reason for referral was reference to conduct off duty and provided the applicant a suspense until 14 April 2011 to acknowledge receipt and make comments if he so desired. The letter was signed by the senior rater dated 5 April 2011. (2) The applicant submitted a rebuttal to the referred OER, dated 12 April 2011, in which he stated he specifically rebutted the last two lines of the rater comments which referred to the fact he wore an ankle bracelet and he submitted for retirement in lieu of elimination. The applicant believed the derogatory comments were not permissible in accordance with AR 632-3 (Evaluation Reporting System). The comment regarding the ankle bracelet violated the prohibition against unproven derogatory information and was an administrative consequence of a still pending civilian case, which there was no military involvement. The applicant was not aware of any instance where the wearing of the ankle bracelet interfered with his performance of his duties. The applicant's true rater never gave the applicant any indication his duty description had changed or was modified as a result of the civilian case. It seemed inappropriate to comment on what amounts to an administrative consequence or an unresolved civilian case. The applicant also stated there was no provision in AR 632-3 by which a rater may comment on the circumstances of his retirement such as highlighting his retirement was in lieu of elimination. The applicant elected to retire and never went before a board proceeding; therefore, it would not be used to justify any comment on the elimination proceedings. The word "elimination," which is facially derogatory, should not be used because a final adjudication was never made. l. Headquarters, 1st Cavalry Division Memorandum, dated 24 April 2011, Subject: Request for Placement on Voluntary Excess Leave, signed by COL , which stated the applicant's request for excess leave rather than remaining in a civilian confinement status until his retirement in lieu of elimination was denied. The applicant would remain in a confinement status until his retirement or his release. m. Excerpt from the Record of Proceedings for Docket Number AR20120022969, wherein the applicant underlined the verbiage "this misconduct rendered his service as a LTC as unsatisfactory." The excerpt also stated that although the PEB recommended the applicant's placement on the TDRL, when he was processed for retirement in lieu of elimination, the Secretary of the Army or his designee makes the final determination if the retirement action or the disability action takes precedence. In the applicant's case the DASA properly disapproved the applicant's placement on the TDRL and approved his retirement in lieu of elimination. n. E-mail, dated 21 July 2011, from Mr. with ARBA, which stated the attached document was the final decision involving the applicant and the disability issue was "killed". The applicant's PEBLO had problems notifying the applicant regarding the status, he was in civilian confinement on Federal pre-trial on alleged new misconduct. The attached document from the U. S. Army Physical Disability Agency (USAPDA) dated 21 July 2011, stated the administrative termination of the applicant PEB was based on new information submitted by the applicant. All authorizations and the PEB proceedings are void. o. Memorandum, Subject: Voluntary Retirement in Lieu of Elimination, dated 4 October 2010 shows the individual submitting the document requested he be released from active duty and placed on the retired list upon completion of the MEB/PEB process. The individual understood if the PEB found him fit for duty, the USAPDA would approve the findings for the Secretary of the Army and forward the proceeding to HRC to process the other action. If the PEB found the individual unfit, both actions would be forwarded by HRC to the Secretary of the Army or his designee for determination or appropriate disposition. If the Secretary of the Army accepts the application, it may not be withdrawn except for extreme compassionate reasons or convenience of the government. The individual felt he was entitled to retire at the rank of LTC, but he understood the final determination was done by Headquarters Department of the Army (HQDA). p. U.S. Army PEB letter, dated 25 March 2011, requests the Department of Veteran Affairs (VA) to provide a disability rating percentage with rationale regarding the applicant as the PEB found him physically unfit for retention on active duty due to PTSD and annular bulging of the intervertebral disc. q. United States Postal Service tracking shows a product was accepted at the Petersburg, VA office on 27 October 2015 and delivered to Arlington, VA on 29 October 2015. BOARD DISCUSSION: 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 the DASA (Review Boards) acted within the authority delegated to her by the Assistant Secretary of the Army for Manpower and Reserve Affairs when she determined the applicant would be retired in lieu of elimination instead of being retired due to disability. Further, the applicant had actual knowledge that this outcome was a possibility when he voluntarily submitted his request to retire in lieu of elimination. In the 4 October 2010 voluntary retirement in lieu of elimination request, the applicant specifically acknowledged that, if the result of the MEB/PEB resulted in a finding of physical unfitness, both actions would be forwarded to the Secretary of the Army or designee for determination of appropriate disposition. 3. The Board further found the evidence available to the DASA (Review Boards) and the additional evidence now available to this Board insufficient to support a finding that retirement for disability should have taken precedence over retirement in lieu of elimination. The Board found the after-the-fact expunction of the protective order violation does not overcome other factors in this case, such as the applicant admitting to civilian law enforcement that he provided a sex toy to a minor child who was the alleged victim in his civilian criminal case. The applicant contends there is no evidence he “purchased and mailed” a sex toy to a minor, but only evidence that he “purchased it for the victim when she was 15.” The applicant asserts this misconduct does not rise to such a level that his service as a LTC could be deemed unsatisfactory. While the applicant is correct that the 22 March 2010 affidavit does not mention the applicant mailed a sex toy to a minor, the affidavit reflects probable cause existed to issue a warrant related to sexual assault of a minor. The affidavit notes the victim reported the applicant had sexually assaulted her beginning when she was 13 and purchased a vibrator that he used on her as well as penetrating her mouth with his penis. When shown the vibrator, the applicant confessed that he purchased it for the victim. Taking into account the subsequent expunction of the protective order and the fact the applicant gave a sex toy to a minor, the Board found the applicant had failed to demonstrate by a preponderance of evidence an error or injustice related to the decision to retire him in lieu of elimination in the grade of O-4 / MAJ. The Board determined the DASA (Review Boards)’s finding that the applicant’s service in the grade of O-5 / LTC was unsatisfactory is supported by a preponderance of evidence. 4. The Board noted the applicant's contentions regarding his referred OER. The Board found the applicant makes specious assertions that the rater who completed the OER “inserted himself” into his rating chain without notification to anyone and appeared as his rater for the first time in his career. Despite submitting a timely rebuttal to the referred OER, it does not appear the applicant disputed the OER rating chain until several years after the fact. Further, the only difference between the two versions of the OER is that one is marked referred and the other was not. The comments are identical. Finally, the referred OER – and the comments contained therein – were not the basis of the elimination action that ultimately resulted in the applicant’s retirement in lieu of elimination and placement on the Retired List in the grade of O-4. 5. The Board found the applicant's misconduct rendered his service as a LTC/O-5 unsatisfactory. The Board carefully considered the amount of time he had held the grade and the favorable evaluations he received in that grade, but found his misconduct to be an egregious violation of the standards of behavior required of a senior field-grade officer. After weighing the positive and negative aspects of his record as a LTC/O-5, the Board determined the applicant’s overall record as a LTC/O-5 was unsatisfactory and warranted placement on the Retired List in the next lower grade. 6. Based on a preponderance of the evidence, the Board determined the applicant's retirement in lieu of elimination and his placement on the Retired List as a MAJ/O-4 were not in error, unjust, or inequitable. In light of this determination, there is no basis for any back pay and allowances. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Numbers AR20120022969, dated 27 August 2013, and AR20140015567, dated 28 January 2016. 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. AR 600-8-24 (Officer Transfers and Discharges), in effect at the time, prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30-days or more. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges. a. Paragraph 1-24, provides that if a commissioned or warrant officer is being processed for release from active duty, separation, retirement, or has been referred for elimination action, when it is determined that the officer has a medical impairment that does not meet medical retention standards, the officer will be processed through the MEB/PEB system. If the result of the physical disability evaluation is a finding of physical unfitness, the action will be forwarded to the Secretary of the Army or his designee for determination of appropriate disposition. If an officer is processed for separation or retirement in lieu of elimination, the Secretary of the Army or his designee may direct that either the separation, retirement action, or the disability action take precedence. b. Paragraph 4-2b, Misconduct, moral or professional dereliction, or in the interests of national security. * Discreditable or intentional failure to meet personal financial obligations * Mismanagement of personal affairs that are unfavorably affecting an officer's performance of duty * Mismanagement of personal affairs to the discredit of the Army * Intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation * Acts of personal misconduct * Homosexual conduct * Intentional neglect of or failure to perform duties * Conduct unbecoming an officer * Conduct or actions that result in the loss of a professional status, such as withdrawal, suspension or abandonment of professional license, endorsement, or certification * Final denial or revocation of security clearance c. Paragraph 4–3 (Medical condition), an officer referred or recommended for elimination under this chapter who does not meet medical retention. When it is determined the officer's mental condition contributed to military inefficiency or unsuitability, the medical evaluation will include a psychiatric study of the officer. This study will indicate whether the officer was able to distinguish right from wrong and whether the officer currently has the mental capacity to understand board and judicial proceedings and participate in defense. When applicable, the report will also indicate whether the incapacitating mental illness could have been the cause of the conduct under investigation. d. Paragraph 6-16d, an officer who receives a notification memorandum of impending elimination may request retirement in lieu of elimination, if the officer has 19 years and 6 months or more active Federal service (AFS) on the date of such application. If the officer elects to retire and the elimination action involved misconduct or moral or professional dereliction, CG, HRC, will forward the retirement application and memorandum of notification for elimination with all supporting documentation to the AGDRB. Any comment or rebuttal by the officer and the officer's Official Military Personnel File will be included in the forwarding documentation. The AGDRB will make recommendation as to the highest grade that the officer has served on Active Duty satisfactorily. The effective date of retirement for an officer: * With 19 years and 6 months but less than 20 years AFS will not be later than 60 days after the officer attains 20 years AFS * With 20 or more years AFS will not be later than 60 days from the date the officer elected retirement in lieu of elimination 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, USC, Chapter 61, and Department of Defense Directive (DODD) 1332.18. It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. a. Paragraph 4–4 (Commissioned or warrant officers who may be separated under other than honorable conditions), a commissioned or warrant officer will not be referred for disability processing instead of elimination action (administrative separation) that could result in separation under other than honorable conditions. Officers in this category who are believed to be unfit because of physical disability will be processed simultaneously for administrative separation and physical disability evaluation. Commanders exercising general court-martial authority will ensure that the foregoing actions processed together are properly identified and cross-referenced. b. Paragraph 4-24b, based upon the final decision of USAPDA or APDAB, USA HRC will issue retirement orders or other disposition instructions as follows: * Permanent retirement for physical disability * Placement on the TDRL * Separation for physical disability with severance pay * Separation for physical disability without severance pay * Transfer of a Soldier who has completed at least 20 qualifying years of Reserve service, and otherwise qualifies for transfer to the Inactive Reserve on the Soldier's request * Separation for physical disability without severance pay when the disability was incurred as a result of intentional misconduct, willful neglect, or during a period of unauthorized absence * Release from active duty and return to retired status of retired Soldiers serving on active duty who are found physically unfit * Return of the Soldier to duty when he or she is determined physically fit 3. AR 15-80 (AGDRB and Grade Determinations) in effect at the time, establishes policies, procedures, and responsibilities of the AGDRB. The regulation states: a. The DASA (Review Boards) will make discretionary grade determinations for the Secretary of the Army for officers below the grade of brigadier general involving service retirement, physical disability retirement, computation of retired pay, or separation for physical disability. The DASA (Review Boards) 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. b. A grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay. Although a lower grade determination may affect an individual adversely, it is not punitive. c. Service in a higher grade will normally be considered unsatisfactory if reversion to a lower grade was expressly for prejudice or cause; owing to misconduct; caused by non-judicial punishment pursuant to Article 15 of the Uniform Code of Military Justice; or the result of the sentence of a court-martial. It also states that service will be considered unsatisfactory if there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory. 4. Title 10 USC, section 1370, provides that an officer will be retired in the highest grade served on active duty satisfactorily as determined by the Secretary of the Military Department concerned. 5. AR 15-185 (Army Board for Correction of Military records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. A 20 December 2010 memorandum for the DASA (Review Boards), subject: Delegation of Authority, provides that the DASA (Review Boards) may act in all cases involving officer retirement requests in lieu of elimination and officer physical disability separations when the officer is also being processed for release from active duty, separation, resignation or retirement in cases otherwise falling within this delegation. The DASA (Review Boards) has been delegated authority to act on elimination cases involving officers with less than 18 years active federal service as well as those who are retirement eligible. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008655 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1