IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20070011960 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be placed on the retired list in the rank and pay grade of colonel (O-6), the highest grade that he held.

2.  The applicant states, in effect, that his retirement was not approved for the highest rank that he held and served in satisfactorily.  He states that after almost 28 years of exemplary service, the last four of which was in the grade of O-6, anything less than retirement at the O-6 level would be an injustice.  He also requests a personal appearance before the Board if necessary to obtain approval for his retirement at the grade of O-6.

3.  The applicant provides in support of his application, his Officer Record Brief.  He also submits his biography; seven biographies and seven supporting letters from seven general officers; a biography and supporting letter from a rear admiral; and a biography and supporting letter from a senior executive service member, all attesting to his good conduct and overall record of performance. 

CONSIDERATION OF EVIDENCE:

1.  The applicant accepted a commission as a second lieutenant (O-1) in the Regular Army on 14 January 1980; he was promoted to the rank of first lieutenant (O-2) on 14 July 1982; he was promoted to the rank of captain (O-3) on 1 September 1983; he was promoted to the rank of major (O-4) on 



1 December 1991; he was promoted to the rank of lieutenant colonel (O-5) on 1 November 1995; and he was promoted to the rank of colonel (O-6) on 1 July 2003.

2.  On 13 September 2006, the Commander, United States (US) Army Material Command (AMC) was notified by the US Army Deputy, The Inspector General (DTIG), that the Department of the Army Inspector General (IG) received an anonymous complaint alleging misconduct by a member of his staff; and that in accordance with Army Regulation 20-1, the matter was being referred to his command (the Commander, US AMC) for appropriate action.  The notification alleges that the applicant conducted solicitation of mass, group, or captive audiences; that the applicant released a complainant's name to the subject; that the applicant improperly wasted travel funds; that the applicant created a hostile work environment at the AMC-IG office; and that the applicant discriminated against individual/individuals based on race.  The DTIG requested that an inquiry/investigation be conducted into the allegations and that his office be advised of the findings and if appropriate, corrective actions.

3.  On 25 September 2006, an investigating officer (IO) was appointed to conduct an informal investigation into the allegations, in accordance with Army Regulation 15-6.  The investigation commenced on 2 October 2006 and, after a thorough investigation, the IO found that the applicant did indeed invite financial advisors to attend an AMC IG office organizational day bowling function at Fort Belvoir, but the applicant did not allow the advisors to solicit the group as a whole; that the applicant exercised poor judgment and violated the Joint Ethics Regulation by inviting financial planners to an IG officer bowling event, which gave the appearance of violation of the Joint Ethics Regulation prohibition on implying the endorsement of non-Federal entity while in his official capacity; that the applicant did release the name of a complainant outside of IG channels; that the applicant did not, in the conduct of his duties as IG, safeguard the identities or confidentiality of persons who came to his organization for help; and that the applicant did not waste travel funders (dollars) per se, but the intent and purpose of his temporary duty trips appeared to be of little or no value to the mission and should have been cut or curtailed.

4.  The IO further found that the applicant, traveling as the IG, exercised poor judgment during his trips by his behavior and requests and this reflected poorly on his role as the eyes, ears, and conscience of the AMC Commander; that the applicant did create a hostile work environment for some employees under his supervision; that the applicant made a false official statement; that the morale in 


his office was low as seven interviewed individuals out of eleven interviewed individuals rated morale in the IG's office 5 or below (1 being failing and 10 being outstanding); that the IG's office had lost credibility in the command, directly attributed to the applicant's actions; that the applicant had not discriminated against individuals based on race; that he released, against the advice of his staff, the site visit summary and out brief to the brigade and the Theater Support Command representative when he was only supposed to give general information from the report; and that the applicant violated the Joint Ethics Regulation by failing to provide equal opportunity and treatment for disabled employees.  The IO recommended that the applicant be removed from his current position as the AMC IG; that the applicant's chain of command take disciplinary action against him as they deem appropriate for the misconduct detailed in the report of investigation; and that a show cause board be initiated to make a determination regarding the applicant fitness to remain a commissioned officer in the United States Army.

5.  In response to the recommendation made by the IO, the appointing authority noted that action was being taken to initiate a General Officer Letter of Reprimand in regard to the applicant's misconduct; and that any action to initiate a show cause board should be made only after this process was complete.

6.  On 7 November 2006, the applicant was furnished a General Officer Memorandum of Reprimand (GOMOR) based on the results of the investigation that was commenced on 2 October 2006.  In the GOMOR, the commanding general (CG) stated that the applicant shows poor judgment by inviting financial advisors to attend his office organizational day function; by releasing the names of complainants outside of the IG channels and not safeguarding the identities or confidentiality of the individuals who came to his office for help; by creating a hostile work environment within his office; and by making misleading statements to the IO.  The applicant was informed that as a colonel in the United States Army and as the IG of the AMC, he must set the example of leadership, integrity and professionalism; and that, instead, he had engaged in misconduct that eroded the values expected of an officer of his position, grade and experience.  The applicant was told that his conduct was of such a nature as to bring discredit upon the AMC and seriously compromised his standing as an officer of the United States Army.  The applicant was also told by the CG that the reprimand was not punishment under the Uniformed Code of Military Justice; however, it was intended to promptly and directly demonstrate his disapproval of the conduct displayed by the applicant.  The applicant was informed by the CG of his option to file the GOMOR locally or in his Official Military Personnel File (OMPF) and he was told that a decision would not be made to the filing status until a response was received and considered.

7.  In response to the GOMOR that he was furnished, the applicant submitted a memorandum dated 17 November 2006 objecting to the GOMOR and requesting that the GOMOR not be filed in the performance portion of his OMPF.  In his memorandum, he apologized for any embarrassment to the command for any false misrepresentation he may have caused in the allegation concerning commercial solicitation on an Army installation.  He stated that he did not release any names of complainants outside IG channels to the IG and that he was under duress during the investigation interrogation.  He requested that he being given a polygraph to prove his innocence.  In his memorandum, the applicant went on to state that the IO that conducted the investigation was biased against him and that during the interrogation there was no equity and balance in consideration of his 27 years of loyalty and combat service in the United States Army.  In his memorandum, he outlined his 27 years of duties and responsibilities; he listed his awards and decorations; and he requested that the GOMOR be placed in his local file.  He also requested that his retirement from the United States Army be accepted and approved with an effective date of 15 January 2008.

8.  On 2 January 2007, the Commander, Army Human Resources Command (AHRC), received a memorandum from the CG, United States AMC, directing the filing of the GOMOR in the applicant OMPF.

9.  The applicant's request for voluntary retirement is not part of the available records.  However, the available records show that on 17 April 2007, the applicant was notified that his request for voluntary retirement was being forwarded to the Army Grade Determination Review Board for consideration and that a recommendation would be made to the Deputy Assistant Secretary, Army Review Boards, who would make a final determination as to the highest grade in which he had served satisfactorily for retirement purposes.  He was informed of the documentation which would be reviewed during the consideration of his request and that he may submit additional appropriate written materials that he wished the board to consider.  The applicant was told that he could consult with an attorney of the Judge Advocate General's Corps at no expense to him, or he could seek civilian counsel at no expense to the Government.

10.  On 8 May 2007, the Acting Deputy Assistant Secretary, Army Review Boards, notified the Commander, AHRC that the Army Grade Determination Review Board had reviewed the request for voluntary retirement and he directed that the applicant be retired from the Army in the rank and grade of lieutenant colonel (O-5) if retirement was approved.




11.  Accordingly, on 31 January 2008, the applicant was released from active duty in the pay grade of O-6 and he was placed on the retired list in the pay grade of O-5 on 1 February 2008.  He had completed 28 years and 17 days of net active service.

12.  Title 10 of the United States Code, section 1370 provides the legal rules for retirement in highest grade held satisfactorily and provides for officers being retired in the highest grade in which he/she served on active duty satisfactorily, as determined by the Secretary of the military department concerned.  It further states, in pertinent part, that in order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years.  

13.  Personal appearances before the Army Board for Correction of Military Records are by invitation of the Board only, and are not automatically scheduled at the applicant’s request.  Personal appearances are scheduled only when the Board determines a personal appearance hearing is necessary.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence indicates that the action taken by the Army in the applicant's case was correct.

2.  His contention that he should have been placed on the retired list in the rank of colonel based on the fact that he completed 3 years time in grade has been noted.  The documents that he submitted in support of his application have also been noted.  However, they are not sufficiently mitigating to warrant the requested relief.  

3.  By law the applicant was eligible for voluntary retirement based on the fact that he completed 3 years time in grade.  However, he was placed on the retired list in the rank in which he satisfactorily served which was the rank of lieutenant colonel.  

4.  The evidence of record shows that the applicant was serving in the rank of colonel when he was furnished a GOMOR as a result of his acts of misconduct which included inviting financial advisors to attend his office organizational day function; releasing the names of complainants outside of the IG channels and not safeguarding the identities or confidentiality of the individuals who came to his office for help; creating a hostile work environment within his office; and making 


misleading statements to the IO.  His service in the rank of colonel was not satisfactory; therefore, he was properly placed on his retired list in the rank of lieutenant colonel as directed by the Secretary of the military department concerned.

5.  Additionally, as previously stated, personal appearances before the Army Board for Correction of Military Records are by invitation of the Board only, and are not automatically scheduled at the applicant’s request.  

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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 for correction of the records of the individual concerned.




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

ABCMR Record of Proceedings (cont)                                         AR20070011960



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ABCMR Record of Proceedings (cont)                                         AR20070011960



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