IN THE CASE OF:	  

	BOARD DATE:	  31 July 2008

	DOCKET NUMBER:  AR20070014091 


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 the retired grade determination of the Army Grade Determination Review Board (AGDRB) be changed to show his authorized retired grade is Colonel/O-6 (COL/O-6) vice Lieutenant Colonel/O-5 (LTC/O-5).  

2.  The applicant states, in effect, that based on the recommendation of the AGDRB, the Acting Deputy Assistant Secretary of the Army (DASA) (Review Boards), directed his placement on the Retired List in the grade of LTC/O-5.  He claims this decision was made prior to his case being finalized in the United States Federal Court and has caused an injustice to him and his family.  He states that the Federal Court never determined an exact date of when the alleged offense of conspiracy was initiated, and that the only way the AGDRB could conclude he was on active duty when the alleged conspiracy started or took place is through assumption.  He further claims that the AGRDB made a recommendation that was contradictory to all the evidence to include direct and cross examination of the Government's only witness in the case.  He states that under oath, the Department of Justice star witness unequivocally denied any conspiracy or wrong doing by the applicant.  He states the court record never determined when the alleged conspiracy offense began; however, it did confirm the alleged offense ended on 26 July 2005, which was after he was placed on the Retired List on 1 January 2005.  Therefore he questions how the AGDRB determined he was still on active duty when the alleged offense occurred.  


3.  The applicant further states that the Federal Judge commented that the applicant had served his country in an exemplary and extraordinary manner for 29 years in the matter and that this offense is extraordinary out of character for a man of his background and integrity.  The applicant claims there is substantial documentation in his file which shows he served satisfactorily as a COL.  The applicant further requests that his case be reviewed objectively and that his long and distinguished career with the Army be considered.  He claims that the unsatisfactory service determination of the AGDRB was unjust in light of his career of service to the Army, and states that he served satisfactorily as a COL.

4.  The applicant provides the following documents in support of his application: Self-Authored Statement; Army Review Boards Agency letter, dated 
27 September 2007; Office of the Assistant Secretary, Manpower and Reserve Affairs memorandum, dated 31 October 2006; United States District Court Middle District of Florida Tampa Division Judgment in Criminal Case; Middle District Court of Florida Statement of Reasons; Joint Motion for New Trial Based on New Evidence; Headquarters, United States Army Special Operations Command letter, dated 3 May 2006; and Pre-Polygraph Interview. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was appointed a second lieutenant (2LT) in the Army and entered active duty on 6 June 1979.  It also shows he was promoted to LTC/O-5 on 1 February 1996 and to COL/O-6 on 1 December 2001.

2.  The applicant's Official Military Personnel File (OMPF) contains Personnel Service Support Team, MacDill Air Force Base Orders Number 078-0010, dated 18 March 2004, as amended by Personnel Service Support Team Orders Number 112-0015, dated 21 April 2004, which authorized his release from active duty for retirement on 31 December 2004, and his placement on the Retired List, in the grade of COL/O-6 on 1 January 2005.

3.  On 31 December 2004, the applicant was honorably released from active duty for retirement.  The separation document (DD Form 214) he was issued at the time shows he completed a total of 25 years, 6 months, and 25 days of active military service, and that he held the rank of COL/O-6, which he had attained on 
1 December 2001.  

4.  On 6 July 2006, the applicant was found guilty of conspiracy to commit the offense of mail fraud and bribery by providing preferential treatment to contractors represented by himself and his corporation by a civil court jury trial in the United States District Court, Middle District of Florida.  This conviction was 
modified by a Judge's ruling made in the United States District Court, Middle District of Florida, on 15 August 2006.  The Judge determined the applicant was guilty of only the first count of the indictment (conspiracy to commit offense against the United States). 

5.  The evidence of record concerning the conspiracy conviction shows that the applicant was still on active duty, and as early as October 2004, exchanged electronic mail (e-mail) with a government employee, Mr. B___, in an effort to get preferential treatment for certain vendors who agreed to work with the applicant's company, Strategic Defense International (SDI).

6.  On 31 October 2006, the AGDRB upon reviewing the applicant's case, pursuant to paragraph 4-1c, Army Regulation 15-80, determined the applicant's service in the grade of COL/O-6 was not satisfactory based on the misconduct he committed while he was still on active duty that resulted in his civil court conviction.  The AGDRB determined the applicant's misconduct occurred prior to his completing 3 years of satisfactory service as a COL/O-6, and as a result, his retired grade should be changed to LTC/O-5, which is the highest grade in which he satisfactorily served.  

7.  On 31 October 2006, the Acting DASA (Review Boards) approved the recommendation of the AGDRB in the applicant's case and directed his retired grade be changed to LTC/0-5, and Headquarters, United States Army Garrison Fort Stewart/Hunter Army Airfield published orders changing the applicant's retired grade to LTC/0-5.  A correction (DD Form 215) to the applicant's 
31 December 2004 DD Form 214 was also published that added the entry "Retired List Grade LTC" to Item 18 (Remarks). 

8.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board (AGDRB) and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army (SA).  Chapter 4 contains guidance on officer personnel grade determinations.  It states that an officer is not automatically entitled to retire in the highest grade served on active duty. Instead, an officer is retired in the highest grade served on active duty satisfactorily, as determined by the SA or the Secretary's designee. For officers below the grade of brigadier general, the AGDRB will recommend to the DASA (Review Boards) for final determination, the highest grade in which an officer has served satisfactorily for purposes of service/physical disability retirement, computation of retired pay, or separation for physical disability. The AGDRB recommendation is purely advisory, and the SA or the SA's designee is not bound by that recommendation.

9.  Paragraph 4-1 of the grade determination regulation provides guidance on officer grade determinations.  It states, in pertinent part, that although officer grade determinations are normally accomplished at time of retirement or disability, a grade determination can be reopened by the Army after separation if substantial new evidence discovered contemporaneously with or within a short time following separation could result in a lower grade determination.  For example, if an officer's misconduct while still on active duty is documented by memorandum of reprimand, non-judicial punishment, or conviction after retirement, and such misconduct was not discoverable through due diligence, a new grade determination may be completed. 

10.  Paragraph 4-1c (2) of the same regulation states, in pertinent part, that the Army can reopen the issue of a member's retirement grade based on the fact that the misconduct prior to retirement was not discovered and documented until after their retirement date

11.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  Paragraph 1-18, contains the policy for accepting a promotion and the guidance on the impact of promotion on service obligations and retirement.  It states, in pertinent part, that an officer, who accepts a promotion to a rank of COL through major general (MG), must serve in that grade satisfactorily for three years prior to voluntary retirement.  However, the President may waive this requirement in individual cases involving extreme hardship or exceptional or unusual circumstances.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his retired grade should not have been changed from COL/O-6 to LTC/O-5 by the AGDRB was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant was not officially released from active duty for retirement until 31 December 2004, as evidenced by his retirement orders and DD Form 214.  It further shows that he committed the misconduct that resulted in his civil court conviction of conspiracy to commit an offense to the United States as early as October 2004, while he was on transition leave more than two months prior to his official retirement, as evidenced by documentation included in the AGDRB record of the grade determination review it conducted on the applicant.   

3.  The ABCMR does not view this conduct by the applicant as minor.  Further, the Board is not bound by the pronouncement of the trial judge that the applicant's service as a COL/O-6 was satisfactory.  That statement at best was advisory and does not trump the decision of the DASA and AGDRB made after weighing the applicant's conduct through the lens of the high standards and ethics expected of an Army Officer.

4.  By law and regulation, in order to be retired in the grade of COL/O-6, a member must complete 3 years of satisfactory service in that grade.  Therefore, given the applicant was not promoted to COL/O-6 until 1 December 2001, and he committed the misconduct addressed by the AGDRB in October 2004, he did not complete the 3 years of satisfactory service required to retire in the grade of COL/O-6.  As a result, the AGDRB’s recommendation that he should be placed on the retired list in the grade LTC/O-5, which is the highest grade in which he satisfactorily served on active duty, was appropriate.   

5.  The AGDRB’s action was processed in accordance with the applicable laws and regulation.  Absent any evidence of an error or injustice related to this process, there is an insufficient evidentiary basis to support granting the requested relief.  

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.   

BOARD VOTE:

________  ________  ________  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 for correction of the records of the individual concerned.



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

ABCMR Record of Proceedings (cont)                                         AR20070014091



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ABCMR Record of Proceedings (cont)                                         AR20070014091



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