IN THE CASE OF:	  

		BOARD DATE:	        04 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014219 


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 reconsideration of his request to be retired in the rank and pay grade of colonel (COL)/O-6.

2.  The applicant states, in effect, that he was improperly retired in the rank and pay grade of lieutenant colonel (LTC)/O-5 for an alleged incident that allegedly occurred while he was on active duty, when in fact, the court has determined that he was retired when the incident occurred and he should have been retired in the rank and pay grade of COL/O-6 because he served satisfactorily, without incident, while on active duty.  He continues by stating that the court has stated that it is undisputed that he had retired from active duty when the incident was committed and officials from Federal Bureau of Prisons have stated officially that the date of the offense was 26 July 2005.  He goes on to state that the reference to an October 2004 electronic mail (e-mail) is wrong and directly contradicts the legal findings of the court.  Additionally, there is no factual evidence that he committed any incident of misconduct while on active duty and there is no question that he served satisfactorily in the rank and pay grade of COL/O-6.  Accordingly, he should be retired in that rank and pay grade.

3.  The applicant provides copies of the Board's previous decision, the Army Grade Determination Board's decision, a copy of a 14 November 2007 court decision, and copies of sentence monitoring computation data.



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070014091, on 31 July 2008.

2.  On 31 December 2004, the applicant was honorably released from active duty for retirement.  The separation document (DD Form 214(Certificate of Release or Discharge from Active Duty)) 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.

3.  On 26 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."  The judge stated that the e-mails supported the jury's guilty verdict on the single conspiracy charge.

4.  The evidence of record concerning the conspiracy conviction shows that the applicant was still on active duty, and as early as October 2004, exchanged 
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.

5.  The court order provided by the applicant dated 14 November 2007 is in response to the applicant's request/motion for a new trial and states that the applicant was "retired from active duty when he committed the offenses of conviction."  The court order denied the applicant's motion for a new trial.

6.  The sentence monitoring computation data sheets provided by the applicant indicate that the date of his offense is 26 July 2005.

7.  On 15 August 2006, the United States District Court, Middle District of Florida, issued a judgment in the applicant's case indicating that the applicant was found guilty of "conspiracy to commit offense against the United States" and that the offense ended on 26 July 2005.

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 Deputy Assistant SA (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 the retirement date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the Board's interpretation of the context of the government's exhibit that referenced an October 2004 e-mail is wrong and contradicts the legal findings of the court has been noted and found to lack merit.

2.  There is sufficient evidence in this case to suggest that the action taken by the Board to retire the applicant in the rank of LTC was proper and in accordance with applicable regulations.  This is further supported by the fact that the judge who overturned all but one of the guilty findings, clearly left standing the guilty verdict of conspiracy because the e-mails supported a finding of guilty.

3.  The applicant's contention that officials at the Federal Bureau of Prisons determined that his offense was committed on 26 July 2005, after his retirement, has been noted and also found to lack merit.  The court determined that his offense ended on 26 July 2005, not that his offense was committed on that date.

4.  Notwithstanding the court's opinion that the applicant was retired when he committed the offense, the available evidence suggests that the applicant was actually on terminal leave when the offense was committed and the applicant has failed to provide sufficient evidence to establish that such was not the case.  Accordingly, there appears to be no basis to grant his request.

5.  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 to amend the decision of the ABCMR set forth in Docket Number AR20070014091, dated 31 July 2008.



      ________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)                                         AR20080014219



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ABCMR Record of Proceedings (cont)                                         AR20080014219



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