IN THE CASE OF:	  

		BOARD DATE:	        24 MARCH 2009

		DOCKET NUMBER:  AR20080016924 


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 that his rank be restored to major general and that he be placed on the Retired List in that grade, effective 1 February 2006, with entitlement to all back pay and allowances from that date.  He also requests that he be granted a personal appearance before the Board.

2.  The applicant states, in effect, that information that was not known or understood at the time he was retired in the rank of brigadier general has since been discovered and serves to explain the reasons for his behavior at the time.  He goes on to state that he was involved in a serious bicycle accident in 1994 that likely triggered his current mental disorder.  He continues by stating that he had been experiencing sleeplessness and was prescribed CELEXA by the division surgeon; however, he has recently been diagnosed as suffering from Bipolar II Disorder, a condition that adversely affected his ability to make appropriate choices, understand the consequences of bad ones and fully appreciate the ramifications of his actions.  Additionally, it affected his ability to appreciate the seriousness of the allegations against him and his willingness to defend himself.  He further states that he has since been advised that CELEXA should not be prescribed for patients who suffer from Bipolar II Disorder because it can aggravate the symptoms.  He also states that he believes that his mental illness should be considered and especially in conjunction with his 34 year career of otherwise exemplary service to the Nation and contends that his performance 


as a major general and the fact that he was nominated for promotion to lieutenant general supports his contention that he should be retired in the rank of major general.

3.  The applicant provides an eight-page affidavit explaining his application, a
12-page affidavit from his spouse, a copy of a record of medical treatment dated in July 1994, copies of pages from a Physicians' Desk reference identifying "CELEXA," copies of pages from the Diagnostic and Statistical Manual of Mental Disorders regarding Bipolar II Disorders, and a diagram of the "Donut of Misery."

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's request for a personal appearance be granted.

2.  Counsel states that there are unique circumstances in this case arising from serious medical matters that can best be explained and understood through a personal appearance by the applicant.  She goes on to state that the applicant was suffering from a serious medical condition that directly affected his personal behavior and his ability to evaluate and control his conduct.  She further states that under these circumstances, his reduction in rank at retirement was unfair and he should be given the opportunity to present his case directly to the Board.

3.  Counsel provides no additional documents with her letter. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as an Infantry Regular Army second lieutenant upon graduation from the United States Military Academy at West Point on 7 June 1972.

2.  The applicant completed his training and was transferred to Fort Carson, Colorado for his first permanent assignment.  He was promoted to the rank of captain on 7 June 1976 and was transferred to West Point for duty as a faculty member in 1978.

3.  He was promoted to the rank of major on 1 November 1983 and to the rank of lieutenant colonel on 1 December 1989.  He served as a battalion commander during Operation Desert Shield/Storm and in November 1992, he was transferred 


to the Pentagon for duty in the office of the Deputy Chief of Staff for Operations and Plans (DCSOPS).

4.  On 8 April 1994, the applicant sustained multiple fractures to the face in a serious bicycle accident, which required multiple surgeries.  He was transferred to Fort Benning, Georgia in July 1994.

5.  The applicant was promoted to the rank of colonel on 1 February 1995 and in March 1995, he was transferred to Fort Hood, Texas to assume command of a mechanized infantry brigade.  He successfully completed his command tour and was transferred back to the Pentagon in February 1997, for duty in DCSOPS.

6.  He was promoted to the rank of brigadier general on 1 December 1998 and was transferred to Germany for duty as the Assistant Division Commander (Support) of the 1st Infantry Division.

7.  On 30 July 1999, he was transferred to West Point for duty as the Commandant of Cadets.  He was promoted to the rank of major general on 1 July 2002 and was transferred to Hawaii to assume command of the 25th Infantry Division.

8.  In April 2004, he deployed to Afghanistan with his division and assumed the role of Commanding General of Combined Joint Task Force -76 (CJTF-76), Operation Enduring Freedom.

9.  In May 2005, the applicant was nominated for promotion to the rank of lieutenant general and on 2 June 2005, the Department of the Army Inspector General (DAIG) received an anonymous letter alleging improprieties by the applicant.  The complainant alleged the applicant abused his authority, verbally abused and harassed subordinates, displayed favoritism to certain female subordinates, protected a known alcoholic subordinate, and created a negative work environment that violated acceptable work standards of integrity and conduct.  During the course of the investigation, an allegation that the applicant had committed adultery was added.  Meanwhile, the applicant was reassigned duty as the Special Assistant to the Commanding General, United States Army Pacific.

10.  The investigating official interviewed 25 individuals, including the applicant, who admitted that he had sexual intercourse with a civilian female working in his Headquarters, Bagram Air Force Base, Afghanistan.  The civilian female testified 


that she had sexual intercourse with the applicant four times, twice in Germany, once in Romania and once in Pakistan.  Witness testimony further indicated that the applicant had an inappropriate relationship with a female sergeant first class (SFC) in Kandahar, Afghanistan.  Both the applicant and the SFC admitted that she had visited his quarters twice.

11.  The investigating official concluded the investigation and opined that the allegations the applicant had committed adultery, that he had failed to treat Soldiers with dignity and respect, and that the applicant engaged in inappropriate relationships were substantiated.  The allegation that the applicant failed to take appropriate action regarding subordinate misconduct was unsubstantiated. 

12.  On 19 September 2005, nonjudicial punishment was imposed against the applicant for wrongfully having sexual intercourse with a woman who was not his wife on at least four occasions.  His punishment consisted of a forfeiture of $2,500.00 and a written reprimand.  The applicant did not appeal his punishment but did submit matters in consideration in which he stated that his misconduct was inexcusable and that he was ashamed of himself.  He assured the commanding general that he would not repeat the misconduct and requested that he be afforded a meaningful opportunity for personal and professional redemption.  The applicant also received his memorandum of reprimand that was to be filed with his record of proceedings of nonjudicial punishment (DA Form 2627).

13.  On 27 September 2005, the applicant submitted a request for voluntary retirement to be effective 1 February 2006.

14.  On 8 November 2005, the applicant was notified The Secretary of the Army directed that his retirement application be forwarded to the Army Grade Determination Review Board (AGDRB) for a recommendation as to the highest grade in which he served satisfactorily for retirement purposes.  The applicant was afforded the opportunity to submit additional written material that he wished the board to consider and his civilian counsel submitted a legal brief and additional third party statements in the applicant's behalf.

15.  On 13 December 2005, the AGDRB, which consisted of three lieutenant generals, convened to consider his case and to make recommendations.  The AGDRB determined there was no evidence of misconduct before his promotion to major general.  The Secretary of the Army directed that the applicant be retired in the rank of brigadier general/O-7.



16.  Accordingly, he was honorably released from active duty on 31 January 2006 and was placed on the Retired List in the rank of brigadier general/O-7 effective 1 February 2006.  He had served 33 years, 7 months and 24 days of total active service.

17.  The applicant provides a memorandum from a staff psychiatrist at Tripler Army Medical Center, Hawaii, which indicates the applicant was first seen in August 2005 and he has continued treatment since that time.  The psychiatrist further opines that the applicant has been diagnosed with Bipolar II Disorder and he is currently on medications.  The psychiatrist goes on to state that Bipolar II Disorder was a major factor in his poor decision making in his personal life which led to his retirement at a reduced rank.  He also opines that he developed the hypomanic phase of the disorder triggered by the antidepressant Citalopram, which was prescribed by the division surgeon at the time the applicant was complaining of being unable to sleep.  He continues by stating that this hypomania led to feelings of invincibility that he could not be caught or would not be turned in.  Thus his judgment regarding actions in his personal life was impaired which led to his risk taking behavior despite knowing the consequences.  Additionally, he opines that the head injury and coma suffered in April 1994 helped to trigger the mood disorder as the cycles started and he had increased periods of depression and self-doubt after the accident. 

18.  Army Regulation 15-185, Army Board for Correction of Military Records (ABCMR), provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for correction of a military record.  It provides, in pertinent part, that the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  A panel consisting of at least three ABCMR members will consider each application that is properly brought before it.  The panel members may consider a case on the merits in executive session or may authorize a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

19.  Title 10 of the United States Code, section 1370 (10 USC 1370) provides the legal authority for retirement in the highest grade held satisfactorily for commissioned officers.  It states, in pertinent part, that a commissioned officer above the grade of major who retires under any provision of law shall be retired 


in the highest grade in which they served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 3 years.  

20.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) generally states that a grade determination will be based on the Soldier's overall service in the grade in question, either on active duty or other service qualifying the Soldier for service/physical disability retirement, receipt of retired pay, or separation for physical disability.  It also provides, in pertinent part, that circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the grade at which the misconduct was committed.

21.  Paragraph 2-5 of this same regulation provides, in pertinent part, that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was expressly for prejudice or cause, was owing to misconduct, caused by NJP pursuant to Article 15 of the UCMJ, or the result of the sentence of a court-martial.  One specific act of misconduct may or may not form the basis for a determination that the overall time served in that grade was unsatisfactory regardless of the period of time served in grade.  This regulation further states that if service in the highest grade held was unsatisfactory, the Soldier can be deemed to have served satisfactorily in the next lower grade actually held.

22.  Bipolar Disorder is a psychiatric diagnosis that describes a category of mood disorders defined by the presence of one or more episodes of abnormally elevated mood clinically referred to as mania or, if milder, hypomania.  Hypomania is generally a less extreme state than mania and people in the hypomanic phase generally experience fewer symptoms than those in a          full-blown manic episode.  Bipolar II Disorder is characterized by hypomanic episodes rather than actual manic episodes, as well as at least one major depressive episode, and there has never been a manic episode or mixed episode.  Hypomanic episodes do not go to the full extremes of mania (i.e. do not usually cause severe social or occupational impairment and without psychosis), and this can make Bipolar II Disorder more difficult to diagnose, since the hypomanic episodes may simply appear as a period of successful high productivity and is reported less frequently than a distressing depression.

DISCUSSION AND CONCLUSIONS:

1.  While it is not disputed that subsequent to his misconduct the applicant has been diagnosed as suffering from Bipolar II Disorder, there is insufficient 


evidence to establish that at the time of his repeated misconduct the applicant did not understand the difference between right and wrong or that he could not adhere to the right.

2.  As a commander, he was responsible for setting the example in his command and he violated the trust placed in him at the time as a commissioned officer and a senior Army leader.

3.  The applicant contends that his Bipolar II Disorder and the prescription drug "Celexa" adversely affected his ability to make appropriate choices, understand the consequences of bad ones, and to fully appreciate the ramifications of his actions.  However, there is insufficient evidence to convincingly establish that such was the case.

4.  This is especially true since the DAIG investigation that was conducted revealed the applicant had an adulterous affair with a civilian employee in his headquarters in Afghanistan, and in each instance in which he had sexual intercourse (four times) with the employee, it was always in countries other than Afghanistan (Germany, Romania and Pakistan), which suggests that he was attempting to hide his misconduct and further suggests that he was aware that what he was doing was wrong. 

5.  It is further noted that while the applicant did perform exemplary service to his nation throughout his career, his misconduct occurred while serving as a commander in the rank of major general.  Given the nature of his misconduct and all of the available evidence and circumstances in this case, it appears that the applicant was properly retired in the rank of brigadier general/O-7. 

6.  Although the applicant requested a personal appearance before the Board, there is no statutory or regulatory right to a formal hearing.  The applicant has provided insufficient evidence to show how a personal appearance would provide the Board with additional evidence that could not have been provided with this application.

7.  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 or justify a personal appearance.



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.



      _______ _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)                                         AR20080016924



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ABCMR Record of Proceedings (cont)                                         AR20080016924



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