IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100020433 


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:

The applicant defers his request and statement to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for correction of his records as follows:

* Removal of a General Officer Memorandum of Reprimand (GOMOR), dated 25 April 2007, from his official military personnel file (OMPF)
* Removal of the Secretary of the Army's (SA) Letter of Censure, dated 30 July 2007, from his OMPF
* Reissuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing his rank/grade as lieutenant general (LTG)/O-9
* Back pay and allowances of the difference in retired pay between a major general (MG)/O-8 and LTG/O-9 from 17 May 2008

2.  Counsel provides a background of the events that led to the death of Corporal (CPL) PT on 22 April 2004 in Afghanistan, including the tactical situation and describes the events, including various investigations, that occurred subsequent to his death.  Counsel essentially argues the following:

* There is no legal authority to file the GOMOR in the applicant's OMPF
* Due process provisions of Army Regulation 600-37 (Unfavorable Information) were violated
* 
The reprimand and censure were materially inaccurate
* The doctrine of finality governed the applicant's retirement and retired grade

3.  Counsel provides a binder consisting of 23 tabs that are identified in his petition and which are incorporated into these Proceedings.

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 ABCMR in Docket Number AR20100014122 on 8 July 2010.

2.  The applicant did not provide any new documentary evidence; however, he contended some of his issues were not previously addressed and provided a new argument, which was not previously considered by the ABCMR.  Therefore, this application warrants reconsideration by the Board.

3.  The applicant's records show he graduated from the U.S. Military Academy and he was appointed as a second lieutenant in the Regular Army.  He executed an oath of office on 3 June 1970.  He served in various staff and leadership positions within and outside the continental United States.  He was promoted to MG on 1 December 1998.  He was further promoted to LTG and assumed command of the U.S. Army Special Operations Command (USASOC) on           22 August 2002.

4.  On 22 April 2004, a friendly fire incident occurred in Afghanistan, which ultimately led to the GOMOR.

	a.  A platoon of the 75th Ranger Regiment was conducting operations in Afghanistan.  The platoon ground assault convoy was split into two groups, wherein one group traveled down a canyon road without incident and arrived in the vicinity of a village.  A sergeant in the second group ordered a change in the planned route and proceeded down the same canyon road as the first group had traveled.

	b.  While traveling down the road, the second group came under enemy attack.  In response, Soldiers of the first group positioned themselves on an elevated spur overlooking the canyon road and provided suppressive fire along the canyon walls.  Soldiers of the second group misidentified the suppressive fire for enemy fire and directed fire toward the muzzle flashes.  CPL PT and an Afghani soldier were killed.  Additionally, an officer and enlisted Soldier were wounded.
	c.  The initial casualty report indicated CPL PT’s death was the result of enemy action.  By the following day, the local command suspected his death was by friendly fire.  However, no action was taken to report the suspicion through the chain of command or to the Army Safety Center.  Two command investigations were subsequently convened, the first by the battalion commander and the second by the regimental commander.

	d.  The DOD Inspector General (DODIG) later found the two investigations were tainted by the failure to preserve evidence, lack of thoroughness, failure to pursue logical investigative leads, and conclusions that were open to challenge based on the evidence provided.

		(1)  With the advice of his legal advisor, the first investigating officer (IO) withheld information concerning the suspected fratricide from medical examiners that raised questions based upon anomalies they discovered during the deceased Soldier's autopsy.

		(2)  The first two investigations lacked credibility and contributed to perceptions that Army officials were purposefully withholding key information concerning CPL PT's death.

	e.  A third Army investigation was convened by the applicant at the direction of the Assistant Secretary of the Army (Manpower and Reserve Affairs) [ASA (M&RA)].  After consulting with the Director of the Army Staff and the Army IG, the applicant appointed a subordinate general officer assigned to his command (Brigadier General (BG) GJ to conduct an investigation.  The IO was to develop a timeline of events when the nature of the fratricide incident became known at various levels of the chain of command, include copies of relevant reports made to and by the chain of command, and determine whether any responsible command knew or was aware of any reluctance to report the true facts of the incident before October 2004.  The IO conducted 60 interviews, including 26 of the 40 Army Rangers who were present at the scene on 22 April 2004 and the applicant on two occasions.  The IO's completed report was reviewed by the applicant's legal advisor who concluded it was legally sufficient.

	f.  Each of the three Army investigations concluded CPL PT died as a result of fire from U.S. Soldiers.  Although the immediate chain of command was aware that fratricide was suspected the day following the incident, the regimental commander kept information concerning the circumstances of the Soldier's death "close hold" until investigative results were finalized.  In addition, no supplemental reports were submitted to correct initial reports that the Soldier's death was caused by enemy fire.  Meanwhile, CPL PT's family was not notified of 

the investigation and subsequent fratricide determination until 35 days after the Soldier's death despite the regulatory requirement that the next of kin (NOK) be advised of additional information concerning a service member's death as information becomes available.

5.  On 26 January 2006, by memoranda to the President of the United States, Vice President of the United States, and the Speaker of the House, the former Secretary of Defense (SecDef), Mr. DHR, certified the applicant had served satisfactorily on active duty in his current grade and approved his retirement and advancement to the grade of LTG on the Retired List. 

6.  The applicant retired from the Army on 31 January 2006 and he was placed on the Retired List in the retired rank/grade of LTG/O-9.  The DD Form 214 he was issued shows he entered active duty this period on 3 June 1970 and he was honorably retired on 31 January 2006.   He had completed 35 years, 7 months, and 28 days of total active service.  Item 4a (Grade, Rate or Rank) shows "LTG"; item 4b (Pay Grade) shows "O09"; and item 12h (Effective Date of Pay Grade) shows "2002  08  02."

7.  He was awarded the Distinguished Service Medal for exceptionally meritorious service in a duty of great responsibility for the period 29 August 2002 to 31 January 2006.

8.  At some point, the Army IG requested an additional investigation be conducted by the DODIG after CPL PT's family continued to voice concern about information that they had been provided.

9.  The investigation sought to determine whether investigations were adequate, the Army's notification of the NOK complied with regulations, and documentation to justify posthumous award of the Silver Star for CPL PT was accurate.  [The applicant was interviewed on 8 December 2006].

10.  The investigation concluded, in part, that the applicant provided misleading testimony to the third IO and the Office of the DODIG when "he denied that he knew friendly fire was suspected before the memorial service for CPL PT on 3 May 2004.”  The DODIG recommended that the Acting SA take appropriate action with respect to officials identified in the DODIG report as accountable for regulatory violations and errors in judgment.

11.  A DODIG Report of Investigation (ROI), dated 26 March 2007, shows a review of matters related to the death of CPL PT was initiated at the request of the Army IG:

	a.  The ROI found the applicant knew of the suspected fratricide before he departed for the memorial service and misrepresented his knowledge in that regard and that as the commander with administrative control over the
75th Ranger Regiment he was accountable for failing to notify the primary NOK as soon as he reasonably suspected friendly fire.

	b.  Footnote 2 indicates that based on the initial Army investigations some of the service members involved in the incident received non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for dereliction of duty.

	c.  Footnote 15 indicates, "[s]ince completion of BG GJ's investigation now required him to examine the conduct of LTG [applicant's name] (a person senior to him and also the appointing authority for the investigation), BG GJ was obliged to bring the matter to the attention of Army leaders at a level of command above LTG [applicant's name]."

12.  On 26 March 2007, the Acting SA submitted the DODIG ROI to General (GEN) WSW (CG, Training and Doctrine Command (TRADOC)) for disposition of any identified shortcomings requiring disciplinary or administrative action.  The Acting SA directed him to "review the DODIG ROI related to the death of CPL PT and take appropriate action, if any, with respect to the officers identified therein."

13.  On 25 April 2007, GEN WSW reprimanded the applicant for conduct that fell short of that expected and demanded of the Army's general officer corps. Specifically, the GOMOR stated:

	a.  On 29 November 2004, only seven months after CPL PT's death, the applicant made a false sworn statement to BG GJ when he told him that the first time he heard about the possibility of CPL PT's death by friendly fire was from Colonel (COL) KKC on or about 3 May 2004 when they both were in San Jose, CA, for the memorial service.  He also made another false statement on
9 December 2004 when he told BG GJ that he did not see a 29 April 2004 "Personal For or P4" message from LTG (MG at the time) SM addressed to him until after 3 May 2004.

	b.  The preponderance of evidence persuaded GEN WSW that at the time the applicant made the statements, he did not believe them to be true.  He perpetuated this falsehood during the DODIG interview almost 2 years later and repeated what he told BG GJ regarding when he first knew that fratricide was suspected.  He also failed to notify the Acting SA that CPL PT's death was "highly probable" the result of friendly fire as he was urged to do so by LTG SM 

in the P4 message that he received on 30 April 2004.  Had he done so, the award of the Silver Star could have been delayed until the investigation was complete.

	c.  As an Army commander, he had a duty to inform CPL PT's family of the initiation of an investigation prior to the memorial service.  His failure to do so resulted in much of the mistrust felt by the family.  Additionally, his failure to disclose an ongoing investigation to his staff deprived him of their expertise. While it may have been reasonable to keep the fratricide investigation close hold, when he chose to lie about what he knew to avoid personal responsibility for his actions, he crossed a line that demanded serious rebuke.  Integrity was the heart of the issue and his failure in this regard violated the special trust and confidence reposed in him by virtue of his rank and position. 

14.  On 23 May 2007, the applicant submitted his written response to the GOMOR for consideration by the imposing officer and, on 29 May 2007, GEN WSW reviewed the reprimand and the applicant's rebuttal.  After consideration of the matters presented, GEN WSW directed that the GOMOR be filed in the applicant's OMPF.

15.  On 30 July 2007, the SA, based upon the DODIG investigation and the GOMOR, and adopting GEN WSW's assertion that the applicant intentionally lied to investigators, imposed a Secretarial Censure.  The Acting SA stated:

You are hereby censured for your conduct and failure of leadership in matters relating to the investigation and reporting of the death of CPL PT.  As the Commanding General of USASOC, you were the senior military officer in the administrative chain of command for the 75th Ranger Regiment, the unit to which CPL PT was assigned at the time of his death.  You and Soldiers under your command failed to follow Army and DOD policy and regulation in the investigation and conduct of the administrative duties in the case of a fratricide.

16.  On 30 July 2007, by memorandum, the SA directed the Office of the ASA (M&RA) to convene the Army Grade Determination Review Board (AGDRB) to recommend the highest grade in which the applicant served satisfactorily for the purpose of retirement.

17.  On 8 August 2007, the applicant was notified he was being considered for an AGDRB convened by the SA.  

18.  On 6 October 2007, the applicant personally appeared before the AGDRB.  The AGDRB unanimously recommended he be retired in his current grade on the basis of their conclusion that he had served satisfactorily in the grade of LTG.

19.  Subsequent to the AGDRB recommendation, by memorandum to the SecDef, the SA detailed the events that occurred since the applicant's retirement. After considering the DODIG report, GEN WSW's review, the letter of censure, the AGDRB recommendation, and his own personal interview with the applicant, the SA concluded the applicant did not serve satisfactorily in the grade of LTG.  In view of this determination, the SA recommended to the SecDef that he withdraw the certification of satisfactory service issued by the previous SecDef on 26 January 2006 prior to the applicant's retirement on 31 January 2006.  The SA added that in the event the certification of satisfactory service was withdrawn, he recommended no action be taken to recoup from the applicant the aggregate difference in retired pay he had received since his retirement in the grade of LTG on 1 February 2006 and his entitlement to retired pay at a lesser amount following withdrawal of such certification. 

20.  On 16 May 2008, the SecDef sent a memorandum to the President of the United States, Vice President of the United States, and Speaker of the House wherein he stated that he had withdrawn the previous certification of satisfactory service for the applicant that the previous SecDef signed and approved for the applicant's retirement in the grade of LTG.  The evidence presented after his retirement showed he committed significant improprieties during his service as a LTG and those improprieties were incongruent with the previously issued certification.  

21.  On 22 August 2008, an official at the General Officer Management Office (GOMO) notified the applicant of the SecDef's decision to remove the certification of satisfactory service, to change his retired rank/grade from LTG/O-9 to MG/O-8, and to adjust his retired pay.

22.  On 14 August 2008, a DD Form 215 (Correction to DD Form 214) was issued and changed the applicant's DD Form 214 as follows: 

	a.  item 4a to show "MG" and item 4b to show "O08."

	b.  item 18 (Remarks) by adding "PER SECRETARY OF DEFENSE DIRECTIVE, OFFICER IS AUTHORIZED TO RETAIN THE RETIRED PAY HE RECEIVED FOLLOWING RETIREMENT ON 1 FEBRUARY 2006 IN THE GRADE OF LIEUTENANT GENERAL (O-9) UNTIL 16 MAY 08.//NOTHING FOLLOWS."

23.  Counsel provides the following documents:

	a.  The applicant's declaration wherein he states that he did not lie or intentionally misrepresent the facts to anyone.  He cooperated with the investigation and provided answers to the best of his knowledge and recollection. On both occasions he was interviewed by the IO, he provided answers to the best of his recollection and he was never notified that he was suspected of providing false information and he was never read his rights under Article 31(b), UCMJ.  A polygraph examination that he was administered demonstrated he was not intentionally lying; but rather, he was sincere in his apparently mistaken belief of when he learned of the P4 message that provided notification of the likelihood of CPL PT's death by friendly fire.  He also stated he was denied his right to due process because he was only provided portions of the investigation that supported adverse action; he was not provided the portions of the report that argued against such action.  He concluded the AGDRB apparently agreed he served satisfactorily in the rank of LTG as they unanimously recommended he retain his retired rank of LTG.

	b.  A letter of support, dated 23 August 2007, from BG HWY, the applicant's deputy at the time of the incident, wherein he states he believes the applicant to be a man of the highest honor and morals.  He neither lied nor intended to deceive anyone.  His inability to recall complex facts and chronologies should not be confused with the lack of honesty.  His decision to not tell the family and wait until all the investigation was complete was a judgment call; yet not illegal, immoral, or unethical.  

	c.  A declaration by COL KKC, deputy commander of the 75th Ranger Regiment, wherein he states he recalls the applicant telling him about the fratricide investigation during the memorial service although the applicant stated otherwise.  Nevertheless, he has no reason to believe the applicant would intentionally deceive anyone.  Additionally, the applicant dealt with a volume of details of equal and greater importance than the death of CPL PT, which could have diminished the recollection of events surrounding CPL PT's death.

	d.  A declaration from Lieutenant Colonel (LTC) DD who stated he recalls delivering the P4 message in question to the applicant by hand, does not remember the exact date, but is confident it was done on the same date as that shown on the face of the message itself.  His recollection of events remains the same today although he has no reason to believe the applicant intentionally deceived anyone. 

	e.  A report of polygraph examination, dated 23 August 2007, conducted to substantiate the applicant's denial of lying during an investigation concerning circumstances surrounding the death of CPL PT, and a resumé of TCW, the Polygraph Examiner/Investigator.  During the polygraph examination the applicant responded in the negative when asked "Did you deliberately lie to Special Agent G regarding when you first saw the P4?" and "Did you read that
29 April 2004 P4 before CPL PT's memorial service?"  The polygraph examiner's opinion was that the applicant was truthful in his above responses.  Mr. FB, a certified polygraph examiner, was also present at the time.  He reviewed the polygraph charts and related materials and concurred with the examiner's opinion regarding the applicant's responses to the questions.

	f.  Declaration from BG CC, the applicant's former chief of staff, wherein he states he acknowledges a meeting was held between the applicant and BG HWY without his presence.  He had no reason to believe either officer intentionally deceived anyone in connection with this matter.  He opines the applicant is a truthful person and reliable with a high degree of integrity.

	g.  An article describing the complex command relationship with the USASOC. 

	h.  An undated declaration by Mr. GTS, Deputy Director and Chief of Operations in the Army Compartmented Element for USASOC during the time of the incident, states he received telephonic notification of the incident and the supporting casualty report on 22 April 2004.  He immediately initiated the sensitive activities operational reporting and casualty reporting processes.  His best recollection is that he first learned the Soldier's death was a suspected fratricide on 24 April 2004 after being informed by his intelligence section.  He queried the joint operational headquarters that provided the initial report for a change in status report; however, none was generated to change the "Inflicting Force" from "Enemy Forces" to either "Allied Forces," "U.S. Forces," or "Unknown."  Therefore, he states the applicant had no official basis on which to advise the NOK that fratricide was suspected.

	i.  Transcripts of the IO's interviews with the applicant on 29 November (11 pages) and 9 December 2004 (5 pages).  The applicant was advised of the purpose of the Army Regulation 15-6 investigation and administered the oath on 29 November 2004.  He was reminded that he was still under oath on
9 December 2004.  The applicant stated the first time he was told the incident that occurred on 22 April 2004 was a possible fratricide was on the day of the memorial service (4 May 2004) and that COL KKC, the Regimental Deputy Commanding Officer, told him.  The applicant commented, "This should not be given to the family because it's speculative at best at this point."  The applicant also stated the first time he saw the P4 message was after the memorial service.

	j.  DODIG, Tape Transcription of the Interview of the Applicant (11 pages), dated 8 December 2006.  He acknowledged that while he was at the memorial service for CPL PT he was aware of rumors that the Soldier's death was due to friendly fire; however, he did not discuss the matter with the NOK.  He stated that he was not advised to keep the fact that friendly fire was suspected quiet until the investigation was complete.  He added that we [Army officials] do not talk about ongoing investigations.  He also offered that those involved did not know the public law reporting requirements regarding incidents of friendly fire or the policy to notify the Army Safety Center.  [The interview also discusses processing of the Silver Star award recommendation pertaining to the deceased Soldier.]

	j.  U.S. Army Legal Services Agency, Arlington, VA, memorandum, dated
26 November 2007, Subject:  Request for Litigation Division Comment - Litigation Risk of Rescinding LTG (Retired) [Applicant's Name] Retirement Grade Determination and Legal Review of Whether the Secretary of Defense May Rescind LTG (Retired) [Applicant's Name] Final Grade Determination.  This is a 35-page document that is essentially entirely redacted.

	k.  Memorandum, dated 22 August 2008, from GOMO, that shows the Chief, GOMO, formally notified the applicant that the SA approved his retirement in the rank of MG after the SecDef withdrew the Title 10, U.S. Code, section 1370, certification on 16 May 2008 indicating that he had served satisfactorily in the rank of LTG.  The applicant was provided a DD Form 215 and orders amending his retired rank/grade.  [The DD Form 215 did not change/correct the applicant's effective date of pay grade.]

   l.  A digital video disk (DVD) that is approximately 10 minutes in length of the House Committee on Oversight and Government Reform held on 24 April 2007 into the events following the death of CPL PT.  Appearing before the committee were the brother of the deceased Soldier, the former SecDef DHR, former Chairman of the Joint Chiefs of Staff General RM, former Commander of Central Command GEN JA, and former Commander of the Joint Special Operations GEN BDB.

		(1)  The commentator on the DVD states military officials used some variation of the phrase, "I don't recall" a total of 82 times.

		(2)  Towards the end of the video a member of the committee asks "I believe this is appropriately handled and those who made errors were held 

accountable.  …and these folks were held accountable.  Is that correct GEN M, General, all Generals?"  While not visible on the video, a response is heard which sounds like the voice of GEN M, "From what I understand, that is correct."

	m.  Extract from DA Pamphlet 27-50-138. 

24.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  This regulation or any part of it may be made applicable to investigations or boards that are authorized by another directive, but only by specific provision in that directive or in the memorandum of appointment.  Chapter 2 (Responsibilities of the Appointing Authority), paragraph 2-1 (Appointment), subparagraph c (Who may be appointed), states that investigating officers and board members shall be those persons who, in the opinion of the appointing authority, are best qualified for the duty by reason of their education, training, experience, length of service and temperament.  An IO or voting member of a board will be senior to any person whose conduct or performance of duty may be investigated, or against whom adverse findings or recommendations may be made, except when the appointing authority determines that it is impracticable because of military exigencies.  Inconvenience in obtaining an IO or the unavailability of senior persons within the appointing authority's organization would not normally be considered military exigencies.

25.  Army Regulation 600-37, effective 20 January 1987, applies to all officer and enlisted personnel in the Active Army, Army National Guard (ARNG), and the USAR.

   a.  It sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  The objectives of this regulation are to apply fair and just standards to all Soldiers, protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility; prevent adverse personnel action based on unsubstantiated derogatory information or mistaken identity; provide a means of correcting injustices if they occur; and ensure that Soldiers of poor moral character are not continued in the service or advanced to positions of leadership, trust, and responsibility.

	b.  Chapter 3 (Unfavorable Information in Official Personnel Files), paragraph 3-2 (Policies), provides that except as indicated in paragraph 3-3 (Filing of information exempt from the filing process), unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, or to decline, in writing, to make such a statement.  This statement may include evidence that rebuts, explains, or mitigates the unfavorable information.  The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in official personnel files.  Unfavorable information filed in official personnel files must meet Privacy Act standards of accuracy, relevance, timeliness, and completeness.  Unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity.

	c.  Paragraph 7-2 (Policies and standards) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 

26.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  It states only those documents listed in Table 2-1 and Table 2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Table 2-1 (Composition of the OMPF) provides guidance for filing administrative letters of reprimand, admonitions, and censures of a non-punitive nature.  It states, in pertinent part, that the letter, referral correspondence, member's reply, and other allied documents (if they are specifically directed for file by the letter or referral correspondence) will be filed on the performance section of the OMPF.  All other allied documents not listed will be filed in the restricted section of the OMPF.

27.  Army Regulation 600-8-24 (Officer Transfers and Discharges) provides policies and procedures governing the transfer and discharge of Army officer personnel.  Chapter 6 (Retirements), paragraph 6-8 (Retirement status), provides that a Regular Army officer placed on the retired list continues to be an officer of the U.S. Army.

28.  Title 10, U.S. Code, section 802 (Persons subject to this chapter), provides that retired members of a regular component of the armed forces who are entitled to pay are subject to the UCMJ and, as such, the continuing jurisdiction of the U.S. Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows GEN WSW reprimanded the applicant on 25 April 2007.  The applicant provided a rebuttal.  The administering officer considered his rebuttal and directed it be filed in his OMPF.  Furthermore, the evidence of record shows the applicant personally appeared before the AGDRB on 6 October 2007.  His retired rank was subsequently changed from LTG to MG, effective 16 May 2008.

2.  His contention that there was no lawful authority to file the GOMOR in the applicant's OMPF is weakened by both his own written response to the reprimand and his personal appearance before the AGDRB after he retired from active duty.  More importantly, the evidence of record shows that U.S. Code and Army regulations clearly provide that a Regular Army officer placed on the retired list continues to be an officer of the U.S. Army and subject to continuing jurisdiction of the U.S. Army.  Therefore, the evidence of record clearly refutes the applicant's contention that there was no lawful authority to file the GOMOR in his OMPF.

3.  By law, retired members of a regular component of the armed forces who are entitled to retired pay are among those persons subject to the UCMJ and the continuing jurisdiction of the Army.  The Army had, and continues to have, the authority to court-martial the applicant or take any of the many adverse administrative actions short of court-martial subject only to the Statute of Limitations for the particular offense involved as contained in Title 10, U.S. Code, section 843.

4.  There is no requirement for the applicant to have been recalled to be given the GOMOR.   Engrafting a requirement that a retired member be recalled to active duty in order for jurisdiction to attach would render Title 10, U.S. Code, section 802(a)(4) entirely superfluous.

5.  With respect to the GOMOR itself, there is substantial, credible evidence establishing by the preponderance of evidence that the applicant lied about when he became aware that CPL PT's death was likely due to friendly fire.  There are no due process flaws in the administration of the GOMOR and the attendant filing determination.  Among the purposes of filing unfavorable information is protection not just of the Soldier’s interests but the Army’s as well.  Here, the applicant committed a serious integrity violation that discredited the Army in the eyes of the 

Nation.  That violation should not go unrecorded in his OMPF simply because the applicant was able to move onto the retired list prior to completion of the investigation.

6.  With respect to the issue of the IO being junior to the applicant, to the extent there was error in appointing a GO junior to the applicant to serve as the initial Army Regulation 15-6 investigating officer, the applicant was not harmed by that error.  The IO, out of respect and deference, failed to follow up on obvious inconsistencies between the applicant’s rendition of events and very specific renditions by other witnesses to the contrary. 

7.  The reason for appointing officers senior to those whose conduct may fall under scrutiny is to avoid situations where the junior, whether out of respect, admiration, loyalty, or fear of reprisal, compromises the integrity of the investigation because of the superior subordinate relationship.  Here the IO unabashedly resolved inconsistencies in the applicant’s favor.  Had the applicant been asked the same questions by a superior IO, it is reasonable to presume he would have provided the same answers.  Most importantly, the applicant is stopped from asserting his own action as a basis for relief.

8.  With respect to violation of due process, when GEN WSW issued the administrative reprimand to the applicant, he wrote "I did not consider the DODIG report as evidence; instead, I have carefully considered the supporting sworn testimony and documentary evidence collected during the various investigations." The letter also lists the specific documentary evidence and sworn statements as enclosures to the letter.  Thus, the applicant was provided all of the evidence GEN WSW used as a basis for the letter of reprimand.  

9.  Furthermore, the evidence shows the applicant was afforded the opportunity to submit a rebuttal, his rebuttal was considered, and a filing determination was made.  The evidence also shows this is the correct procedure for processing such a letter.  Therefore, the evidence shows the applicant was afforded due process.

10.  The contention that the GOMOR is factually inaccurate in that there was no evidence the applicant intentionally lied to investigators was considered.  The results of the polygraph examination that the applicant took on 23 August 2007 were reviewed.  However, GEN WSW relied upon the sworn statements of BG HWY, COL KKC, and LTC DD as a basis for his conclusion that the applicant made statements under oath that he [the applicant] did not believe to be true.  Notwithstanding the opinion rendered based on the results of the polygraph examination, a preponderance of the evidence refutes the claim that the GOMOR is factually inaccurate.
11.  With respect to his service as a LTG, the applicant's honorable, faithful, and distinguished career is not in question.  However, as a result of conduct that occurred while serving in the grade of LTG, his service was determined to be unsatisfactory.  Accordingly, he was appropriately retired in the rank of MG which is correctly shown on his records.

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 AR20100014122, dated 8 July 2010.



      __________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.
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