IN THE CASE OF:	  

		BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120003394 


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 reversal of the Army Grade Determination Review Board (AGDRB) decision and placement on the Retired List in the rank/grade of captain (CPT)/O3.

2.  The applicant states:

   a.  He has a mandatory retirement date of 1 August 2012.
   
   b.  Almost 5 years ago, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), and subsequently was successful in having the NJP filed on his restricted fiche.  Based on this isolated act of minor misconduct, the AGDRB has decided to retire him in the rank/grade of first lieutenant (1LT)/O2.  He respectfully requests that this decision be reversed as it would be a grave injustice to him and his family.
   
   c.  Although the misconduct occurred while he was serving in the rank/grade of CPT, he continued to served as an active duty officer in that grade well beyond the incident as previously stated for almost 5 years.  All of his official evaluations were superb and his senior officer chain of command at the installation level provided affirming support that he should remain on active duty and be allowed to retire in his current grade of CPT.
   
   d.  There were no subsequent acts of misconduct nor did he have any prior occurrences.  CPT truly is the grade that he has both held and served successfully in longer than any other rank during his 20-year career.
	e.  Army Regulation 15-80 (AGDRB and Grade Determinations), 
paragraph 2-4 states, "Generally, determination will be based on the Soldier's overall service in the grade in question."  In accordance with paragraph 2-5(c), that states, "One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory."  He feels the decision made by the AGDRB was unjust for numerous reasons.  He feels the Army gave him the opportunity to prove himself deserving by retaining him and allowing him to serve until retirement, for which he has been able to do with exceptional results according to his officer evaluation reports (OERs).  

   f.  His wife has forgiven him for his past transgression and they have built the most amazing marriage through their commitment to each other and their vows they made to one another.  The AGDRB's decision not only affects him, but it also significantly impacts the lives of his wife of 19 years and his family who has stood beside him through numerous deployments and his entire military career.  His career is also their career and he feels this decision, although not meant to, will continue to punish them monetarily for an error in judgment he made many years ago.

3.  The applicant provides:

* Officer Record Brief
* five OERs (July 2007 to September 2011)
* Initiation of Officer Elimination termination memorandum
* email correspondence pertaining to AGDRB determination
* 2012 retirement orders
* 11 letters in support of his retiring in the rank/grade of CPT

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he was appointed in the Regular Army, Aviation Branch, as a second lieutenant, on 13 April 2000, with prior enlisted service.  He was promoted to 1LT on 13 January 2001 and to CPT on 1 September 2003.

2.  On 24 July 2007, he accepted NJP under Article 15, UCMJ, for:

* as a married man, wrongfully having sexual intercourse with a Soldier, a woman not his wife, between 10 to 19 June 2007
* knowingly fraternizing with same Soldier, an enlisted person, on terms of military equality between 10 to 19 June 2007

3.  He did not appeal the punishment.  The Commanding General directed the filing of the Article 15 in the performance portion of the applicant's military personnel file.

4.  On 1 July 2007, the Commanding General, Headquarters, 25th Infantry Division, approved the applicant's relief from command as a result of a Commander's Inquiry clearly showing the applicant had sexual relations with a female Specialist under his command on 3 occasions.

5.  On 26 September 2007, he was issued a relief-for-cause OER for the period 30 January to 9 July 2007 for his duties as a company commander of an Attack Reconnaissance Battalion Task Force's Aviation Unit Maintenance Company deployed to Operation Iraqi Freedom (OIF) in support of the 25th Infantry Division.  

6.  On 15 January 2009, a Report to Suspend Favorable Personnel Actions (FLAG) was initiated against the applicant for elimination or removal from the promotion selection list. 

7.  On 11 March 2009, the applicant submitted a rebuttal to initiation of elimination and submitted 8 letters in support of his retention.

8.  On 24 March 2009, the Commanding General, U.S. Army Combined Army Center and Fort Leavenworth, KS, recommended the applicant be retained on active duty.  

9.  On 28 April 2009, the elimination action against the applicant was terminated and the FLAG was favorably closed.

10.  On 21 April 2010, the applicant acknowledged receipt of notification of his Mandatory (Involuntary) Retirement Date of 1 August 2012.

11.  On 24 June 2010, a FLAG was initiated against the applicant for elimination or removal from the promotion selection list.  

12.  On 2 November 2010, he was advised that he was identified by the 2010 Promotion Selection Board to show cause for retention because of misconduct, moral, or professional dereliction.  He submitted a rebuttal on 19 November 2010 and 3 letters in support of his retention.

13.  The FLAG was favorably closed on 2 January 2011.

14.  On 12 January 2011, the Commanding General, U.S. Army Combined Army Center and Fort Leavenworth, KS, recommended the show cause action be terminated and the applicant be retained on active duty.

15.  On 28 February 2011, he requested transfer of the Article 15 to the restricted portion of his official military personnel file (OMPF)

16.  On 19 May 2011, the DA Suitability Evaluation Board approved the transfer of the Article 15, dated 30 July 2007, and all related documents, to the restricted portion of the applicant's OMPF.

17.  On 2 November 2011, the Commanding General, U.S. Army Human Resources Command, notified the applicant of the decision to terminate elimination processing in his case.  In accordance with Title 10, U.S. Codes, section 632a(3) and Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 5, paragraphs 5-9a and 5-9a(2), officers who are twice non-selected for promotion and are within 2 years of retirement will remain on active duty until retirement eligible.  As such, his MRD would be 31 August 2012.

18.  On 23 November 2011, the AGDRB reviewed the voluntary retirement submitted by the applicant and request for grade determination submitted by HRC.  The AGDRB directed, if his retirement was approved, he be placed on the retired list in the grade of 1LT/O2, and the Deputy Assistant Secretary of the Army (Review Boards) approved the action.

19.  In an email, dated 26 November 2011, he was notified of the AGDRB's decision.

20.  Orders 362-0022 issued by U.S. Army Combined Arms Center and Fort Leavenworth, on 28 December 2011, retired the applicant from active duty in the grade of 1LT with an effective date of 31 July 2012, and placed him on the retired list on 1 August 2012.  He was credited with completing 20 years of active Federal service.

21.  He provides copies of 5 OERs between the period 10 July 2007 and 1 September 2011, wherein he received "Outstanding Performance, Must Promote" and "Best Qualified" assessments.

22.  He also provides 11 letters in support of his request wherein the individuals stated their support of allowing the applicant to retire in the grade of CPT.  All believed that it had been over 4 1/2 years since the applicant's misconduct and the applicant had proven why he deserved to retire in his current grade.  His OER's and support from his chain of command spoke volumes including the support of the former Combined Arms Center Commanding General.  He and his family had already paid a high price for his misconduct.  The applicant had not only served satisfactorily in his current grade, but he was serving exceptionally well in a MAJ's position.  It was strongly recommended the Board overturn the AGDRB's decision.

23.  Army Regulation 15-80 prescribes the policies of the AGDRB.  The regulation states the Board will make a determination of the highest grade served in satisfactorily.  Service in the highest grade will be considered to have been unsatisfactory when reversion to a lower grade was:  owing to misconduct, cause, by NJP, or the result of the sentence of a court-martial.

24.  Title 10, U.S. Code, section 1370(a) states that unless entitled to a higher retired grade under some other provisions of law, a commissioned officer of the Army who retired under any provision of law other than chapter 61 or chapter 1223 of this title shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the Army, for not less than 6 months.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to CPT effective 1 September 2003.  He was punished under Article 15 on 24 July 2007 for having an inappropriate sexual relationship with a junior enlisted Soldier under his command.  As a result, he was relieved of his command and issued a relief-for-cause OER.  

2.  Between January 2009 and June 2010, he was notified of his identification to show cause for retention on active duty.  On 19 May 2011, the DASEB approved the transfer of the NJP to the restricted portion of his OMPF.  On 2 November 2011, elimination processing against him was terminated.  

3.  On 10 May 2012, the Deputy Assistant Secretary of the Army (Review Boards) approved his placement on the retired list in the grade of 1LT.  HRC issued orders retiring him accordingly effective 31 July 2012.

4.  His contentions have been noted and found not to have merit.  The applicant as a company commander, was required to set high personal and professional standards of conduct.  His conduct which resulted in the NJP raised serious questions about his judgment, self-discipline, and integrity.  His actions led to his relief from command and the initiation of elimination processing.  With the support of his command, he was retained and allowed to retire.  Based on the seriousness of his misconduct, he failed to serve satisfactorily in the grade of CPT for retirement purposes.

5.  He did not provide sufficient evidence or a convincing argument to support his request.  There is insufficient evidence to show his placement on the retired list in the grade of 1LT was inaccurate, unjust, flawed, or improper.  Therefore, he is not entitled to the requested relief.

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)                                         AR20120003394





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ABCMR Record of Proceedings (cont)                                         AR20120003394



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