IN THE CASE OF:	  

		BOARD DATE:  16 October 2012

		DOCKET NUMBER:  AR20120005540 


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 correction of his records to show he retired in the rank/grade of major (MAJ)/O-4 vice captain (CPT)/O-3E.

2.  The applicant states per Army Regulation 15-80 (Army Grade Determination Review Board [AGDRB] and Grade Determinations), paragraph 2-4(e), he met the criteria for retirement in the grade he held at the time of his release from active duty in the Active Guard Reserve (AGR) program as demonstrated by his evaluation reports and awards.  The misconduct [he was convicted of] was civil in nature and was not related to his duty performance.  Therefore, the reduction of his retirement grade to O-3E is punitive in nature which is precluded by Army Regulation 15-80, paragraph 2-4(f).  He was incarcerated in Federal prison from July 2007 to November 2011.  His official records were placed in storage by his spouse in 2008 and he was unable to access them until he completed his sentence and his spouse obtained his household goods in July 2011.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a one page information sheet
* Defense Criminal Investigative Service (DCIS) report of investigation (ROI), dated 25 February 2008
* fourteen statements of support; eleven dated between 25 July and 7 December 2007 and three undated 
* four pages of email
* nine certificates
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG))
* DA Form 4187 (Personnel Action)
* two orders
* eight memoranda
* a letter
* sixteen DA Forms 67-9 (Officer Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having had prior enlisted service, the applicant's records show he was appointed as a Reserve commissioned officer in the U.S. Army Reserve (USAR) and executed an Oath of Office on 7 May 1988.  On 5 December 1993, he entered active duty as a member of the AGR program.  He served in staff and leadership positions, attained the rank of CPT on 19 August 1994, and the rank of MAJ on 27 June 2001.

3.  On 11 July 2007, in conjunction with an investigation into a criminal organization operating a commercial child pornography website, agents from the DCIS, Immigration and Customs Enforcement, and Fairfax County Police Department, executed a search warrant on the applicant's home residence.  During the search, the applicant admitted to subscribing to commercial child pornography sites and possessing child pornography images on his computers.  As a result, he was arrested and charged with attempted receipt of child pornography.  He was incarcerated at the Alexandria Detention Center, Alexandria, VA.

4.  On 12 July 2007, his duty status was changed from "present for duty" to "civil confinement."

5.  On 29 August 2007, he pled guilty and was convicted by a civilian court of one count of attempted receipt of child pornography.  He was sentenced to 60 months incarceration, 120 months of supervised release, a $3,000 fine, and a $100 special assessment.

6.  On 11 October 2007, he was notified by the Commander, USAR Command Fort McPherson, GA, that elimination proceedings were being initiated against him under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 4, for misconduct and/or moral or professional dereliction and conduct unbecoming an officer.  The commander specifically cited the applicant's guilty plea and civil court conviction of attempted receipt of child pornography.  The commander further stated if he was eliminated for misconduct or moral or professional dereliction, the least favorable discharge he could receive was an Under Other Than Honorable Conditions Discharge.  In addition, he was notified, if he was eligible, he could apply for retirement in lieu of elimination.

7.  On 14 November 2007, he consulted with legal counsel and he acknowledged that he was advised of the basis for the contemplated elimination action, the type of discharge he could receive, the possible effects of the discharge, and the procedures and rights available to him.  On 15 November 2007, he submitted a request for retirement in lieu of elimination.

8.  The AGDRB subsequently reviewed his request for retirement in lieu of elimination for misconduct and, after reviewing the circumstances and facts surrounding his request, recommended his request be approved and he be retired in the rank of CPT.

9.  On 26 March 2008, the approving authority accepted his retirement in lieu of elimination and directed he be placed on the Retired List in the rank/grade of CPT/O-3E.  On 31 May 2008, he was retired accordingly.

10.  The DD Form 214 he was issued for this period of service shows he was retired from active duty on 31 May 2008 in the rank of CPT under the provisions of Army Regulation 600-8-24, by reason of unacceptable conduct.  He completed 14 years, 5 months, and 26 days of net active service during this period of service and completed a total of 24 years, 1 month, and 16 days of net active service.  However, this DD Form 214 does not reflect the 325 days (10 months and 25 days) of time lost he had due to civil confinement.

11.  On 1 June 2008, he was placed on the Retired List in the rank of CPT.

12.  The applicant provides an OER covering the period of time 19 July 2001 through 18 July 2002 that shows while serving in the rank of MAJ, he received a "satisfactory performance, promote" rating by his rater, and a "fully qualified" [for promotion potential] rating by his senior rater.  He also provides seven OERs covering various periods of rated time between 19 July 2002 through 14 May 2007, that all show while serving in the rank of MAJ, he consistently received "outstanding performance, must promote" ratings from all of his raters, and "best qualified" from all of his senior raters.

13.  Army Regulation 600-8-24, states, in pertinent part, an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in his patriotism, valor, fidelity, and competence.  An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times.  However, an officer who will not or cannot maintain those standards will be separated.  Elimination action may be or will be initiated for acts of personal misconduct, conduct unbecoming an officer.  In addition, officers may be involuntarily released from active duty due to civilian criminal conviction.

14.  Army Regulation 15-80, paragraph 2-4, states in pertinent part, a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay.  Although a lower grade determination may affect an individual adversely, it is not punitive.  The AGDRB will consider each case on its own merits.  Generally, 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.  Circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the following:

	a. Performance level, as reflected in evaluation reports and other portions of the service record that reflect performance.  In reviewing these matters, the AGDRB will consider whether reporting officials were aware of the misconduct or performance giving rise to the grade determination.

	b.  The nature and severity of misconduct, if any.  Although the punishment an individual has received may be one factor in determining the seriousness of misconduct, the amount of punishment will not be considered in determining whether “the individual has been punished enough.”  Grade determinations are not considered punitive, and the standard for grade determinations is “highest grade satisfactorily served,” not whether the individual has been sufficiently punished.

	c.  The grade at which the misconduct was committed.

15.  Title 10, U.S. Code, section 1370 provides an officer will be retired in the highest grade served on active duty satisfactorily, as determined by the Secretary of the military department concerned.

DISCUSSION AND CONCLUSIONS:

1.  Governing regulations state an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in his patriotism, valor, fidelity, and competence.  An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times.  In addition, an officer is retired in the highest grade served on active duty satisfactorily; grade determinations are not considered punitive.

2.  The fact that the applicant may have performed his military duties in an outstanding manner is noted.  However, the evidence of record confirms that while serving on active duty in the rank of MAJ, the applicant was convicted by a civil court of attempted receipt of child pornography, sentenced to 5 years confinement, and was confined by civil authorities for the last 10 months and 25 days of his active military service.  This misconduct rendered his service as a MAJ as unsatisfactory.  Accordingly, elimination proceedings were initiated against him for misconduct and conduct unbecoming an officer.  He was subsequently allowed to retire in lieu of elimination for misconduct. 

3.  As his service in the rank of MAJ was not satisfactory, he was properly placed on the Retired List in the rank of CPT as directed by the Secretary of the Army.

4.  In view of the foregoing, he is not entitled to the requested relief.

5.  Additionally, it is the policy of this Board to not disadvantage an applicant by making the applicant worse off for having applied for a correction to their record.  Therefore, no action will be taken to correct his DD Form 214 for the period ending 31 May 2008 to show his 10 months and 25 days of time lost.

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)                                         AR20120005540





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ABCMR Record of Proceedings (cont)                                         AR20120005540



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