BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120010299 


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 in effect, that the Army Grade Determination Review Board's (AGDRB) decision be changed to show he is authorized retired pay in the rank of lieutenant colonel (LTC)/O-5 vice Major (MAJ)/O-4.

2.  The applicant states:

* he has been in the Army for over 24 years and he has never had an infraction during his tenure as both an enlisted Soldier or as an officer
* he served in Iraq and was promoted to LTC the day he flew into Iraq
* he was treated unfairly and it is an injustice to punish him for a diagnosed psychiatric illness, compulsive behavior, that resulted in misconduct
* he made a stupid mistake caused by his illness that he now understands and receives treatment to control his compulsive behavior 
* he has worked for 3 general officers who have given him top block ratings
* he was retirement eligible as an LTC in September 2009 with over 21 years of service and he had 3 years time in grade 
* retirement in the rank of MAJ will punish him and his family the rest of their lives for a documented psychiatric illness and something he had been working to rehabilitate before the infraction was investigated
* he did not fully understand what was going on in his life at the time
* he tried to deal with his family problems, depression and stress of work on his own, and he was not successful in refraining from his compulsive behavior
* his chain of command believes that his misconduct does not warrant him retiring in the rank of LTC and to do so would be an injustice
* he admits he made a mistake, but given his stellar career and his commanding general's concurrence, he should be retired in the rank of LTC 

3.  The applicant provides:

* self-authored statements
* Army Grade Determination Appeal package

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the U.S. Army Reserve (USAR), the applicant was commissioned as a second lieutenant (2LT) on 31 May 1990.  He was promoted to LTC/O-5 on 1 September 2006.

2.  On 8 February 2012, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the following on or about:

     a.  4 January 2010, wrongfully viewing and transmitting pornography on his Government-issued computer; and

     b.  10 February 2011, emailing his subordinate from his Government-issued computer a series of 17 pictures showing a woman undressing with close up pictures of her bare genitalia, in which he wrote "This will get you fired."

3.  After having been afforded the opportunity to consult with counsel and understanding his rights, the applicant requested a closed hearing with a person to speak in his behalf.

4.  After having considered all matters presented, the imposing official found the applicant guilty and directed that his DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) be filed in the performance section of his Official Military Personnel File (OMPF), now known as the Army Human Military Resource Record  (AHMRR).

5.  The applicant declined appealing the decision.  His punishment consisted of a forfeiture of $200 pay and a written reprimand.  The written reprimand is unavailable for review.


6.  On 29 February 2012, the applicant submitted a voluntary retirement request with a waiver of time submission for an effective retirement date of 1 October 2012.

7.  The AGDRB reviewed the applicant's case, pursuant to paragraph 4-1c, Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations); however, the rationale is unavailable for review.  

8.  On 17 May 2012, the Deputy Assistant Secretary of the Army (DASA) (Review Boards) directed that should retirement be approved, the applicant's name should be placed on the Retired List in the rank/grade of MAJ/O-4.
       
9.  The applicant provides an appeal to the AGDRB's determination.  Included in his appeal are:

* 5 letters of support from members of his rating chain, former rating chain, and a peer
* 6 officer evaluation reports covering the periods 5 June 2006 through 1 June 2011 
* Meritorious Service Medal Certificate, dated 26 April 2011, for the period covering 1 October 2007 to 15 June 2011
* Bronze Star Medal Certificate, dated 17 May 2007, for the period covering 15 September 2006 to 14 August 2007
* medical statement, dated 1 May 2012, from his treating psychiatrist

10.  The medical statement from the applicant's psychiatrist shows:
     
* his behavioral symptoms occurred under conditions of extraordinary family distress  and the untimely discontinuation of medication (under a physician's direction, after 2 years of sustained remission) which had previously regulated compulsive behaviors
* if these two conditions had not been present, there would have been no recurrence of his illness, a stellar performance record  would have remained unblemished, and the applicant would not have been required to consider early retirement

11.  Title 10 of the U.S. Code, section 1370 provides the legal rules for retirement in highest grade held satisfactorily and provides for officers being retired in the highest grade in which he/she served on active duty satisfactorily, as determined by the Secretary of the military department concerned.  It further states, in pertinent part, that in order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years.

12.  Army Regulation 15-80 establishes policies, procedures, and responsibilities of the 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 DASA (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.

13.  Paragraph 4-1d of Army Regulation 15-80 states all retirements, except for disability separations, involving officers who, since their last promotion, have been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry (except minor traffic infractions) will be forwarded to Assistant Secretary of the Army (Review Boards) for a grade determination, provided such information is reflected, or should be reflected by regulation, in the officer's AHMRR.  Examples of such findings or conclusions include a memorandum of reprimand.  Even if the information described is not required to be filed in the officer's AHMRR, the separation authority may forward any retirement that contains information deemed substantiated, adverse, and material to a determination of retired grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that the AGDRB's decision be changed to show his authorized retired rank as LTC/O-5 vice MAJ/0-4 was carefully considered.

2.  While serving in the grade of LTC, the applicant accepted NJP for two instances of viewing pornography on a Government-issued computer.  He accepted NJP, and although it is not available, a written reprimand constitutes adverse proceedings.

3.  The applicant contends he had served honorably more than 3 years in the rank of LTC, he was treated unfairly by the AGDRB, and that he had a psychiatric illness.  However, he fails to show the AGDRB's action was not processed in accordance with the applicable laws and regulations.  Absent such evidence of an error or injustice related to this process there is an insufficient evidentiary basis to support granting the requested relief.  

4.  Although it is unfortunate the applicant suffered from compulsive behaviors at the time of his retirement, he was suffering from no disabling medical condition that would have supported his separation processing through medical channels at the time.  His medical condition alone is not a basis to support restoration of his grade.  By regulation, 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, owing to misconduct, and/or caused by NJP pursuant to UCMJ Article 15.  

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)                                         AR20120010299



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ABCMR Record of Proceedings (cont)                                         AR20120010299



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