IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120011848 


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 to be advanced on the Retired List to the rank of major/O-4. 

2.  The applicant states he served on active duty in the rank of major for more than 6 years and is being retired in the rank of captain based on a determination by the Army Grade Determination Review Board (AGDRB).  He goes on to state that the decision of the AGDRB was based on one specific act of misconduct.  He goes on to state that nonjudicial punishment (NJP) was imposed against him early in his tenure as a major and he served honorably and with distinction both before and after the NJP was imposed and he was not reduced in grade at the time.  He continues by stating that the one incident caused him to be passed over for promotion to lieutenant colonel and his family has suffered the humiliation caused by his behavior.  He also states that he and his family have paid a high price already and he requests that the Board reconsider the decision made by the AGDRB and retire him in the rank of major/O-4.

3.  The applicant provides a two-page letter explaining his request, a copy of the AGDRB decision, a letter from his spouse, and a letter of support from his last senior rater.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 8 October 1985 and served until he was honorably released from active duty in the pay grade of E-4 on 4 December 1989.

2.  On 13 May 1995, he was appointed as a U.S. Army Reserve (USAR) second lieutenant with concurrent call to active duty.  He was appointed as a Regular Army officer on 7 June 1995 while attending the Quartermaster officer basic course.

3.  He continued to serve in a variety of assignments and was promoted to the rank of major on 1 October 2005.

4.  On 5 July 2006, NJP was imposed against the applicant by a major general for conduct unbecoming an officer by wrongfully engaging in sodomy and adultery with a married woman who was not his wife.  His punishment consisted of a forfeiture of pay (suspended) and a written reprimand.  The imposing officer directed that the Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), be filed in the performance section of his Official Military Personnel File (OMPF).

5.  The applicant submitted an appeal to the Department of the Army Suitability Evaluation Board (DASEB) requesting that the record of NJP and the General Officer Memorandum of Reprimand (GOMOR) be transferred to the restricted section of his OMPF.  On 3 January 2011, the DASEB denied his request.

6.  On 10 January 2012 the U.S. Army Human Resources Command dispatched a memorandum to the applicant informing him that the Fiscal Year 2011 Lieutenant Colonel Promotion Selection Board determined that he should show cause for retention on active duty because of misconduct, moral or professional dereliction.

7.  The applicant again applied to the DASEB for reconsideration of his request to move the record of NJP and GOMOR to the restricted section of his OMPF.  On 15 March 2012 the DASEB voted unanimously to deny his request.

8.  Meanwhile, on 29 February 2012, the applicant submitted a request for retirement in lieu of elimination in the rank of major.

9.  The AGDRB determined that he should be retired in the rank of captain/O-3E and on 24 April 2012, the Deputy Assistant Secretary of the Army (DASA) (Review Boards) approved the applicant’s request for retirement in lieu of elimination and directed that he be retired in the grade of captain/O-3E.

10.  On 31 July 2012 he was retired in the rank of major/O-4 and was transferred to the Retired List in the grade of captain/O-3E effective 1 August 2012.  He completed 21 years, 4 months, and 15 days of active service. 

11.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) 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 Deputy Assistant SA (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.

12.  Title 10, U.S. Code, section 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be advanced on the Retired List to the highest grade satisfactorily held while on active duty has been noted along with his supporting documents and appears to lack merit. 

2.  Although the applicant was allowed to remain on active duty until he reached retirement eligibility and he continued to serve, his misconduct occurred while he was serving in the rank of major/O-4.  

3.  While the applicant has indicated that he is remorseful for his actions, that in itself is not sufficiently mitigating to reverse the previous decision by the appropriate authority to grant him retirement in the grade of captain/O-3E in lieu of elimination.

4.  Accordingly, based on his misconduct, his service in the rank of major/O-4 was not deemed satisfactory service for the purpose of retirement and there appears to be no basis to grant his request.



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 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)                                         AR20120011848





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ABCMR Record of Proceedings (cont)                                         AR20120011848



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