IN THE CASE OF:	  

		BOARD DATE:  27 August 2013

		DOCKET NUMBER:  AR20120022969 


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 was:

* medically retired vice honorably retired for unacceptable conduct
* placed on the Retired List in the rank/grade of lieutenant colonel 
(LTC)/O-5 vice major (MAJ)/O-4

2.  The applicant states:

	a.  He understands the requirement to furnish evidence, but he is being held in protective custody by the U.S. Marshals at the Fannin County Detention Center, Bonham, TX.  He has asked his civil criminal attorney to provide a statement indicating he had neither been tried nor convicted of any crime – especially not for the reason the Commander, 1st Cavalry Division, Fort Hood, TX, so egregiously based his recommendation to deny his medical retirement and recommended his reduction in grade.

	b.  The commander's action was obviously based on the opinion of a malicious division chief of staff who wrote a referred officer evaluation report (OER) because he (the applicant) was an aviator with much familiarity with life outside of the United States and the State of Texas put an ankle monitor on him to ensure he remained in the local area.  He went to work as the assistant G-3 for aviation every day, but he could not attend the chief's Monday morning physical training formation because of the ankle monitor.

	c.  The referred OER is the only black mark in his 36-year military career.  He has numerous Meritorious Service Medals, a Bronze Star Medal, and the occasional top-box OER while holding the rank of LTC.  Why the Army Grade Determination Review Board (AGDRB) could not see that he successfully held the rank of LTC for over 10 years and why they interceded to deny the medical retirement that the Department of Veterans Affairs (VA) and Walter Reed Army Medical Center (WRAMC) both supported is beyond comprehension.

	d.  He had written Mr. W____, Retirement Services Office, Fort Hood, TX, and was informed of the WRAMC's support, but Mr. W____ also stated the Chief of Staff, 1st Cavalry Division, interceded to block the medical discharge notation on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  Gathering any type of evidence to support his claim from his current position is next to impossible, but he continues to try.

	e.  He wanted to register his appeal of the AGDRB's decision because he knew the clock was ticking.  He was unfairly denied whistleblower protection by the Army Review Boards Agency (ARBA) and the Department of Defense Inspector General.  This was because it took him over 3 years to find proof that Congress' fraud, waste, and abuse watchdog agency, whom he had sought assistance from in a 2004 Colombian theft of government property situation, was a protected source.  Perhaps that time-consuming disagreement with ARBA had some influence on the grade reduction and medical retirement decision, but he would certainly hope not.

	f.  He was essentially forced into requesting retirement in lieu of elimination.  The alternative was to face Major General (MG) D___ B. A____'s hand-picked board of elimination without a chance to testify in his own behalf.  Doing so could possibly have compromised the civil criminal charges he was facing.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was promoted to LTC on 1 September 1999. 
Having prior active and Reserve service, he entered active duty in the Regular Army on 8 January 2002.  He was assigned to Headquarters and Headquarters Battalion, 1st Cavalry Division, Fort Hood, TX, on 26 June 2008.

2.  On 22 March 2010, he was arrested and held in the Collin County Jail, McKinney, TX, on suspicion of sexually assaulting a minor female child.  On 23 March 2010, an emergency protective order was filed by civil authorities in McKinney, TX, prohibiting him from coming within 300 feet of the minor child, his spouse, and other minor children in his household.

3.  On 26 March 2010, he was released from the Collin County Jail.  On 26 March 2010, he violated the emergency protective order.  He was subsequently placed on electronic monitoring and ordered to wear an ankle monitor at all times.

4.  On 30 March 2010, a military protective order was issued prohibiting him from coming within 300 feet of the minor child, his spouse, and other minor children in his household.  On 30 March 2010, he acknowledged receipt of the military protective order.

5.  On 30 March 2010, his immediate commander ordered him to remain within the boundaries of Bell and Coryell Counties, TX, and to sign in daily with the 1st Cavalry Division.  He was also required to notify his chain of command at least 48 hours in advance of any official appointments located outside these counties and provide a point of contact for the appointment.  The memorandum stated the order was implemented as a preventive measure to ensure his accountability and availability and not as a punishment.  On 30 March 2010, the applicant acknowledged receipt of the memorandum.

6.  On 7 April 2010, he violated the civil emergency protective order and the military protective order.

7.  On 5 August 2010, he was notified by MG D____ B. A____, Commander,  1st Cavalry Division, of his intent to initiate elimination action against him under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2, for personal misconduct, professional dereliction, conduct unbecoming an officer, and derogatory information.  He was also notified that he was required to show cause for retention.  MG D____ B. A____ stated the specific reasons for the elimination action were the applicant's:

* 22 March 2010 arrest by civil authorities for suspicion of sexual assault of a minor child, the resulting issuance of a emergency protective order, and the requirement to wear an ankle monitoring device
* 26 March 2010 violation of the emergency protective order just 3 hours after being released from jail
* 7 April 2010 violation of both the emergency protective order and military protective order resulting in continued electronic monitoring
* admission to Collin County law enforcement that he purchased and mailed a sex toy to a minor child, the alleged victim in his civil criminal case

8.  The notification stated he could:

* submit a rebuttal with supporting documents to show how he either successfully overcame the reason for the show-cause proceedings or a statement explaining his past actions/behavior
* submit a request for discharge in lieu of elimination or apply for retirement in lieu of elimination, if otherwise eligible
* submit matters for the AGDRB to consider if he requested retirement as the AGDRB would make a recommendation pertaining to the highest grade in which he served satisfactorily for retirement purposes

9.  The notification further stated if he was eliminated for substandard performance of duty only, he would receive an honorable discharge.  If he was eliminated for misconduct or moral or professional dereliction, the least favorable discharge he might receive is a discharge under other than honorable conditions. 
If he did not submit a resignation in lieu of elimination or request to retire in lieu of elimination, his case must be referred to a Board of Inquiry.

10.  On 10 August 2010, the applicant acknowledged receipt of the notification of elimination memorandum.  After consulting with legal counsel, he subsequently submitted a request for retirement in lieu of elimination.

11.  On an unknown date, the applicant went before a medical evaluation board (MEB) and was found to have the unfitting conditions of post-traumatic stress disorder (PTSD)/panic disorder and annular bulging of the intervertebral disc at L3-L4 and L4-L5.  The MEB proceedings are not available for review with this case.

12.  On 6 May 2011, an informal physical evaluation board (PEB) convened at Fort Sam Houston, TX, and confirmed his two unfitting conditions.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to his PTSD/panic disorder and bulging of the intervertebral disc.  He was rated under the VA Schedule for Rating Disabilities and assigned a 60-percent combined disability rating.  The PEB recommended his placement on the Temporary Disability Retired List (TDRL) with a reexamination in February 2012.

13.  On 16 June 2011, the U.S. Army Human Resources Command forwarded the applicant's request for retirement in lieu of elimination to the AGDRB.  The responding official stated the General Officer Show Cause Authority Board recommended not processing the applicant through medical disability channels, recommended approval of his request for retirement in lieu of elimination, and requested a determination of the highest grade the applicant satisfactorily held while serving on active duty.

14.  The AGDRB subsequently reviewed the applicant's request for voluntary retirement in lieu of elimination based on misconduct, the circumstances and facts surrounding the misconduct, and his Army Military Human Resource Record.  The board determined the applicant's misconduct occurred when he held the rank of LTC.  As a result, the board recommended his retirement in the rank of MAJ.

15.  On 21 July 2011, the Deputy Assistant Secretary of the Army (DASA) (Review Boards) disapproved the applicant's placement on the TDRL, approved his retirement in lieu of elimination effective 31 October 2011, approved the recommendation of the AGDRB, and directed the applicant's placement on the Retired List in the rank/grade of MAJ/O-4 effective 1 November 2011.  On 31 October 2011, he was retired accordingly.

16.  On 1 November 2011, he was placed on the Retired List in the rank of MAJ.

17.  His DD Form 214 shows he was honorably retired on 31 October 2011 by reason of unacceptable conduct.  He completed 25 years, 1 month, and 2 days of net active service with 139 days (4 months and 19 days) of lost time due to confinement.

18.  Army Regulation 600-8-24, paragraph 1-24, states that if a commissioned or warrant officer is being processed for release from active duty, separation, retirement, or has been referred for elimination action, when it is determined that the officer has a medical impairment that does not meet medical retention standards, the officer will be processed through the MEB/PEB system.  If the result of the physical disability evaluation is a finding of physical unfitness, the action will be forwarded to the Secretary of the Army or his designee for determination of appropriate disposition.  If an officer is processed for separation or retirement in lieu of elimination, the Secretary of the Army or his designee may direct that either the separation, retirement action, or the disability action take precedence.

19.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations), paragraph 2-4, states 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; and

	c.  the grade at which the misconduct was committed.

20.  Title 10, U.S. Code, section 1370, provides that 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/her patriotism, valor, fidelity, and competence.  An officer is expected to display responsibility commensurate with 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 he or she served on active duty satisfactorily.

2.  The fact that the applicant may have performed his military duties in an outstanding manner much of the time he held the rank of LTC is noted, as is the fact that he had not yet been tried or convicted of a crime while serving on active duty.  However, a grade determination made by the AGDRB is an administrative action and not a punitive action.  The AGDRB considers the nature, severity, facts, and circumstances of any misconduct; there is no requirement that a member be convicted of a crime.

3.  The evidence of record confirms the applicant violated a civil emergency protective order on 26 March 2010 while holding the rank of LTC and he violated both a civil emergency protective order and a military protective order on 7 April 2010.  In addition, he admitted to civil law enforcement that he purchased and mailed a sex toy to a minor child, the alleged victim in his civil criminal case.  His record shows he had over 4 months of lost time due to confinement.  However, he was subsequently allowed to retire.

4.  This misconduct rendered his service as an LTC as unsatisfactory.  As his service in the rank LTC was not satisfactory, he was properly placed on the Retired List in the rank/grade of MAJ/O-4 as directed by the Secretary of the Army.

5.  Although a PEB recommended his placement on the TDRL, when an officer is processed for retirement in lieu of elimination, the Secretary of the Army or his designee makes the final determination if the retirement action or the disability action takes precedence.  In his case, the DASA (Review Boards) properly disapproved his placement on the TDRL and approved his retirement in lieu of elimination.

6.  In view of the foregoing, 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 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)                                         AR20120022969



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ABCMR Record of Proceedings (cont)                                         AR20120022969



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