IN THE CASE OF:	  

		BOARD DATE:	  15 October 2013

		DOCKET NUMBER:  AR20130002605 


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:

The applicant defers his request, statement, and evidence to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant’s records to:

* show he was placed on the Retired List in the rank/grade of colonel (COL)/O-6 vice lieutenant colonel (LTC)/O-5
* delete the entry unacceptable conduct from item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty)

2.  Counsel states:

	a.  The applicant was a highly-decorated, military doctor with approximately 27 plus years of honorable service to his country.  He received numerous accolades and awards and was prolific in his field, ultimately serving during the last several years of his service as Chief, Infectious Disease Service, Brooke Army Medical Center (BAMC), Fort Sam Houston, TX.

   b.  The applicant should be placed on the Retired List in the highest grade he held satisfactorily while serving on active duty.  He was Chief, Infectious Disease Service, BAMC, from 2003 to 2011.  He successfully integrated the U.S. Air 


Force (USAF) and Army infectious disease staff under his leadership.  He was the infectious disease consultant to the U.S. Army Surgeon General from 2005 to 2011.  Throughout various periods from 2007 to 2009, he served as the acting chief for different departments at BAMC and as deputy commander.  In 2011, he was selected to command the U.S. Army Medical Research Institute of Chemical Defense, Aberdeen Proving Ground, MD.  
   
   c.  Prior to the investigation, all of his Officer Evaluation Reports (OERs) were above center mass.  He was lauded for his many contributions and consistently listed as “Best Qualified.”  Phrases such as “[The Applicant] is the epitome of an Army physician…,” “he combines world class clinical expertise with outstanding academic acumen,…,” “…engendering the respect and admiration of his colleagues and senior leaders,” and “…countless publications and thorough active mentorship” [were listed on his OER].  His rater recommended that he be selected for the Senior Service College and posited that he would be an outstanding commander for any Army/Department of Defense (DOD) research facility.

	d.  In 2007 to 2008, his rater noted that the applicant's contributions to national infectious disease policies were unsurpassed and that he was already recognized as the premier infectious disease physician in the U.S. Army Medical Department (AMEDD) and the entire DOD.  In 2008 to 2009, it was noted that his clinical skills and scholarly pursuits had contributed to countless saved lives.  In this particular rating period alone, he was published a staggering 25 times in scholarly publications, in addition to his editorial work on professional journals and manuals during this period.  In 2009 to 2010, he was lauded as the top infectious disease physician in DOD and the most prodigious clinical researcher in AMEDD, as well as possessing an unsurpassed ability to motivate and inspire those around him.  His work on professional committees and awards received are too numerous to mention; he has contributed to/or authored no less than 80 medical publications during the last 5 years of his military career.

	e.  In early 2010, the applicant was going through a tumultuous period in his life leading up to a divorce.  He was emotionally vulnerable at the time and dedicated himself to his work and his children.  It was during this time that he began a romance with another officer from a sister service.  During this same period, he drank too much on one single occasion while in the company of other officers who wanted to go to a strip club after dinner and drinks.

	f.  On 15 August 2011, he received an Article 15 under the Uniform Code of Military Justice (UCMJ), for:  (1) an unprofessional encounter with a female 


military officer while intoxicated, which the Army deemed as “assault,”  (2) visiting a strip club with military officers on 5 August 2011, and (3) having an affair with a field grade USAF officer from 1 February 2010 through 18 May 2011.  On 25 August 2011, he was fined and given a general officer memorandum of record (GOMOR) 

	g.  The assault occurred the same evening as the strip club visit where the applicant made a pass, while intoxicated, at a female officer of his acquaintance.  Nothing resulted from the pass; the female officer refused his advances and he respected her wishes and left her alone.  To this day, she bears no grudge against him and stated she did not experience any emotional trauma from the incident, that he had apologized to her, and that she felt comfortable during every interaction with him since that incident.  

	h.  The nonjudicial punishment (NJP) the applicant received ended with him admitting his conduct, apologizing to the female officer, and accepting full responsibility for his actions and his brief lapse in judgment.  At no time was there any discernible effect on good order and discipline from his behavior.  Other than the Article 15 action, his record was pristine.  He was an excellent officer who earned recognition as previously stated.  The Article 15 also cost him his appointment as a consultant to The Surgeon General.  These events transpired during a period he was facing divorce, and, for a father with three children, this fall from grace was a profound one and had a deep impact on him personally and professionally.  However, it did not curtail his stellar work ethic or his commitment to the Army mission.

	i.  On 2 November 2011, the applicant requested retirement in lieu of elimination action under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges).  At the time of the misconduct, the applicant had served in the rank of COL since June 2006 and enjoyed over 4 years of honorable and distinctive service with the period of the alleged misconduct of approximately 1 year.  The misconduct was a one-time occurrence (strip club visit and pass), or a private matter that had zero effect on unit morale or discipline (affair).  At no time was the Army mission ever hampered.

	j.  On 26 January 2012, an officer grade determination case was made for the applicant’s retirement in lieu of elimination request and the decision was made, and approved, that he be retired in the rank of LTC.  This decision was an injustice and solely based on the Article 15 he received.  He did receive an honorable discharge.


	k.  The applicant was responsible for the successful function and maintenance of the Infectious Disease Service, BAMC, and led the infectious disease effort for the Army and DOD as consultant to The Surgeon General, in addition to working as a researcher and educator in his field.  Counsel was providing numerous statements of support from professional leaders attesting to the applicant’s professionalism, his many contributions, and his prodigious work.  The recurring theme in the statements was that the applicant was deserving of leniency when it came to any former punishment and it was an injustice to deny an officer of his accomplishments the rank that he earned throughout his service.

3.  Counsel provides:

* the applicant’s DD Form 214
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ)
* four memoranda, dated 25 August 2011, 12 September 2011, 26 January 2012, and 31 January 2012
* four DA Forms 67-9 (OER) covering the rating periods 29 May 2006 - 28 May 2007, 29 May 2007 - 28 May 2008, 29 May 2008 - 28 May 2009, and 29 May 2009 - 28 May 2010
* sixteen statements of support
* twenty pages titled “Curriculum Vitae”

CONSIDERATION OF EVIDENCE:

1.  Having had prior Reserve service, the applicant's records show he was appointed as a Reserve commissioned officer and he entered active duty on 19 June 1991.  He served in staff and leadership positions and he attained the rank of COL on 20 June 2006.  He was assigned to Company B, Troop Command, Fort Sam Houston, TX.

2.  On 15 August 2011, he received NJP under the provisions of Article 15, UCMJ, for one specification each of:

* assaulting a female officer by grabbing her waist, kissing her, and putting his hand down her blouse
* wrongfully having sexual intercourse with a second female officer, a woman not his wife, on divers occasions between 1 February 2010 and 1 May 2011
* visiting a strip club with several subordinate junior officers which constituted conduct unbecoming an officer and a gentleman

3.  The punishment imposed was a forfeiture of $4,611.00 per month for 2 months and a written reprimand.  He appealed the Article 15 to the next higher commander and, on 26 August 2011, his appeal was denied.

4.  In a GOMOR, dated 25 August 2011, issued by the Commander, BAMC, the commander stated:

	a.  The applicant was being reprimanded for adultery, assault, and conduct unbecoming an officer.  As the Chief, Infectious Disease, he had an adulterous affair for over a year with an USAF LTC who also worked in the same department.  In addition, on 5 August 2011, he went to a strip club with five junior officers, most of whom were fellows in his department.  While there, the junior officers purchased drinks for him as well as a “lap dance.”  Upon leaving the club, he assaulted one of the fellows in the back seat of the rental van by attempting to kiss her, pull her close to him, and by trying to put his hand down her blouse.  He also propositioned her by asking her to accompany him to his room.

	b.  He further stated the applicant’s conduct fell far short of the high ethical standard and level of discipline expected of an Army officer.  In selfishly pursuing his personal desires, he had shown a complete disregard for Army regulations and law.  More importantly, he had greatly jeopardized the good order and discipline of his unit and department.  His actions had irrevocably hindered his ability to lead other Soldiers and caused him (the commander) to question his fitness for further service.  He had brought discredit upon himself, the Medical Command, and the U.S. Army.  

	c.  He directed the DA Form 2627 and the GOMOR be filed in the performance section of the applicant’s Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File.  The GOMOR was given as punishment under Article 15, UCMJ.

5.  Counsel provides a memorandum, dated 12 September 2011, issued by The Surgeon General, wherein the applicant’s appointment as consultant to The Surgeon General was rescinded.  The Surgeon General stated consultants were his senior representatives in their respective area of expertise and should demonstrate the highest professional standards of technical, ethical, and leadership performance.  The applicant’s misconduct which resulted in an Article 15 was not in keeping with the standards of performance expected and formed the basis for his decision to rescind the applicant’s appointment.

6.  On 4 October 2011, the applicant was notified by the Commander, BAMC, that he was required to show cause for retention as elimination action was being initiated against him under the provisions of Army Regulation 600-8-24 for misconduct.  The commander stated the specific reasons were for:

	a.  A series of derogatory activities resulting in an Article 15 being filed in the applicant’s AMHRR to include the applicant being disciplined and reprimanded for substandard performance, misconduct, and moral or professional dereliction.  His failure to exercise the necessary leadership expected of an officer of his grade by attending a strip club with five junior officers, all of whom were fellows under his tutelage.  In addition, he had conducted an affair with another senior officer in his department for about a year and a half.

	b.  Acts of personal misconduct, including fraternization with junior officers, adultery, and assault on a junior officer who was a fellow in his department.  The assault consisted of the applicant groping her and trying to kiss her while he was in a drunken state.  

	c.  Conduct unbecoming an officer for the conduct listed above and the NJP received under the provisions of Article 15, UCMJ.

7.  The applicant was further advised that he could confer with legal counsel and he may:

* submit a rebuttal with all supporting documentation to show he either successfully overcame the reason for the show cause proceedings or a statement explaining his past actions/behavior
* submit a request for resignation in lieu of elimination
* submit a request for retirement in lieu of elimination if he was eligible
* along with a request for retirement in lieu of elimination, he may submit matters for the Army Grade Determination Review Board (AGDRB) to consider as the AGDRB would make a recommendation as to the highest grade he served satisfactorily for retirement purposes

8.  On 2 November 2011, after consulting with legal counsel, the applicant submitted his request for retirement in lieu of elimination.  With this request, he submitted a memorandum, dated 2 November 2011, to the AGDRB, wherein he stated:

	a.  He apologized for his conduct and, after serving in the Army for 27 years, he knew better and was embarrassed to be in his situation.  His unprofessional encounter with the junior officer occurred during an inebriated state and was a one-time occurrence.  He was attaching character letters from both civilian and 


military females in his department that stated he fostered a professional and respectful working environment.

	b.  His unprofessional off-duty relationship with the senior officer was wrong and, as an officer in the Army, he knew the conduct was a violation of the UCMJ.  As a married man, he violated his marriage vows and it cost him dearly as he was now in the midst of divorce proceedings.

	c.  His date of rank to COL was 16 June 2006 and his misconduct took place over a 1-year period.  For 4 years, he served as a COL with honor and distinction and he should be allowed to retire at that rank.

	d.  He took full responsibility for his inappropriate conduct and he alone was at fault for ending his career that way, but it did not reflect his entire career.  He worked hard to earn his credentials and reputation as a highly-respected physician, teacher, and researcher in the infectious disease practice and asked that his lapse in judgment not forever brand his entire military career.  With his request, he submitted several statements of support acknowledging his numerous accomplishments during his military career.

9.  The applicant’s chain of command subsequently recommended approval of his request for retirement in lieu of elimination.

10.  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, the documentation he provided, and his AMHRR.  The board determined the applicant's misconduct occurred when he held the rank of COL.  As a result, the board recommended his retirement in the rank of LTC.

11.  On 25 January 2012, the Deputy Assistant Secretary of the Army (DASA) (Review Boards) approved his retirement in lieu of elimination effective 30 April 2012, approved the recommendation of the AGDRB, and directed the applicant's placement on the Retired List in the rank/grade of LTC/O-5 effective 1 May 2012.  

12.  On 30 April 2012, he was honorably retired in the rank of COL and on 1 May 2012, he was placed on the Retired List in the rank of LTC.  He completed 20 years, 10 months, and 12 days of creditable active service during this period of service.

13.  Item 25 (Separation Authority) of his DD Form 214 shows he retired under the provisions of Army Regulation 600-8-24, paragraph 6-17d and paragraph     4-2b.  Item 26 (Separation Code) contains the separation program designator (SPD) code of RNC and item 28 contains the entry unacceptable conduct. 

14.  Counsel provides sixteen statements of support, dated between 20 July 2011 and 7 January 2013, wherein various military and civilian subordinates, colleagues, and senior leaders all stated the applicant had a tremendously positive impact on the military practice of infectious disease; he provided key advice to the Army Surgeon General; was a highly-accomplished researcher, educator, supervisor, and mentor; he had always demonstrated the utmost professionalism, and his service and leadership to AMEDD and the Army was second to none.

15.  Army Regulation 600-8-24 sets forth the basic authority for the separation of officer personnel from the Army.  Paragraph 4-2b provides that if a commissioned or warrant officer has been referred for elimination action, if eligible, he or she may request retirement in lieu of elimination.  Paragraph 6-17d of this regulation applies when a voluntary request for retirement is submitted in lieu of elimination for misconduct.

16.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states the SPD code of RNC is the appropriate code to assign to Soldiers retired in lieu of elimination action under the provisions of Army Regulation 600-8-24, paragraph 6-17d and unacceptable conduct is the corresponding narrative reason for separation.

17.  Army Regulation 15-80 (AGDRB 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:

	a.  The 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.

18.  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 COL is noted.  However, the evidence of record confirms the applicant, a senior officer in the rank of COL, engaged in inappropriate conduct as evidenced by the Article 15 and GOMOR he received for substandard performance, misconduct, fraternization, adultery, and assaulting a female junior officer.  

3.  This misconduct rendered his service as a COL as unsatisfactory.  As his service in the rank COL was not satisfactory, he was properly placed on the Retired List in the rank/grade of LTC/O-5.

4.  With respect to the narrative reason for separation, the evidence of record confirms he was honorably retired under the provisions of Army Regulation
600-8-24, paragraph 6-17d and paragraph 4-2b for misconduct after he submitted his voluntary request for resignation in lieu of elimination.  His DD Form 214 correctly shows he was separated with the SPD code of RNC by reason of unacceptable conduct.  This is the only valid narrative reason for separation permitted under this chapter.  


5.  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 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)                                         AR20130002605





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130002605



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1