IN THE CASE OF:	  

		BOARD DATE:	 19 September 2013 

		DOCKET NUMBER:  AR20130004846 


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 that he be retired in the rank of lieutenant colonel (LTC).  

2.  The applicant states, in effect, that he successfully served in the rank of LTC and was unjustly retired in the rank of major based on a determination by the Army Grade Determination Review Board (AGDRB).

3.  The applicant provides a 12-page memorandum explaining his application along with 26 enclosures. 

CONSIDERATION OF EVIDENCE:

1.  On 17 February 2009, while serving as a promotable major, the U.S. Army Human Resources Command (HRC) granted authority to frock the applicant to the rank of LTC effective 1 March 2009.  The applicant was assigned as a deputy inspector general in Kuwait.  He was officially promoted to LTC on 1 May 2009.

2.  On 12 September 2009, he received a General Officer Memorandum of Reprimand (GOMOR) for attempting to leave post without a weapon to attend a dental appointment and for improperly ordering a government purchase card (GPC) holder to violate GPC procedures and make unauthorized purchases.  

3.  In response to the GOMOR, the applicant submitted a rebuttal in which he explained, in effect, that he tried to explain to the gate sentry that he was the Inspector General (IG) and knew the policies and the policy clearly stated that he was not required to have a weapon if he was attending an appointment and was accompanied by someone who had a weapon.  The sentry informed him that he had orders that no one was to depart without a weapon so he returned to the arms room and withdrew his weapon and departed the compound in order to make his appointment.  He continued by stating that when he told his noncommissioned officer (NCO) to purchase a printer for the upcoming exercise his NCO was not within 45 days of departure; however, due to delays in obtaining a GPC, when it was finally received, the NCO was within 45 days of departure when he attempted to purchase the printer.  However, the printer was not available and he did not get it.  The applicant accepted responsibility for the action and stated that he should not have placed his NCO in that position.  The applicant provides a copy of the command policy with his application which clearly states that individuals attending medical appointments are not required to carry a weapon to leave the installation if they are accompanied by someone else carrying a weapon.  

4. On 14 November 2009, he received a relief for cause officer evaluation report (OER) for the period 20090402 – 20090912 (4 rated months).

5.  He continued to serve and received four additional OERs in which he received maximum ratings from his raters and center of mass and above center of mass ratings from his senior raters who were general officers.

6.  In 2012, the applicant submitted his request for voluntary retirement and on  10 October 2012, the AGDRB determined that based on his GOMOR and relief for cause OER, the highest grade he satisfactorily served in was the rank of major.

7.  On 30 June 2013, he was honorably retired in the rank of LTC and was transferred to the Retired List in the rank of major effective 1 July 2013.  He had served 24 years, 11 months, and 3 days of active service.

8.  A review of his official records shows no other derogatory information contained in his records.

9.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) generally states that a grade 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.  It also provides that circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the grade at which the misconduct was committed.

10.  Paragraph 2-5 of this same regulation provides, in pertinent part, that 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, was owing to misconduct, caused by nonjudicial punishment pursuant to Article 15, Uniform Code of Military Justice or the result of the sentence of a court-martial.  One specific act of misconduct may or may not form the basis for a determination that the overall time served in that grade was unsatisfactory regardless of the period of time served in grade.  This regulation further states that if service in the highest grade held was unsatisfactory, the Soldier can be deemed to have served satisfactorily in the next lower grade actually held.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was unjustly retired in the rank of major has been noted and appears to have merit.

2.  The applicant has provided a logical explanation of the events that surround his relief for cause OER and GOMOR and while the Board does not condone his actions, the 4-month period in question coupled with the relative minor nature of his offenses does not sufficiently serve to deem his service as a LTC as being unsatisfactory.

3.  This is especially true when looking at his entire record of service and the fact that he received five OERs (other than the relief for cause) that were excellent evaluations of his service as a LTC and most of those were after the incidents in question.

4.  Therefore, given his entire record of service and as a matter of equity, he should have been placed on the retired list in the rank of LTC effective 1 July 2013.

BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant was placed on the Retired List in the rank of LTC effective 1 July 2013 with entitlement to all back retired pay.

2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Global War on Terrorism are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   _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)                                         AR20130004846





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ABCMR Record of Proceedings (cont)                                         AR20130004846



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