BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130006280 


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, placement on the Retired List in the rank/grade of lieutenant colonel (LTC)/O5.

2.  The applicant states:

	a.  He had served in the Army for over 24 years at the time of his retirement.  During that time he served faithfully and honorably.  In December 2011, during a time of great challenge in his marriage, he made the mistake of having an affair.  Over the course of 3 weeks he carried out an online affair consummated by a single in-person meeting.  He regrets his decisions everyday and has worked hard to rebuild his relationship with his wife and to continue to serve the nation.

   b.  Despite the fact that he has served as an LTC since 2008, the Army Grade Determination Review Board (AGDRB) determined that he should be retired in the rank of major (MAJ) instead of LTC.

3.  The applicant provides:

* Input to AGDRB memorandum with attachments (five DA Forms 67-9 (Officer Evaluation Report (OER)) and Bronze Star Medal and Meritorious Service Medal certificates
* 2013 separation orders
* 2013 DD Form 214 (Certificate of Release or Discharge from Active Duty)


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 21 April 1989.  He entered active duty on 3 January 1992.  He was promoted to LTC on 1 March 2009.

2.  On 11 January 2012, an Army Regulation 15-6  (Procedures for Investigating Officer and Boards of Officers) investigation found the applicant committed adultery, had an inappropriate relationship, and made false official statements.  On 12 January 2012, the investigation was found to be legally sufficient.

3.  On 19 January 2012, the Commanding General (CG), 1st Infantry Division, recommended the applicant be removed from his command based on the findings of the Army Regulation 15-6 investigation.

4.  On 5 March 2012, he received a "Relief for Cause" OER for the period 5 November 2011 through 27 January 2012 for his duties as a Battalion Commander.  His rater was a colonel, the Brigade Commander, and his senior rater (SR) was a major general, the CG for the 1st Infantry Division.  The OER shows the following entries:

	a.  In Part II (Authentication) the rater noted this was a referred OER and the applicant did indicate he wished to make comments;

	b.  In Part IV (Performance Evaluation – Professionalism) the rater placed an "X" in each "Yes" block with the exception of the "integrity" and "duty" blocks;

	c.  In Part IVb (Leader Attributes/Skills/Action) the rater placed an "X" in the "Yes" in each block.

	d.  In Part V (Performance and Potential Evaluation) the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block.  In Part Vb he entered the following comments:

[Applicant's] was one of the best logisticians he had encountered during his years of service.  His technical skill and sound management practices were second to none during his first year of command; however, his efforts were overshadowed by his lack of compliance with accepting professional officer standards.  He had an inappropriate relationship with a married subordinate enlisted Soldier and made false official statements when asked about this allegation of misconduct.  

	e.  In Part Vc, the rater entered the following comment "Do not promote."
	f.  In Part VII(a) (SR), the SR placed an "X" in the "Do Not Promote" block.  In Part VIIb, the applicant was assessed as "Below Center of Mass, Retain."  In Part VIIc, the SR entered the following comments:

He relieved the [Applicant] from his duties as the battalion commander of the 701st Brigade Support Battalion for having an inappropriate relationship with a married enlisted Soldier.  His actions failed to comply with the accepted professional officer standards of integrity and duty and had caused him to fail as a commander.

5.  The OER was digitally signed by his rater, SR, and the applicant on 5 March 2012.

6.  On 13 March 2012, at a closed hearing, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for wrongfully fraternizing with an enlisted person between 8 December 2011 and 8 January 2012, resulting in him, a married man, wrongfully having a sexual relation with a married women, not his wife, on or about 3 January 2012, and making false statements about this relationship.  His punishment consisted of a forfeiture of pay for two months and a written reprimand.  He elected to appeal the punishment.

7.  On 5 April 2012, his appeal of the Article 15 was denied and the Article 15 was directed to be filed on his performance fiche of his Army Military Human Resource Record.  

8.  On 14 December 2012, the Commanding General, U.S. Army Human Resources Command, Fort Knox, KY, notified the applicant of his identification by the Fiscal Year 2012 Colonel, Army, Force Sustainment Promotion Selection Boards to show cause for retention on active duty, under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b, because of misconduct, moral or profession dereliction.  The memorandum stated the action was based on the following specific reasons for elimination:

* a series of substantiated derogatory activity resulting in a referred OER for the period 5 November 2011 through 27 January 2012 and an Article 15, UCMJ, dated 13 March 2012
* conduct unbecoming an officer as indicated by the foregoing items

9.  He was advised of his rights, to include submitting his resignation in lieu of elimination according to Army Regulation 600-8-24, chapter 4.

10.  On 12 February 2013, the applicant submitted a request for a retired grade determination in the rank of LTC.  The applicant's CG and garrison commander recommended approval of the applicant's request and his request for retirement in lieu of elimination was forwarded to the Deputy Assistant Secretary of the Army (Review Boards) for appropriate action.

11.  On 1 March 2013, upon review by the AGDRB, the Deputy Assistant Secretary of the Army (Review Boards) approved the applicant's retirement in lieu of elimination with his placement on the retired list in the grade of MAJ.

12.  Army Regulation 600-8-24 prescribes the officer transfer from active duty to the Reserve Components and discharge functions.  Paragraph 4-2b states elimination action may be or will be initiated for misconduct, moral or profession dereliction.  An officer recommended for elimination by a Board of Inquiry will have their case referred to a Board of Officers.  An officer may submit a completed Resignation in Lieu of Elimination or a Request for Retirement in Lieu of Elimination.  The AGDRB in accordance with Army Regulation 15-80 (AGDRB and Grade Determinations) will make a determination of the highest grade served in satisfactorily.

13.  Title 10, U.S. Code, section 1370(a) states that unless entitled to a higher retired grade under some other provisions of law, a commissioned officer of the Army who retired under any provision of law other than chapter 61 or chapter 1223 of this title shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the Army, for not less than 6 months.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to LTC on 1 March 2009.  He was issued a referred OER, an NJP under Article 15, and he was also removed from his command in January 2012 for misconduct, moral or profession dereliction based on a series of substantiated derogatory activities.  On 
12 February 2013, he requested retirement in lieu of elimination in the grade of LTC after being notified of his identification to show cause for retention on active duty because of misconduct, moral or professional dereliction. 

2.  On 1 March 2013, the Deputy Assistant Secretary of the Army (Review Boards) approved his retirement in lieu of elimination and directed his placement on the retired list in the grade of MAJ.

3.  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 to 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 served on active duty satisfactorily.

4.  His contentions have been noted and found not to have merit.  The applicant as a senior commissioned officer was required to set high personal and professional standards of conduct.  His misconduct with a subordinate enlisted Soldier 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.  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)                                         AR20130006280





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ABCMR Record of Proceedings (cont)                                         AR20130006280



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