IN THE CASE OF:	   

		BOARD DATE:	  5 September 2013

		DOCKET NUMBER:  AR20130011463 


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 and statement to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's Army Military Human Resource Record (AMHRR) as follows:

	a.  Vacate and remove the General Officer Memorandum of Reprimand (GOMOR), dated 12 October 2011; 

	b.  Reverse the retirement grade determination to allow him to retire in the rank/pay grade of colonel (COL/O-6); and

	c.  Restore all pay allowances, entitlements, rights, and privileges.

2.  Counsel states that the applicant's extraordinary performance and service to the Nation and the U.S. Army cannot be overlooked when judging him.  The applicant acknowledged and took full responsibility for his actions.  He clearly understands the need for the scrutiny of any issue that would question an officer's retirement grade; however, in this case, the responsible authorities who knew him, and the case, made their informed determinations that the applicant would be allowed to retire in the pay grade O-6.  His service far outweighs any negative aspect presented and reviewed.  The subject allegations did not reflect who he was as a person and an officer of the U.S. Army.

3.  Counsel provides a list of supporting documents on page 15 of the petition.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant (2LT) in the U.S. Army Reserve (USAR) on 30 January 1985 and entered extended active duty.

2.  He progressed through the ranks and on 1 September 2007 he was promoted to COL/O-6.  He is currently assigned to the U.S. Army, North Atlantic Treaty Organization (NATO) Delegation, Belgium serving as a Staff Planner (Land Operations).

3.  A Department of the Army Inspector General (DAIG) Action Request System Electronic Form 1559 provided by the applicant shows the following timeline:

	a.  On 7 September 2011, an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigating officer (IO) was assigned to review allegations of nonsupport and adultery against the applicant.

	b.  On 2 November 2011, the IO determined the allegation that:

		(1)  the applicant, a U.S. Military Delegate to NATO, married man, on or about December 2009, wrongfully had sexual intercourse with XXX, a woman not his wife, in violation of Article 134, Adultery, Uniform Code of Military Justice (UCMJ), was substantiated;

		(2)  the applicant engaged in an inappropriate relationship with a female Foreign National while serving in an official capacity as a representative of the U.S. Government overseas, in violation of Article 133, Conduct Unbecoming of an Officer and Gentleman, UCMJ, was substantiated;

		(3)  the applicant failed to obey Army Regulation 608-99 (Family Support, Child Custody, and Paternity) by not providing financial support to his child, in violation of Article 92, Failure to Obey Order or Regulation, UCMJ, was not substantiated; and 

		(4)  the alleged daughter of the applicant has not been entered into Defense Eligibility and Enrollment Reporting System (DEERS)/Tricare and her mother has not been provided a military identification card on the child's behalf was founded.

4.  On 12 October 2011, the applicant was reprimanded by the Commanding General, Headquarters, 21st Theater Sustainment Command, Europe, for engaging in an adulterous relationship while still married resulting in the birth of a child for whom he had acknowledged paternity.  Further, his flagrant disregard for the standards expected of senior commissioned officers was both unprofessional and unacceptable.

5.  On 25 October 2011, the applicant acknowledged receipt of the GOMOR and elected not to submit matters on his own behalf.  The Commanding General directed the GOMOR be filed in the performance section of the applicant's AMHRR.

6.  The applicant applied for voluntary retirement on 12 March 2012.  He requested to be placed on the retired list on 1 December 2012 and to be transferred to the Retired Reserve immediately on retirement.

7.  On 30 April 2012, the Army Review Boards Agency (ARBA) notified the applicant that his request for retirement, Official Military Personnel File (which included a GOMOR dated 12 October 2011), and Officer Record Brief would be forwarded to the Army Grade Determination Board (AGDRB) for recommendation of the highest grade in which he served satisfactorily for retirement purposes.  The Deputy Assistant Secretary of the Army (DASA), ARBA would make the final determination.

8.  He acknowledged receipt of this notification on 2 May 2012 and submitted written material for consideration.  The applicant contended that he should be allowed to retire at the pay grade of COL/O-6 for the following reasons:

* the GOMOR did not take into account his marital status as separated for 
4 years which was verified by the DAIG inspection
* although the Army sees no difference between married and separated he believes his marital status is a mitigating factor for grade determination
* his service has been exemplary for more than 30 years
* he participated in two wars, serving as a battalion commander during Operation Iraqi Freedom (OIF)
* his family was aware of the birth of his daughter and this was a highly personal matter which only reflected on his professional life when the Army decided to investigate a false claim of not providing support to his child
* he has served honorably and continues to serve
* the birth of his child had no adverse impact on the performance of his mission or the unit's mission

9.  In addition to his statement, the applicant and his counsel provided a copy of his Marital Separation Agreement, dated 30 June 2008.  This document shows the applicant and his spouse were separated on or about 14 June 2007 and were currently living separate and apart from each other, and had voluntarily and mutually agreed to continue to live separate and apart.

10.  On 23 August 2012, the DASA, ARBA, directed the applicant be placed on the retired list in the grade of O-5 (Lieutenant Colonel/LTC), if his retirement was approved.

11.  His retirement was subsequently approved and his retirement date adjusted to 30 September 2013.

12.  The applicant and his counsel provided the following documents:

* his enlistment contract and assignment history
* Officer Evaluation Reports for the period March 1986 through May 2012, all which show he had exemplary ratings in performance and promotion potential
* various awards, which include but are not limited to, the Defense Superior Service Medal, Defense Meritorious Service Medal, Bronze Star Medal, and Purple Heart
* Military Compensation Chart which shows the monetary compensation between pay grades O-6 and O-5 over a 40 year post-retirement period
* Modified Reports of Investigation
* DAIG Allegations and Conclusions Report, dated 4 February 2012

13.  The applicant's counsel argues:

	a.  The applicant's subject relationship was a brief period of an otherwise stellar 30-year career and should not be the only factor in retiring him in a lower pay grade.

	b.  The letter of reprimand, with proceedings now part of his official military record, and the resulting professional and personal embarrassment, show the applicant "paid the price" for his actions.  The applicant openly acknowledged and accepted responsibility for his actions and his wife, his mother, and his two older children were aware of his relationship with his accuser and the birth of his daughter.

	c.  His relationship was a personal and private matter and had no bearing on his professional life, only coming to light after XXX made a claim of nonsupport.  That claim was later unsubstantiated by the investigation which found he had provided adequate monetary support for his daughter.  Further, at the time of the subject relationship, the applicant and his wife had been living separately for approximately 4 years, and formally separated for about 1 year and 6 months.  Further, as a part of their formal agreement, both the applicant and his wife agreed that they would "live and continue to live separate and apart for the rest of their lives; that they would be free from interference, authority, and control, direct or indirect, by the other as fully as if he or she was single and unmarried."

	d.  On 1 September 2007, the applicant was promoted to the rank of 
COL/O-6.  As a COL, his military service was a continuation of his prior outstanding service.  He participated in Operations Desert Shield/Storm and OIF and has received many awards which included but where not limited to the Bronze Star Medal for his exceptional meritorious service during combat operations while deployed to Baghdad, Iraq; and the Purple Heart for wounds received in action for fighting in Sadr City, when he refused evacuation to Landstuhl and returned to his command post to inspire and lead his outfit until his seriously injured foot healed.

	e.  The applicant's counsel contends the applicant has been a law-abiding citizen all his life, and always tried to do the right thing.  The subject allegations are not, and were not, representative of the life he led, or leads today.

	f.  Given the totality of the circumstances of the case, a retirement grade reduction would be unfair and not warranted.  The retirement pay grade of O-5 would result in a significant financial loss of retirement income of approximately $1,400.00 per month upon retirement; and over a period of 20 years, a loss of about $337,000.00; and over a 30-year period, a loss of about $615,000.00.  Considering the 30-year service of this outstanding Soldier, it is fundamentally unfair to subject the applicant to such a staggering financial penalty for the remainder of his life.

14.  Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made.

15.  A memorandum of reprimand may be filed in a Soldier's AMHRR only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached.  Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.  Paragraph 7-2 provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.

16.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  Table B-1 states a memorandum of reprimand is filed in the performance section of the AMHRR unless directed otherwise by an appropriate authority (Department of the Army Suitability and Evaluation Board (DASEB) or ABCMR). 

17.  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.

	a.  Paragraph 2-4 (Grade Determination Considerations) 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.  Circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the following:

		(1)  medical reasons, which may have been a contributing or decisive factor in a reduction in rank/grade, misconduct, or substandard performance;

		(2)  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 rank/grade determinations is the "highest grade satisfactorily served," not whether the individual has been sufficiently punished; and

		(3)  the rank/grade in which the misconduct was committed.

	b.  Paragraph 2-5 (Unsatisfactory Service) states service in the highest rank/grade or an intermediate rank/grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the rank/grade in question was unsatisfactory.  One specific act of misconduct may or may not form the basis for a determination that the overall service in that rank/grade was unsatisfactory, regardless of the period of time served in the rank/grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel request, in effect, that the applicant's GOMOR be vacated and removed from his official records; reversal of his retirement grade determination to allow him to retire in pay grade O-6; and restoration of all pay and allowances.

2.  His counsel contends that the applicant was living apart from his spouse from on or about 14 June 2007 and that his family was aware of his subject relationship and the birth of his daughter.  Further, that his entire 30-year exemplary career, which included the award of the Purple Heart, participation in two wars, laudatory performance evaluations, and many high-level assignments should be taken into consideration in determining his retirement grade.  His relationship was a personal and private matter and had no bearing on his professional life.  This one brief incident should not be the only factor in determining his retirement grade.  

3.  The evidence shows that a DAIG investigation substantiated the allegation that the applicant had engaged in a sexual relationship with a female local national, a person not his wife; resulting in the birth of a child for which he acknowledged paternity and the allegation of conduct unbecoming an officer.  The investigation further found the allegation that he failed to provide financial support to the child was unsubstantiated; however, he had failed to enroll the child in DEERS/Tricare.  Accordingly, he received a GOMOR for his adulterous actions.  He was afforded the opportunity to review all of the evidence against him and the elected not to submit matters in his own behalf.

4.  The applicant’s actions clearly demonstrate poor judgment.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline.  The applicant was a senior officer, upon whom the Secretary of the Army had reposed special trust and confidence in his patriotism, valor, fidelity, and professional excellence.  He was in a position of trust and authority.  Among the purposes of filing unfavorable information is protection, not just for the Soldier's interests but for the Army's as well.  Here, the applicant violated that trust.

5.  The applicant has not proven this GOMOR to be either untrue or unjust or that it has served its purpose.  There is an insufficient evidentiary basis that shows the contested GOMOR has served its intended purpose; therefore, there is also an insufficient reason to vacate or remove the GOMOR from his AMHRR.

6.  Notwithstanding his excellent record of service prior to this incident, given the gravity of the offense committed by the applicant that resulted in his GOMOR, it would be inappropriate to retire him in the higher grade.  Grade determinations are not considered punitive, and the standard for rank/grade determinations is the "highest grade satisfactorily served," not whether the individual has been sufficiently punished.

7.  In view of the above, there is no error or injustice in the actions of the AGDRB or any compelling evidence which warrants the relief requested as a matter of equity.

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)                                         AR20130011463





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ABCMR Record of Proceedings (cont)                                         AR20130011463



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