IN THE CASE OF:	   

		BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20130012690 


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 retired in the rank/grade of lieutenant colonel (LTC)/O-5.

2.  The applicant states the Army Grade Determination Review Board (AGDRB) considered information that was erroneously placed in his Army Military Human Resource Record (AHMRR) and has since been removed.  Specifically, Major General (MG) J____ C. M____, the imposing commander for his general officer memorandum of reprimand (GOMOR), never intended the findings of an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation to be enclosed with the GOMOR, and once this mistake was discovered, MG J____ C. M____ immediately took steps to remove the documents.  However, those documents remained in his AHMRR and were considered by the board.  Also, the GOMOR was the sole basis for the AGDRB, and MG J____ C. M____ stated he desired that the board allow him to retire at the grade of O-5.  MG J____ C. M____, as stated in his memorandum to the Board, never intended or realized that his decision would trigger a review by the AGDRB.

3.  The applicant provides memoranda, dated 27 February 2013 and 27 March 2013, and various email.


CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant was appointed as a Regular Army commissioned officer on 15 August 1993.  He was promoted to LTC on 1 June 2010.  He is currently serving in the rank/grade of LTC/O-5.

2.  His record contains a voluntary request for retirement, dated 24 January 2013, wherein he requested to be released from active duty on 30 September 2013 and placed on the Retired List on 1 October 2013, or as soon thereafter as practicable.  His chain of command concurred with his request and recommended approval.

3.  His record contains a GOMOR from the Commanding General, 101st Airborne Division (Air Assault) and Fort Campbell, dated 30 January 2013, wherein MG J____ C. M____ stated:

	a.  The applicant was being reprimanded for making comments disloyal to his brigade combat team (BCT) commander and demonstrating poor judgment.

	b.  On 15 August 2012, an Army Regulation 15-6 investigation conducted by the Deputy Commanding General for Operations, 101st Airborne Division (Air Assault) and Fort Campbell, found the applicant committed this misconduct while he was in command of 2nd Battalion, 506th Infantry Regiment, 4th BCT.  The investigation also found that an unhealthy command relationship existed between the applicant and his BCT commander and while the applicant's commander made every reasonable effort to resolve friction points, the applicant, as the subordinate commander, took an unprofessional approach by engaging in persistent subversive actions that failed to resolve the pertinent issues.

	c.  From 21 August 2012 (when the applicant was issued a letter of concern) through 27 October 2012, the applicant failed to regain the total trust and confidence of his BCT commander.  On 29 October 2012, the applicant was temporarily suspended.  MG J____ C. M____, having lost confidence in his ability to command, relieved him from his command on 17 December 2012 based on his acts of misconduct and poor judgment.

	d.  The reprimand was being imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice.  MG J____ C. M____ intended to direct filing of this reprimand in the applicant's AMHRR.  However, he indicated that any matters submitted in rebuttal would be considered before that action was taken.

4.  The applicant acknowledged receipt of the GOMOR on 5 February 2013 and did not submit any matters or a rebuttal in his own behalf.

5.  His records contain a memorandum from the U.S. Army Human Resources Command (HRC), dated 13 March 2013.  HRC stated the applicant received a GOMOR for making comments disloyal to his BCT commander while serving as a subordinate commander.  As such, HRC requested a review of the applicant's voluntary retirement request by the AGDRB to determine the highest grade in which he served satisfactorily for retirement purposes.

6.  His records contain a memorandum from the AGDRB, dated 25 April 2013, which shows the AGDRB reviewed his voluntary request for retirement and grade determination.  Based on this review, the Deputy Assistant Secretary of the Army (Review Boards) directed that he would be placed on the Retired List in the rank/grade of major (MAJ)/O-4 if his retirement request was approved.

7.  His AMHRR does not currently contain a copy of the Army Regulation 15-6 investigation.  Additionally, there is no evidence of record to show the AGDRB viewed the Army Regulation 15-6 investigation or that it was used as the basis for, or considered a determining factor in, the AGDRB decision to place him on the Retired List in the rank/grade of MAJ/O-4 vice LTC/O-5.

8.  He provided a memorandum from the Commanding General, 101st Airborne Division (Air Assault) and Fort Campbell, dated 27 February 2013, wherein MG J____ C. M____ stated he did not intend for the Army Regulation 15-6 investigation to be placed in the applicant's AMHRR as an allied document to accompany the GOMOR and requested immediate removal of the Army Regulation 15-6 investigation from his AMHRR.

9.  He provided a memorandum from the Commanding General, 101st Airborne Division (Air Assault) and Fort Campbell, dated 27 March 2013, wherein MG J____ C. M____ essentially stated that the GOMOR was intended as an administrative punishment, not as a means to trigger a grade determination board.  MG J____ C. M____ stated the applicant had a long and successful career until the incident that led to the GOMOR occurred and he felt that he should be permitted to retire in the rank/grade of LTC/O-5 based on his previous exemplary service.

10.  He provided various email from his defense counsel to the senior legal advisor of the Army Review Boards Agency (ARBA), ranging in date from 29 May 2013 to 27 June 2013.  These email show the applicant's counsel was concerned about whether the AGDRB would have viewed the Army Regulation 15-6 investigation filed in the AMHRR and stated that the investigation would soon be removed because it was erroneously filed.  The ARBA legal advisor indicated that the board would have had access to view it if the investigation was filed in the AMHRR.

11.  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 contends that the AGDRB made the decision to place him on the Retired List in the rank of MAJ vice LTC because of an Army Regulation 15-6 investigation that was filed in his AMHRR at the time the board convened.

2.  An Army Regulation 15-6 investigation determined he demonstrated poor judgment while serving as a subordinate commander and committed misconduct by making comments that were disloyal to his BCT commander.  He created an unhealthy command relationship between himself and his BCT commander by engaging in unprofessional, persistent, and subversive actions that failed to resolve the pertinent issues despite the fact that his BCT commander made every reasonable effort to resolve friction points.  His misconduct and unprofessional behavior eventually led to his temporary suspension and finally his relief from command.

3.  The evidence of record did not conclusively show the AGDRB used the Army Regulation 15-6 investigation as a factor in determining the highest grade in which he served satisfactorily.

4.  Nevertheless, the GOMOR as a stand-alone document clearly illustrates his misconduct and poor judgment.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature as to bring discredit in the Army or is 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 command 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.  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.

6.  In view of the above, there is no error or injustice in the actions of the AGDRB or any compelling evidence which warrants 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)                                         AR20130012690



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ABCMR Record of Proceedings (cont)                                         AR20130012690



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