IN THE CASE OF:	

		BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130017261


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 retirement orders to show he was retired in the rank/grade of major (MAJ)/O-4, versus captain (CPT)/O-3.

2.  The applicant states his retirement orders stipulate he be retired as a CPT.  A representative from the U.S. Army Human Resources Command (HRC) informed him that CPT was the highest grade in which he satisfactorily served; however, he respectfully disagrees and asks the Board (Army Board for Correction of Military Records (ABCMR)) to amend this injustice to acknowledge his nearly seven years of honorable service as a MAJ.

3.  In a separate 2-page memorandum accompanying his application for relief, the applicant further states:

* while assigned to U.S. Special Operations Command (USSOCOM), he continued to receive Combat Pay and Allowances the year after his 2005 deployment in support of Operation Iraqi Freedom (OIF)
* he has no one to blame for this incident; it was his responsibility to ensure his finances were in proper order
* he failed to do so and was severely punished in 2006 
* he received an Article 15, a General Officer Memorandum of Reprimand (GOMOR), and referred Officer Evaluation Report (OER)
* he accepted full responsibility for his negligence and has been diligent with not only his finances but all paperwork since this event
* during his service in the subsequent years, he made significant strides professionally and personally
* he repaired his integrity in the eyes of his subordinates, peers, and supervisors
* in the almost seven years after his lapse, he served honorably as a MAJ
* on 31 January 2013, a show-cause board convened to review all the facts and circumstances of the event, as well as evidence regarding his performance and professional growth over the intervening years
* this board determined he should be retained on active duty without reassignment
* during this board, Lieutenant General (LTG) (Retired) Dxxx Dxxxxx, the General Officer who presided over the Article 15 and issued the GOMOR, testified in his defense
* according to his testimony, LTG Dxxxxx stated that his decision to place the unfavorable documents in his permanent fiche was a mistake
* he informed the board that his intent was to ensure he would not be competitive for battalion command and to serve as an example to the other officers at USSOCOM; he did not intend for him to be passed over for promotion or to depart Army service
* in his testimony, LTG Dxxxxx stated he regretted the unintended and extended consequences of his filing decision as he considered them neither appropriate nor in the best interests of the Army
* he strongly recommended the show-cause board members vote to retain him in military service
* LTG Dxxxxx has followed his career since he departed his command
* as illustrated in his testimony, and several letters of support, LTG Dxxxxx endorsed his service as honorable and valued
* while the board agreed a GOMOR was warranted for failure to maintain his financial records, they deemed there was no conduct unbecoming on his part and elected to retain him in service
* the Deputy Commanding General (Rear), Brigadier General (BG) Jxxx Hxxx, concurred with the board’s decision and asked that he not be reassigned as he was serving in a key position on the General’s Staff
* his conduct since receiving the GOMOR and referred OER reflects honorable service to the Army
* he has served in three Key Developmental (KD) positions as a MAJ for over 59 months
* he served as a Battalion S3 (Operations) for 19 months, a Battalion Executive Officer (XO) for 13 months, and as the Division Deputy G2 (Intelligence and Security) for the past 27 months - his OERs during these assignments have been included for review
* for the past year, while his Division Headquarters has been deployed to Afghanistan, he has been the G2 (Rear), a primary staff position
* as his OERs demonstrate, he was competent, valuable, and highly regarded by his raters and senior raters in all three KD positions
* without question, he has clearly demonstrated extremely capable and honorable service as a MAJ in the U.S. Army
* included with his application are several letters of support asking the Board to change his retirement rank from CPT to MAJ
* there are letters from General Officers and Colonels who believe it was a mistake he was retired as a CPT
* his supporters validate his exemplary performance as a MAJ and request he be retired in that grade – he asks the Board to value their opinions and acknowledge their endorsements of his time as a MAJ
* he respectfully petitions the ABCMR to determine his time served as a MAJ since 2006 has been honorable, and allow him to retire as such
* he humbly believes his performance over the past seven years reflects the character of a Veteran who both embodies the Army values and served our Nation with honor

4.  The applicant provides:

* Orders 232-0002, issued by Headquarters, Third Infantry Division and Fort Stewart, Fort Stewart, GA on 20 August 2013
* seven separate DA Forms 67-9 (OER), covering the period 1 January 2007 through 15 July 2013
* six separate third-party letters of support – 1 each from a LTG (Retired), a Major General (MG), and a BG, 2 from COLs, and 1 from a Lieutenant Colonel (LTC) (promotable) 

CONSIDERATION OF EVIDENCE:

1.  On 1 June 1996, the applicant was commissioned as a second lieutenant in the Regular Army, in the military intelligence (MI) branch, following his graduation from the U.S. Military Academy at West Point, NY.

2.  On 16 April 1998, he was promoted to first lieutenant; on 1 May 2000, he was promoted to CPT.  

3.  His record shows he deployed to Iraq in support of OIF, from on or about     15 February 2005 through on or about 15 June 2005.

4.  On 1 June 2006, he was promoted to MAJ.

5.  On 18 July 2006, an investigating officer (IO) was appointed to investigate the applicant's alleged misconduct; specifically, violations of Articles 92 (Failure to Obey an Order or Regulation) and 107 (False Official Statement) of the Uniform Code of Military Justice (UCMJ).  The alleged misconduct involved his continued receipt of Hostile Fire and Imminent Danger Pay (HF/IDP) during a period of approximately 12 months following his redeployment from Iraq.

6.  The IO concluded his investigation and recommended the case be referred to the U.S. Army Criminal Investigation Command (CID) for further investigation based on possible criminal activity.  It is unclear whether his recommendations were accepted and acted upon.

7.  On 27 October 2006, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for dereliction of duty and making a false and fraudulent claim, both Charges resulting from his receipt of HF/IDP.

8.  Following his receipt of NJP, he was given a GOMOR by the Commander, U.S. Army Element, USSOCOM, for misconduct involving his continued receipt of HF/IDP following his redeployment from Iraq.

9.  On 26 February 2007, he received a referred OER for the period 1 January 2006 through 31 December 2006.

10.  On 10 November 2011, the Department of the Army Suitability Evaluation Board (DASEB) denied his request for the transfer of his Article 15 and GOMOR to the restricted folder in his Official Military Personnel File (OMPF).

11.  On 13 December 2011, the ABCMR denied his request for the transfer of his referred OER to the restricted folder in his OMPF.

12.  On 27 February 2012, he was notified that he was identified by the Fiscal Year 2011 (FY11) LTC, Army, Operations Support (OS) Promotion Selection Board to show cause for retention on active duty because of misconduct, moral, or professional dereliction.

13.  On 20 November 2012, a show-cause board convened, considered his elimination, and recommended he be retained on active duty and not reassigned.

14.  On 23 April 2013, the ABCMR denied his request for reconsideration of his previous request for the transfer of his referred OER to the restricted folder in his OMPF.

15.  On 27 June 2013, he was notified that he was non-selected by the FY13, LTC, Army, Maneuver, Fires and Effects, OS, and Force Sustainment Promotion Selection Board.  This non-selection constituted his second non-selection, necessitating his separation from the Army no later than 1 December 2013.  The notification memorandum also advised him of his right to request early retirement via the Department of the Army, Temporary Early Retirement Authority (TERA).

16.  On 1 July 2013, he requested early retirement in accordance with the provisions of TERA.

17.  On 14 August 2013, the Acting Deputy Assistant Secretary of the Army (Army Review Boards) directed he be placed on the Retired List in the rank/grade of CPT/O-3, upon approval of his early retirement request.    

18.  Orders 2332-0002, issued by Headquarters, Third Infantry Division and Fort Stewart, Fort Stewart, GA on 20 August 2013, announced his retirement from the Army in the rank/grade of MAJ/O-4, effective 30 November 2013, and his placement on the Retired List in the rank/grade of CPT/O-3, effective 
1 December 2013.

19.  On 30 November 2013, he was retired from the Army.  His DD Form 214 shows his rank/grade of MAJ/O-4.   Item 18 (Remarks) contains the entry "Retired List Grade CPT," indicating he was placed on the Retired List in the rank/grade of CPT/O-3.

20.  He provides six separate third-party letters of support – 3 from General Officers and 3 from colonels.  

   a. One of the letters is authored by LTG Dxxxxx, the officer who imposed the Article 15 and GOMOR.  In his letter, he states these two documents have hindered the career of [Applicant] well beyond their intended purpose.  Over the past two and a half years, he recommended to the DASEB and the ABCMR the unfavorable documents against him be transferred to the restricted folder in his AMHRR.  He also wrote letters on his behalf for inclusion in his promotion consideration file and appeared on his behalf at his show-cause board.  LTG Dxxxxx further describes the applicant's merits and his belief he's earned the right to retire as a MAJ.

   b. One of the letters is authored by MG Kxxxxx, who was the applicant's former brigade commander.  This General Officer has the highest praise and respect for the applicant's service as a MAJ and implores the Board to allow him to be retired as a MAJ.

   c. One of the letters is authored by BG Hxxx, who was the applicant's deputy division commander during his tenure with the 3rd Infantry Division.  Again, this General Officer has the highest praise and respect for the applicant's service as a MAJ and implores the Board to allow him to be retired as a MAJ.

   d. Three of the letters are authored by colonels who once commanded the applicant during the period in which he served as a MAJ.  These officers all strongly endorse his request to be retired in the rank of MAJ.

21.  Army Regulation 15-80 (AGDRB and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB.  

   a. 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.

   b. Paragraph 2-5 outlines grade determination considerations.  It states that service in a higher grade will normally be considered unsatisfactory if reversion to a lower grade was expressly for prejudice or cause; owing to misconduct; caused by non-judicial punishment pursuant to Article 15 of the UCMJ; or the result of the sentence of a court-martial.  It also states that service will be considered unsatisfactory if there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory.

22.  Title 10, U.S. Code (USC), section (§) 1370 (10 USC § 1370) (Commissioned Officers: General Rule; Exceptions) provides the legal basis for determining the highest grade satisfactorily held in cases involving the retirement of commissioned officers.  It provides that unless entitled to a higher retired grade under some other provision of law, a retiring commissioned officer of the Army shall be retired in the highest grade in which he/she served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show he was placed on the Retired List in the rank/grade of MAJ/O-4.

2.  The evidence or record shows he received an Article 15, GOMOR, and referred OER.  While a show-cause board did recommend his retention on active duty, the alleged misconduct was sufficiently investigated and substantiated.  There is no evidence that shows either the Article 15, GOMOR, or referred OER were unjust or improper.  

3.  Army Regulation 15-80 provides that service in a higher grade will normally be considered unsatisfactory if reversion to a lower grade results from misconduct.   Accordingly, his service as a MAJ was determined to have been unsatisfactory, and the highest grade in which he served satisfactorily was CPT.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20090005877



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ABCMR Record of Proceedings (cont)                                         AR20130017261



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