IN THE CASE OF:	  

		BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20130018560 


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, that the Army Board for Correction of Military Records (ABCMR) submit a recommendation to the Secretary of Defense (SecDef) that he be advanced on the Retired List to the rank/grade of Lieutenant General (LTG)/O-9 based upon the highest grade he held successfully. 

2.  The applicant states his request for waiver of the requirement to serve 3 years as an LTG was not acted upon.  As a result, he contends his retirement in the rank/grade of Major General (MG)/O-8 was unjust.  The applicant essentially states:

	a.  In February and March of 2007, a series of Washington Post articles on the so-called "conditions" at Walter Reed Army Medical Center (WRAMC) were published in an effort to demonstrate the "Cost of War."  Subsequent Congressional hearings in both the House and Senate, investigations of allegations of command neglect or mismanagement by the Gate's commission, the Department of the Army Inspector General (DAIG), and President Bush's Task Force all failed to substantiate any of these allegations at WRAMC or at the U.S. Army Medical Command, which he commanded during this period of time.  What was reconfirmed was a well-known fundamental disconnect between the Department of Defense (DoD) and the Department of Veterans Affairs over disability and retirement practices and policies which were not a function of his command or policies.

	b.  As proof of the unsubstantiated nature of the Washington Post allegations, the General Officer who had been removed from command of WRAMC during the height of the "publicity storm" in March 2007 was reinstated as the Commanding General of another major subordinate command of the U.S. Army Medical Command in November 2007.  This assumption of command took place after they both were cleared of any leadership failures by the DAIG and is to his knowledge an unprecedented action by the Army and speaks to how poorly this entire event was handled by both DA and DoD.

	c.  Upon conclusion of his testimony to Congress in mid-March 2007, he requested and the Acting Secretary of the Army (SecArmy) agreed to his retirement.  He was not relieved of command.  He requested a 4-month time in grade (TIG) waiver in order to retire in the rank of LTG.  His request went through the Chief of Staff of the Army, with his support to the Acting SecArmy, Mr. G, who stated he would support it also.  He then waited a full year on active duty for an answer to his request for a waiver.

	d.  The applicant attests that to his knowledge, the request was never forwarded to the Secretary of Defense (SecDef), who was the approval authority for the waiver.  By April 2008, he had to begin full-time work in a retirement status in his new civilian job and could no longer wait for an answer.  Despite several phone calls from the Chief of Staff of the Army requesting he wait longer, he had to request to retire as an MG while having never been denied the waiver.  Nor to the applicant's knowledge had the acting SecArmy denied the request at his level.  He was unjustly penalized by this lack of action and feels he deserved to retire as an LTG.

	e.  He has made several unsuccessful attempts to have this injustice corrected through the highest levels of DoD, DA, New York Senators, Congress, and the President.  Unlike several General Officers who have recently been involved in inappropriate actions and as a result have lost a star and have retired at lower General Officer rank, he served with distinction throughout his entire career right up to his last days on active duty.  And very similar to the circumstances surrounding General McChrystal's retirement as a four-star general while having only served a short time at that rank, he considers it a gross injustice that he should be penalized by the loss of a star in retirement with no apparent justification.  It would seem this resulted from either an administrative error or an ill-informed act of omission.

3.  The applicant provides:

* a self-authored memorandum addressed to the ABCMR
* a General Officer Management Office (GOMO) biography of himself
* a GOMO biography for MG W
* a DAIG Report of Investigation (ROI)
* two permanent change of station (PCS) orders
* a self-authored statement
* two letters of support
* his retirement service computation, orders, certificate, and letter
* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DD Form 215 (Correction to DD Form 214)
* documents showing he requested assistance in this matter from a United States Senator and provided the Senator a copy of his ABCMR application

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he was appointed as a captain on 1 July 1976 and entered active duty.  He served in various staff and leadership positions within and outside the continental United States and ascended through the officer ranks.  He was promoted to MG on 1 July 2000.  

3.  He served as Commanding General/Commandant/Installation Commander, United States Army Medical Department Center and School, Fort Sam Houston, TX, from June 2000 to June 2002.

4.  He served as Commanding General, North Atlantic Regional Medical Command/WRAMC, Washington, DC, from June 2002 to June 2004.

5.  On 30 September 2004, he was promoted to LTG and assumed the roles of Commanding General, United States Army Medical Command and The Surgeon General, Falls Church, VA.

6.  The applicant provides a DAIG ROI, dated 6 November 2007, which shows that on 1 March 2007 a Senator asked the DAIG to open an investigation into senior official accountability for problems that had been identified at WRAMC.

7.  On 11 March 2007, the applicant submitted a memorandum requesting voluntary retirement to the Chief, GOMO, Office of the Chief of Staff, Army, Pentagon, Washington, DC.  This memorandum indicates the applicant:

	a.  requested to be released from active duty and assignment on 31 May 2007, and placed on the retired list 1 June 2007, or as soon as practicable thereafter, under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges).  He indicated he will have completed over 30 years of active federal service and over 35 years of service for pay purposes on the requested retirement date.

	b.  believed he would be entitled to retire in the grade of LTG, if the Acting SecArmy supported, and the SecDef approved a 4-month TIG waiver.  He further requested consideration for a 4-month TIG waiver by the SecDef given his over 30 years of service to the Army and Nation.  He acknowledged his understanding that the SecDef would determine his retired grade and that he would be informed if he was not entitled to retire in the grade he had specified in this paragraph.

8.  The DAIG ROI shows that on 8 March 2007 a Congressman asked the Army to provide documents pertaining to complaints about conditions and care at WRAMC for the period 1 January 2002 to 6 March 2007.

9.  On 21 March 2007, the applicant was assigned for duty as the Special Assistant to the Commanding General, Falls Church, VA.

10.  In April 2007, an Independent Review Group (IRG), initiated by the SecDef to address the issues highlighted by the Washington Post newspaper, made findings regarding leadership failures in several areas concerning WRAMC's handling of the outpatient population and with certain DoD healthcare oversight processes.  Simultaneously, two command-directed investigations were conducted under the provisions of Army Regulation (AR) 15-6 (Procedures for Investigating Officers (IO) and Boards of Officers).

11.  The applicant provides a self-authored statement, rendered on or about 16 May 2007, wherein he acknowledged his understanding that under the provisions of Section 601(b)(4), Title 10 U.S. Code, his appointment to the grade of LTG ended on 20 March 2007, the date that he departed the position of Commanding General, United States Army Medical Command/The Surgeon General, and that he would revert to pay grade O-8 (MG) effective 19 May 2007.

12.  The DAIG ROI was finalized by The Inspector General and approved by the Army Vice Chief of Staff on 6 November 2007.  The DAIG ROI, the IRG Report, and the AR 15-6 investigations all found similar problems at WRAMC.  However, after a thorough review of the evidence obtained through 23 interviews and thousands of pages of documents, the DAIG found no impropriety by the applicant and determined he did not fail to take appropriate action.  Despite contrary assumptions that may previously have been drawn from an incomplete understanding of all the relevant facts, DAIG's investigation found no credible evidence that the leadership climate established by any of the subjects was uncaring, disengaged, incompetent, ignorant of the major issues, or otherwise failed to meet certain standards that could reasonably be expected of a similarly situated leader in like circumstances.

13.  On 8 November 2007, the applicant submitted a memorandum requesting voluntary retirement to the Chief, GOMO, Office of the Chief of Staff, Army, Pentagon, Washington, DC.  This memorandum indicates the applicant:

	a.  requested to be released from active duty and assignment on 29 February 2008, and placed on the retired list 1 March 2008, or as soon as practicable thereafter, under the provisions of Army Regulation 600-8-24.  He indicated he will have completed over 31 years of active federal service and over 35 years of service for pay purposes on the requested retirement date.

	b.  believed he would be entitled to retire in the grade of LTG, if the SecArmy supported, and the SecDef approved a 4-month TIG waiver.  He further requested consideration for a 4-month TIG waiver by the SecDef given his over 31 years of service to the Army and Nation.  He acknowledged his understanding that the SecDef would determine his retired grade and that he would be informed if he was not entitled to retire in the grade he had specified in this paragraph.

14.  On 1 April 2008, the Chief, GOMO, rendered a memorandum addressed to SecArmy, Mr G.

	a.  The Chief, GOMO stated the purpose of the memorandum was to request approval of the applicant's retirement in the grade of MG, and should the SecArmy do so, to obtain his signature on a memorandum to the Primary Under SecDef for Personnel and Readiness (PDUSD (P&R) notifying him that the Army intends to retire a General Officer in a grade below that which he previously held on active duty.

	b.  The Chief, GOMO provided the following points of discussion:

		(1)  On 8 November 2007, the applicant voluntarily requested to retire effective 1 March 2008.  He also requested a 4-month TIG waiver and retirement in the grade of LTG.

		(2)  On 18 March 2008, the applicant submitted another voluntary retirement application requesting to retire 1 May 2008 in the grade of MG.  He is no longer requesting a TIG waiver and consideration for retirement in the grade of LTG.  (He indicated the application and career résumé were attached, but the application is not available for review by the Board).

		(3)  On 28 March 2008, the SecArmy asked GOMO to process the applicant's retirement request in the grade of MG.

		(4)  The applicant was currently assigned to the Office of the Surgeon General and working on special projects, as assigned by Senior Army Leadership.  He was expected to depart his position on or about 4 April 2008.

		(5)  By approving this retirement request, the SecArmy was making an affirmative determination in accordance with Title 10 U.S. Code, section 1370(a) that MG (applicant's name) had served on active duty satisfactorily in his current grade for not less than 3 years.  The applicant had served in the grade of MG or higher since 1 July 2000.  He was appointed to the grade of LTG effective 30 September 2004 to serve as Commanding General, U.S. Army Medical Command/The Surgeon General.  He served in that position until 20 March 2007, a period of 30 months.  When he departed that position in March 2007, he intended to retire within 60 days and was authorized to continue to hold his appointed grade of LTG for an additional 60 days (until 19 May 2007).  Thus he served a total of 32 months as an LTG.  However, prior to the Army processing his retirement request, he became the subject of a DAIG investigation into an allegation that he, along with two other GOs, failed to take appropriate action with respect to the care and treatment of outpatient Soldiers at WRAMC.  At that time, it was decided to delay his eventual retirement until the DAIG completed its investigation.

		(6)  On 6 November 2007, the DAIG completed its investigation of the allegation against the applicant and determined that the allegation was unsubstantiated.  (A copy of the DAIG executive summary and ROI were provided as attachments).

		(7)  Current SecDef policy required that the Army notify the SecDef, through the PDUSD (P&R), of the Army's intention to retire a General Officer in a grade below that currently held.  Although the policy would not apply to the applicant's situation, as the SecArmy's approval of the applicant's retirement request would not result in his retirement in a grade lower than the one he currently held, the Office of the General Counsel believed it was nonetheless prudent to notify the PDUSD (P&R) of the Army's intention to retire the applicant in a grade lower than the highest grade he previously held on active duty.  Should the SecArmy approve the applicant's request to retire in the grade of MG, this notification was provided as an attachment.

	c.  As pertains to coordination, the Chief, GOMO stated all systems of records that pertain to the applicant had been examined.  Although the applicant had received significant attention from the media and Congress pertaining to the care and treatment of wounded Soldiers at WRAMC, the files contained no adverse information about him since his last Senate confirmation.  Further, to the best of his knowledge there was no planned or ongoing investigation or inquiry into matters that constituted alleged adverse information on the part of the applicant.  There also were no allegations pending against the applicant, nor was he expected to be otherwise identified as having been associated with improprieties related to any other matters.  The Office of the General Counsel had reviewed this action and had no legal objections.

	d.  In view of the foregoing, the Chief, GOMO recommended the SecArmy approve the applicant's retirement in the grade of MG by initialing this memorandum and signing the memorandum to the PDUSD (P&R) notifying him that the Army intended to retire a General Officer in a grade below that which he previously held on active duty.

	e.  The Chief of Staff of the Army concurred with the recommendation and the SecArmy indicated his approval by initialing the memorandum.

15.  U.S. Army Human Resources Command, Alexandria, VA, Orders 94-2, dated 2 April 2008, show the applicant was retired from active service, released from assignment and duty on 30 April 2008, and on 1 May 2008 placed on the retirement list.  These orders also show the following pertinent information:

* Retirement Grade:  MG
* Date of Rank:  1 July 2000
* Statute Authorizing Retirement:  Title 10, U.S. Code, sections 1370 3918
* Active Federal Service:  31 years, 10 months, and 0 days

16.  On 3 April 2008, the SecArmy rendered a memorandum notifying the PDUSD (P&R) that in accordance with PDUSD (P&R) Memorandum, Subject:  Informing the Secretary of Downward Grade Adjustments, dated 13 August 2003, he was notifying the PDUSD (P&R) that the applicant, who served 32 months in the grade of LTG, would be retired in the grade of MG.



17.  The applicant's DD Form 214 shows he was honorably retired from active duty on 30 April 2008 in the grade of MG with an effective date of rank of 1 July 2000.  His Certificate of Retirement shows he was placed on the Retired List on 1 May 2008 in the grade of MG.

18.  The applicant provides two letters of support:

	a.  On 30 September 2013, the Dean and Executive Vice President for Health Affairs, Albany, Medical College, Albany, NY, rendered a letter wherein he strongly requested favorable consideration of the applicant's request and attested his retirement as an MG was truly an unjust end to his distinguished career.  He added that the applicant had served as a chairman on the staff at Albany Medical Center since January of 2008 and had continued to be an absolutely outstanding leader, educator and mentor in the Department which he had turned around and was a superb contributor not only to Albany Medical Center, but to the entire community of Albany.

	b.  On 30 September 2013, retired General K, former Vice Chief of Staff of the Army, rendered a letter wherein he strongly requested favorable consideration of correcting the record and returning the applicant to the rank of three-star general.
He contends the applicant's career was certainly exemplary as he distinguished himself at every level of command and staff while rising to the position of the top medical officer as the Army's Surgeon General.  He attests that what differentiated the applicant was the strength and character of his leadership and that he was one of the most extraordinary medical officers he had ever observed in almost 38 years of service.  General K chose to familiarize himself with this case because, after having observed the key events and decisions leading to retirement and reduction in grade, it was apparent something was wrong.  During General K's career, he was involved in hundreds of General Officer investigations and adjudications.  Some cases, such as this one, occurred in a politically charged environment due to the public exposure of unfortunate circumstances and it is in those incidents, our system, at times, is most susceptible to fail the individual in rendering a fair and just decision.  He expounded that there was a rush to judgment driven by the interest of the media, Congress, the White House, and the SecDef feeling the pressure to take action prior to an appropriate investigation of the facts to determine what happened.  General K also noted the applicant's subordinate commander, who had been relieved, was reinstated in a new command, because the investigation concluded that he was not accountable.  General K concluded that it makes no sense that the applicant was reduced in grade for actions even his subordinate commander was not being held accountable for and moreover for which he was reinstated in command.

19.  On 29 October 2013, a U.S. Senator asked the Chief Army Legislative Liaison to review the applicant's request and to provide her feedback on the outcome.
20.  Title 10 U.S. Code, section 1370 (Commissioned officers:  general rule; exceptions) provides in subparagraphs:

	(a)  Rule for Retirement in Highest Grade Held Satisfactorily (2)(A):  In order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years.

	(c)  Officers in O-9 and O-10 Grades:

		(1)  An officer who is serving in or has served in the grade of general or admiral or lieutenant general or vice admiral may be retired in that grade under subsection (a) only after the Secretary of Defense certifies in writing to the President and Congress that the officer served on active duty satisfactorily in that grade.

		(3)  The Secretary of Defense may delegate authority to make a certification with respect to an officer under paragraph (1) only to the Under Secretary of Defense for Personnel and Readiness or the Deputy Under Secretary of Defense for Personnel and Readiness.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be advanced on the Retired List to the rank/grade of LTG/O-9 based upon the highest grade he held successfully was carefully considered.

2.  Evidence shows the applicant was promoted to MG on 1 July 2000.  He was subsequently promoted to LTG when he assumed the roles of Commanding General, United States Army Medical Command and The Surgeon General, Falls Church, VA on 30 September 2004.

3.  In early March 2007, the applicant was identified as the subject of numerous investigations.  On 11 March 2007, while the investigations were still being conducted, he submitted a voluntary request to be released from active duty and assignment on 31 May 2007, and placed on the retired list 1 June 2007.  He further requested a TIG waiver in order to be retired in the grade of LTG, if the Acting SecArmy supported, and the SecDef approved a 4-month TIG waiver.
4.  There is neither any evidence nor indication that shows the applicant was either encouraged or required to submit a request for retirement.

5.  On 21 March 2007, he was assigned for duty as the Special Assistant to the Commanding General, Falls Church, VA.  On or about 16 May 2007, the applicant rendered a written acknowledgement of his understanding that under the provisions of Section 601(b)(4), Title 10 U.S. Code, his appointment to the grade of LTG ended on 20 March 2007, the date that he departed the position of Commanding General, United States Army Medical Command/The Surgeon General, and that he would revert to pay grade O-8 (MG) effective 19 May 2007.

6.  The DAIG ROI was finalized by The Inspector General and approved by the Army Vice Chief of Staff on 6 November 2007.  Although the DAIG ROI, the IRG Report, and the AR 15-6 investigations all found similar problems at WRAMC; the DAIG found no impropriety by the applicant and determined he did not fail to take appropriate action.  Additionally, the  DAIG's investigation found no credible evidence that the leadership climate established by any of the subjects was uncaring, disengaged, incompetent, ignorant of the major issues, or otherwise failed to meet certain standards that could reasonably be expected of a similarly situated leader in like circumstances.

7.  On 8 November 2007, the applicant submitted another voluntary request to retire effective 1 March 2008.  He again requested a 4-month TIG waiver and retirement in the grade of LTG.

8.  On 18 March 2008, the applicant submitted another voluntary retirement application requesting to retire 1 May 2008 in the grade of MG.  He no longer requested a TIG waiver and consideration for retirement in the grade of LTG.  

9.  The SecArmy asked GOMO to process the applicant's retirement request in the grade of MG.  The application was processed accordingly and it was determined the files contained no adverse information about him since his last Senate confirmation and there were no planned or ongoing investigations or any other reason to further delay the applicant's retirement.

10.  The SecArmy was advised in writing that by approving this retirement request he was making an affirmative determination in accordance with Title 10 U.S. Code, section 1370(a) that the applicant had served on active duty satisfactorily in his current grade of MG for not less than 3 years.  The applicant had served in the grade of MG or higher since 1 July 2000.


11.  The SecArmy was well aware that the applicant was appointed to the grade of LTG effective 30 September 2004 to serve as Commanding General, U.S. Army Medical Command/The Surgeon General and that he had served a total of 32 months as an LTG.  The Office of the General Counsel had reviewed this action and had no legal objections.  The Chief of Staff of the Army concurred with the recommendation and the SecArmy approved the applicant's retirement in his then current grade of MG.  There is no evidence that this decision was beyond the discretion of the SecArmy or failed to comply with existing regulatory guidance.

12.  On 3 April 2008, in accordance with SecDef policy, the SecArmy made the required notification through the PDUSD (P&R) to the SecDef of the Army's intention to retire the applicant, who had served 32 months in the grade of LTG, in the grade of MG.  This notification, provided in accordance with DoD policy, was provided before the applicant's retirement.  The SecDef had the authority and discretion to act to grant the applicant a waiver and allow the applicant to retire in the grade of LTG.  The absence of this action to allow him to retire in the higher grade serves as the SecDef's decision, as no formal action was required.

13.  The record is void of any indication that the SecDef disagreed with this decision or made any attempt to delay the action.  The SecDef's failure to act constitutes his decision and was handled consistent with DoD policy.

14.  As a result, the applicant was honorably retired from active duty on 30 April 2008 and placed on the Retired List on 1 May 2008 in the grade of MG with an effective date of rank of 1 July 2000.  

15.  Title 10, U.S. Code clearly stipulates that in order for a commissioned officer of the Army to retire in the highest grade held satisfactorily, he must have served on active duty in that grade for not less than three years, unless the Secretary of Defense authorizes the Secretary of a military department to reduce such period.
Additionally, the SecDef must send a report to Congress in order for the Soldier to retire in the higher grade.

16.  The ABCMR does not have jurisdiction to revisit actions of the Office of the SecDef.  The Board only has jurisdiction to correct Army records.  The ABCMR, therefore, does not have jurisdiction to correct the record to show the SecDef granted a TIG waiver and reported to Congress that the applicant would be allowed to retire as an LTG.




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)                                         AR20130018560





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ABCMR Record of Proceedings (cont)                                         AR20130018560



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