BOARD DATE:	  28 May 2014

		DOCKET NUMBER:  AR20140005984 


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, reversal of the Army Grade Determination Review Board (AGDRB) decision to place her on the Retired List in the rank of captain (CPT).

2.  The applicant states she did not have the opportunity to present matters before the AGDRB because she was incarcerated and did not have access to her records.  As a result of the AGDRB's decision she was reduced to CPT for retirement purposes.  The AGDRB's decision was based on two General Officer Memoranda of Reprimand (GOMORs) she received during a period when she was suffering from reprisal from members of her chain of command.  Additionally, her court-martial was based on misconduct occurring during the same period of time she was being harassed and on unlawful orders.

3.  The applicant provides a 26-page document entitled "Article 138 Complaint, Report of Criminal Conduct, [Standard Form] SF 95's [Claim for Damage, Injury, or Death] – Damage Claims," dated 18 March 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer on 
20 December 1990.  She served in various assignments in the U.S. Army Reserve (USAR) and in the Active Guard Reserve (AGR) program.  The highest rank she attained was major (MAJ).

2.  Her record shows she was promoted to MAJ on 19 June 2005.
3.  Her record contains an Offense/Incident Report issued by the Belton, MO Police Department on 27 May 2010.  This report indicates that she was charged with driving while intoxicated (DWI) and prohibited parking.  The applicant refused to take a breathalyzer and refused to sign the necessary forms indicating her refusal.  

4.  Her record contains an Officer Evaluation Report (OER) for the rating period 26 October 2009 through 4 June 2010.  This OER does not mention her DWI incident.  Her rater checked the block "Satisfactory Performance, Promote" and indicated that with additional experience as a MAJ she should be considered for promotion.  Her senior rater checked the blocks for "Fully Qualified" and "Center of Mass" and indicated that she completed her duties with minimal supervision and would be competitive for promotion with additional experience.  She refused to sign the OER.

5.  Her record contains a GOMOR, dated 13 September 2010, which shows the charges against her for DWI were amended to defective equipment and the court allowed her to plead guilty to that charge.  The court also found her guilty of illegal parking.  The imposing GO stated that although she was not convicted of DWI, he could not condone her behavior in public and her behavior with the police officer.  As such she was reprimanded for her conduct.  The GOMOR was imposed as an administrative measure and was filed in her Army Military Human Resource Record (AMHRR).  Her record does not contain any information to indicate that she provided a written or other response to the GOMOR.

6.  Her record contains an Offense/Incident Report issued by the Belton, MO Police Department on 17 December 2010.  This report indicates that she was charged with DWI.  The applicant refused to take a breathalyzer and refused to sign the necessary forms indicating her refusal.  The police reports indicate that the applicant caused a multi-car accident because she was driving too fast and then attempted to flee the scene.  

7.  Her record contains a GOMOR, dated 22 January 2011, which shows she was charged with DWI and violating three city ordinances:  Leaving the main portion of the roadway - accident, careless driving with accident, and driving without a seatbelt.  She also failed to submit to field sobriety tests and chemical breath testing.  As such she was reprimanded for her misconduct.  The imposing GO noted that this was the second reprimand she had received for an alcohol-related driving incident.  The GOMOR was imposed as an administrative measure and was filed in her AMHRR.  Her record does not contain any information to indicate that she provided a written or other response to the GOMOR.
8.  Her record contains a relief for cause OER for the rating period 5 June 2010 through 25 January 2011.  This OER was a referred report and she refused to sign it.  It shows:  

	a.  Her rater checked "NO" blocks for the "Integrity" value; the "Mental" and "Emotional" attributes; the "Conceptual," "Interpersonal," "Technical," and "Tactical" skills; the "Communicating," "Decision-Making," and "Motivating" influencing actions; the "Planning," "Executing," and "Assessing" operating actions; and the "Developing," and "Building" improving actions.  

	b.  Her rater rated her performance as "Unsatisfactory Performance, Do Not Promote" and stated "[Applicant's] performance during this rating period has been unsatisfactory.  Her inability to interact with senior officers, peers, and subordinates during this rating period created difficulties across… [the battalion and brigade,]… thus hindering operations.  In spite of consistent counseling sessions, repeated attempts to correct deficiencies, and changes in job responsibilities [the applicant] continued to have issues completing assigned tasks.  In the end her duties had been reduced to handling only Defense Travel System (DTS) requirements and the Unit Status Report (USR) turn-in.  For these reasons the Battalion Commander relieved her for cause.  During this rating period, [Applicant] also received two [GOMORs] for off duty alcohol related incidents."  Her rater also stated that she had not completed Intermediate Level Education (ILE) and included the statement "Do not promote."

	c.  Her intermediate rater stated "[Applicant] completed routine tasks under close supervision.  Unfortunately the job of Operations Officer DEMANDS MORE.  She repeatedly failed to meet suspenses, no doubt the result of poor attendance, failure to plan, and inability to communicate.  In person, email, and phone, [the applicant] was routinely disrespectful and undermined this command, peers, and subordinates.  [Applicant] was given an extended period of time to focus on developing her leadership skills but had decided to remain defiant and unresponsive.  Due to these failures… [her intermediate rater]… ordered [the applicant] to be relieved for cause and recommended separation from the Army."

	d.  Her senior rater checked the block "Below Center Of Mass, Do Not Retain" and stated "[Applicant's] conduct and performance has been unacceptable for an officer in the United States Army and cannot be tolerated.  [The applicant] was given 30 days to acknowledge and comment [on OER].  This was extended 3 weeks until 1 April 2011 on her request.  As of 1 April 2011, she has failed to sign, acknowledge or submit comments to this OER.  Do not retain.  The rated officer refused to sign."

9.  Her record contains a memorandum entitled Involuntary Separation Board Results, issued by Headquarters, U.S. Army Reserve Command, Fort Bragg, NC, on 29 March 2012.  This memorandum was forwarded to the U.S. Army Human Resources Command (HRC) for action and indicated that the results of an involuntary separation board were enclosed.  

10.  Her record contains a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), issued by HRC, on 12 July 2012, informing her she had completed the required years of qualifying Reserve service and was eligible for retired pay on application at age 60.

11.  Her record contains three DA Forms 4187 (Personnel Action) and a DD Form 616 (Report of Return of Absentee) ranging in date from 14 April 2012 to 28 June 2013.  

	a.  The DD Form 616 in her record shows she went absent without leave (AWOL) on 14 April 2012 and was reported as a deserter.  She surrendered to military authorities at Fort Leavenworth, KS on 31 May 2012.

	b.  On 3 October 2012, her duty status changed from present for duty (PDY) to AWOL.  The DA Form 4187 this information was recorded on also states that she had been AWOL from her temporary duty (TDY) location at Headquarters and Headquarters (HHC), U.S. Army Civil Affairs and Psychological Operations Command (Airborne) (USACAPOC (A)), Fort Bragg, NC since 3 October 2012.  She had informed her immediate supervisors and commander that she was going to go AWOL and did not plan on returning.

	c.  On 17 October 2012, her duty status changed from PDY to military confinement on 17 October 2012.  The DA Form 4187 this information was recorded on also states that on 18 October 2012, she was transferred to the Lee County, NC jail and on 24 October 2012, she was further transferred from the Lee County jail to the Chesapeake, VA Naval Brig.

	d.  On 28 June 2013, her duty status changed from PDY to civilian confinement.  

12.  Her record contains a DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 6 September 2012.  This form shows she was considered for the disability of Post-Traumatic Stress Disorder (PTSD).  The PEB found she was medically unfit and recommended a rating of 50 percent (%) and that she be placed on the Temporary Retired Disability List (TDRL) with a reexamination in May 2013.  She did not concur with the PEB's findings and demanded a formal hearing.  However, there is no record of a formal hearing.
13.  On 13 June 2013, she was convicted by a general court-martial of: 

* six specifications of disobeying the lawful command of her superior commissioned officer to report to him for duty on divers dates
* three specifications of being AWOL, from 14 April to 30 May 2012, 3 June to 2 July 2012, and 3 to 17 October 2012
* two specifications of behaving with disrespect toward superior commissioned officers

14.  The court sentenced her to confinement for 75 days and a reprimand.  The convening authority approved the sentence on 27 November 2013.  She was credited with 190 days of confinement against the sentence to confinement.  Additionally, she was reprimanded for her actions that brought disgrace to herself and to the Armed Forces of the United States.  The general court-martial order stated that her behavior was not the type of behavior expected of a commissioned officer and her actions had seriously tarnished the reputation of Soldiers serving in the United States Army.  Additionally, she had failed to adhere to the Army Values of Duty, Selfless-Service, Honor, and Integrity.

15.  Her record contains a memorandum entitled AGDRB, issued by the Army Review Boards Agency, on 8 July 2013.  This memorandum informed the applicant that her officer elimination case resulted in a final recommendation for involuntary elimination with an honorable characterization of service.  However, since she had been issued a 20-year letter entitling her to a non-regular retirement, her case was converted by operation of law to a retirement in lieu of elimination.  She was also informed that her AMHRR and her Officer Record Brief (ORB) would be forwarded to the AGDRB.  She was further informed that the AGDRB would make a recommendation of the highest grade in which she served satisfactorily for non-regular retirement purposes to the Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)), who would make a final determination.  She was further informed that while she could not appear before the AGDRB, she could submit written materials within 30 days of her receipt of the memorandum.

	a.  Her record contains an undated acknowledgement indicating that she intended to submit written material for the AGDRB to consider.

	b.  Her record contains a memorandum for record indicating that she had not submitted her written materials within the allotted 30 days or requested an extension and that her case should be forwarded to the AGDRB for consideration.

16.  On 28 July 2013, the Acting DASA (RB)) approved the applicant's retirement in lieu of elimination.  The effective date of transfer would be 17 October 2013 and she would be placed in the Retired Reserve on 18 October 2013. 

17.  On 4 September 2013, the Acting DASA (RB) indicated that the AGDRB recommendations had been reviewed and directed that the applicant be placed on the Retired List in the rank of CPT.

18.  On 24 September 2013, the Department of the Army Ad Hoc Review Board reviewed the applicant’s officer elimination case as well as the recommendations of the PEB.  The Acting DASA (RB) approved the Ad Hoc Board's recommendation to involuntarily separate the applicant from the U.S. Army.  As she had a 20-year letter, this action by law converts to a retirement in lieu of elimination.  

19.  On 3 October 2013, HRC published orders transferring her to the Retired Reserve effective 17 October 2013. 

20.  She provided a 26-page document entitled "Article 138 Complaint, Report of Criminal Conduct, SF 95's – Damage Claims," dated 18 March 2014.  This document was not addressed to the ABCMR; however, it outlines the applicant's claims of criminal activity, misconduct, punishments, and monetary losses she claims to have sustained as a result of reprisal from her chain of command.

21.  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 evidence of record shows the applicant had two GOMORs for off duty alcohol-related incidents involving a motor vehicle and civilian law enforcement, a referred/relief for cause OER, and a general court-martial conviction.  However, the GOMORs, as stand-alone documents, clearly illustrate her 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 field grade officer upon whom the Secretary of the Army had reposed special trust and confidence in her patriotism, valor, fidelity, and professional excellence.  Here, the applicant violated that trust.

2.  She provides no evidence to show she was prevented from presenting matters to the AGDRB because she was incarcerated.

3.  She provides no evidence to show her DWIs were the result of being reprised against or that the misconduct for which she was convicted by court-martial was the result of being harassed or on unlawful orders.  Those were contentions that could have been raised/adjudicated in the court-martial process.

4.  Given the gravity of the offenses committed that resulted in the issuance of her two GOMORs and her conviction by court-martial, it would be inappropriate to retire her in the rank of MAJ.  Grade determinations are not considered punitive and the standard for rank/grade determinations is the "highest grade satisfactorily served.

5.  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 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)                                         AR20140005984





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ABCMR Record of Proceedings (cont)                                         AR20140005984



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