IN THE CASE OF:	

		BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140006037 


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 was placed on the Retired List in the rank of colonel (COL).

2.  The applicant states that when he submitted his request for retirement, his packet was sent before the Army Grade Determination Review Board (AGDRB).  Even though every General Officer (GO) and Senior Executive Service (SES) leader in his chain of command strongly recommended in writing that he be placed on the retired list as a COL, the AGDRB directed he be placed on the retired list as a lieutenant colonel (LTC).  

	a.  As a COL, he served as the Chief of Staff for the U.S. Army Special Forces (SF) Command (Airborne) and received an “Above Center of Mass (ACOM)” officer evaluation report (OER) and was ranked as the 5th of 72 COL in the U.S. Army Special Operations Command (Airborne) that Lieutenant General (LTG) JM senior rated.  He was subsequently selected for Brigade Level Command and served as the Garrison Commander for Fort Wainwright, Alaska.  In this capacity he received an ACOM OER from Major General (MG) RP and was rated as the number one COL he senior rated.  

	b.  The officers and SESs who rated and senior rated him as a COL all stated that he had the potential to serve as a future GO.  While that is based on their evaluation of his potential, he proved by demonstrated performance that he deserved the rank of COL.  He served satisfactorily in the rank of COL and his performance demonstrates he should be placed on the retired list as a COL.  He obtained the attached five letters of support from Mrs. DZ, Installation Management Command (IMCOM)-Pacific Regional Director; MG MXG, former Commander of U.S. Army Alaska; MG MS, current Commander of U.S. Army Alaska; MG ER, former Commander of U.S. Army Special Forces Command (Airborne); and LTG MF, current Commander, IMCOM for consideration.

3.  The applicant provides:

* two DA Forms 69-9 (OER) for the rating period 2 May 2009 through 
10 June 2011 and 11 June 2011 through 16 May 2012
* DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 11 June 2011
* five letters of support, dated 30 September 2013, 2 October 2013, 
17 October 2013, 28 January 2014, and one undated letter
* self-authored statement/letter of appeal, dated 12 March 2014

CONSIDERATION OF EVIDENCE:

1.  After having previous enlisted service, the applicant was appointed as a commissioned officer and entered active duty on 6 July 1988.  He served in a variety of stateside and overseas assignments and held the primary specialties 18A (SF) and 67B (Laboratory Sciences).  The highest rank he attained while serving on active duty was COL.

2.  He provided an OER for the rating period 2 May 2009 through 10 June 2011, which shows he was assigned to Fort Bragg, NC, in the rank of COL as the Chief of Staff of the U.S. Army SF Command (Airborne).  His rater at the time was Brigadier General (BG) ER rated him as "Outstanding Performance, Must Promote" and wrote a glowing account of his performance during the rating period.  His senior rater, LTG JM, rated him as "Best Qualified" and "ACOM" and stratified him number 5 of the 72 COLs he senior rated.

3.  He provided an AER, dated 11 June 2010, which shows he attended the College of Naval Warfare from 17 August 2009 through 11 June 2010, exceeded course standards, and graduated with distinction.  His demonstrated abilities in written/oral communication, leadership skills, contribution to group work, and research ability were all marked as superior. 

4.  He provided an OER for the rating period 11 June 2011 through 16 May 2012, which shows he was assigned to Fort Wainwright, AK, in the rank of COL, and his duty position was Garrison Commander-IMCOM.  His rater at the time was Mrs. DZ and she rated him as "Outstanding Performance, Must Promote."  His senior rater, MG RP, rated him as "Best Qualified" and "ACOM."

5.  His record contains a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 1 July 2013, which shows an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was conducted.  The investigation determined:

	a.  The applicant, a married man, used extremely poor judgment and engaged in a flirtatious (non-physical) relationship with Ms. Sxxxxx, the wife of an officer living physically apart from each other.  This relationship continued even after the applicant was informed that Ms. Sxxxxx's husband was very upset about the relationship.  Ms. Sxxxxx's husband, who was junior in rank to the applicant, was deployed to Afghanistan and discovered the relationship between the applicant and his wife, Ms. Sxxxxx, during the course of his deployment.  The Soldier made it clear to Ms. Sxxxxx and the applicant that he was unhappy about the relationship and wanted it to end.  The Soldier even went as far as contacting the applicant on the phone and by email to express his displeasure; however, the applicant did not cease contact with the Soldier's wife. This relationship between the applicant and Ms. Sxxxxx's resulted in the Soldier and his spouse divorcing.  The applicant did not cease contact with Ms. Sxxxxx until he was informed he was being investigated by the Inspector General (IG).  For the reasons listed above, the investigation officer (IO) found the applicant was engaged in an inappropriate relationship with Ms. Sxxxxx.

	b.  The applicant made a false official statement based on answers to questions he provided in his sworn statement.  First was regarding the reason for the conversation with Ms. Sxxxxx in her car at the gym on 18 April 2013.  Additionally, he was untruthful in his answers to the questions regarding whether he had ever watched a movie "with" Ms. Sxxxxx.  For the reasons listed above, the IO found the applicant gave untruthful and misleading responses in his sworn statement.  

	c.  The applicant used his government phone and computer for unofficial uses, specifically to engage in his inappropriate relationship during the duty day and at least on one occasion during an official meeting.  For the reasons listed above, the IO found that the applicant misused government communication resources.

	d.  The IO recommended the applicant be considered for nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice or at least a General Officer Memorandum of Reprimand (GOMOR) and a relief for cause OER.  The IO stated that the recommendation was based on the IO's belief that the applicant's actions demonstrated extremely poor judgment and his conduct was not in keeping with expectations of a senior leader and commander in the United States Army.  As a senior leader and commander, the applicant's conduct and integrity must be above reproach; however, that is not the case and the applicant's conduct should not be tolerated.  The board of officer's approved the IO's findings and recommendations.

6.  On 19 July 2013, he was reprimanded by MG MXG, Commander of Joint Base Elmendorf-Richardson, Alaska, for engaging in an inappropriate relationship with the wife of another Soldier.  The GOMOR stated: 

	a.  An Army Regulation 15-6 investigation determined the applicant engaged in numerous personal telephone and text message conversation with the spouse of another Soldier, many of which occurred while using government equipment during the official duty day.  The investigation also concluded the applicant was untruthful in responding to the IO's questions regarding specific details of the applicant's interaction with the other party (Ms. Sxxxxx).

	b.  MG MXG stated the applicant's lack of judgment as a senior officer was a great disappointment to him and all those who were depending on him for leadership.  As an officer, the applicant was charged with the responsibility of setting the example for Soldiers to emulate.  Clearly, the applicant's actions fell below the standards expected of an officer in the U.S. Army.  There was no excuse for the applicant's irresponsible and improper behavior, and further incidents of this nature may result in more serious actions being taken against the applicant.  MG MXG also stated he expected the applicant's future performance to reflect the degree of professionalism expected of every officer in the Army.

	c.  MG MXG directed the GOMOR be placed permanently in the applicant's Official Military Personnel File (OMPF).

7.  During October 2013, he received a referred/relief for cause OER for the rating period 17 May 2013 through 13 October 2013, for his duties as Garrison Commander, IMCOM, Fort Wainwright, Alaska.  His rater was listed as Mrs. DZ and his senior rater as MG MS.

	a.  In Part IVa (Performance Evaluation – Professionalism – Army Values), his rater checked the "No" blocks for the "Honor," "Integrity," and "Selfless-Service" indicating that during the rating period his personal character and disposition as a leader was not reflective of those Army values.

	b.  In Part Ivb (Leader Attributes/Skills/Actions) his rater checked the "No" blocks for the "Mental" and "Emotional" attributes; "Conceptual" skills; and the "Decision-Making" and "Building" leadership actions. 

	c.  In Part V (Performance and Potential Evaluation) his rater checked the block "Unsatisfactory Performance, Do Not Promote" and stated the applicant "engaged in inappropriate behavior as determined by the results of a completed investigation.  He was issued a [GOMOR] on 19 July 2013… [and he] was relieved from command on 13 October 2013."

	d.  In Part VII (Senior Rater) his senior rater checked the blocks "Do Not Promote," "Below Center of Mass," and stated the applicant "exercised poor judgment and as a result, [MG MS]… relieved him of command…[and did] not recommend him for promotion…"

	e.  The applicant's response to the referred OER was attached to and filed with his OER.  The applicant addressed his response to MG MH and stated he already had an approved retirement action submitted as a result of MG MS's direction and would be placed on the retirement list as an LTC despite having served as and performed at the highest levels as a COL for over 4 years.  As a result of the Army Regulation 15-6 investigation, he received a GOMOR filed in his OMPF for an "inappropriate relationship."  The grade reduction alone would cost him $348,996.00 by the age of 76 and $416,998.00 by the age of 82.

		(1)  While he understands the magnitude of the poor judgment he exhibited in this one-time incident and he continues to feel the deepest remorse and shame for his actions, he maintained that this was an extreme punishment for what amounted to flirtatious texting with a friend.  Not only was his career over, but he now had to suffer the shame and humiliation of a relief for cause OER and being relieved of his command with literally 2 weeks left in the Army.  

		(2)  He also stated he did not agree with the characterization of his personal character as marked on his OER, which stated he had no honor or integrity.  He stated that having a non-sexual relationship and exchanging texts deemed flirtatious was not immoral and that the UCMJ did not prohibit friendships between members of the opposite sex.  He stated he did not lie or answer any of the questions in his statement untruthfully.  To say he has no honor or integrity was absolutely unjustified and hurt him more than all the other actions taken against him.  Furthermore, these statements were an absolute slap in the face and discredited all he has sacrificed and achieved in his military career.  While he takes full responsibility for his actions, the actions taken against him will forever change his feelings for the Army as an institution and the Army's senior leadership.  

8.  On 15 October 2013, the AGDRB reviewed his voluntary retirement and the request for a grade determination and directed that if the retirement was approved, the applicant would be placed on the retired list in the rank of LTC.
9.  His record indicates he was reduced in grade to LTC on 25 November 2013.

10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired due to sufficient service for retirement, in the rank of LTC on 30 November 2013 and subsequently placed on retired list in that same grade the following day.

11.  He provided/obtained five letters of support dated 30 September 2013, 2 October 2013, 17 October 2013, 28 January 2014, and one which was undated.  These letters were written on his behalf by Mrs. DZ, IMCOM-Pacific Regional Director; MG MXG, former Commander of U.S. Army Alaska; MG MS, current Commander of U.S. Army Alaska; MG ER, former Commander of U.S. Army Special Forces Command (Airborne); and LTG MF, current Commander, IMCOM.  All of these letters outline the applicant's contributions to the U.S. Army and his achievements.  Furthermore, they all state the authors feels he should be retired in the rank of COL.

12.  He submitted a self-authored statement/letter of appeal, dated 12 March 2014, wherein he stated that the entirety of his career, his contributions to the Nation, and the sacrifices he and his family made for this Nation should be taken into account and he should be placed on the retired list at the rank he attained through his life's work, that of COL  

	a.  He remains deeply embarrassed and regrets his poor judgment in the matter that resulted in a GOMOR and the AGDRB's decision to place him on the retired list as a LTC.  While he takes full responsibility for his actions, he would like to point out that he had served the Army for over 28 years, 25 as an officer and for over 3 years as a COL, before this single lapse of judgment occurred.  Further, it is important to note that in the incident that resulted in this action, he was judged to have had an inappropriate personal relationship, not of engaging in sexual misconduct.  He never had a physical or sexual relationship; it was a personal friendship that at times drifted into flirtatious texting, but there was no physical relationship.  The Army is focused on dealing harshly with sexual misconduct; however, this is not a case of sexual misconduct and should not be dealt with in the same manner.  

	b.  He feels it is extremely important to note that none of the GOs or SESs in his chain of command, (Mrs. DZ, IMCOM-Pacific Regional Director; MG MXG, former Commander of U.S. Army Alaska; MG MHS, current Commander of U.S. Army Alaska; LTG MF, current Commander, IMCOM) who were responsible for determining the disposition of this case felt it appropriate or supported placing him on the retired list as an LTC.  This includes MG MXG, the individual who was responsible for taking disciplinary action in his case.  To a person they all strongly support his retirement as a COL and felt that the official filing of the GOMOR was the only appropriate action to be taken and that no further action was warranted.  

	c.  While he realizes the grade reduction action taken by the AGDRB is not considered punishment, the reality and fact of the matter is that it is the harshest action that could have been taken in this situation and will have incredibly long term detrimental effects on he and his family.  He enlisted in the Army in 1985 and rose to the rank of COL in 20 years of active service, one of his proudest accomplishments in his professional life.  During his career he served as an SF officer (Green Beret) for over 20 years.  During this time, he conducted three SF combat deployments to Afghanistan and conducted numerous classified missions in various other countries.  He has literally risked his life countless times and has killed for his country.  He has experienced and done things that his country asked him to do that will affect him and his family for the rest of their lives.  While that was a part of his duty that he willingly and gladly executed, there was a collateral impact on his family who have suffered through and experienced extreme hardships and sacrifice, which was the unavoidable cost of being an Army family.  Now, even though the GO who was responsible for taking action in his case did not support or believe it appropriate, he and his family have been further impacted by his being placed on the retirement list as a LTC. 

	d.  He believes, as do the GOs and SES who have written letters of support for him, that his service and performance as a COL has been honorable and that he should be placed on the retired list as a COL.  None of the senior Army leaders who wrote letters of support in his defense support the actions or determination of the AGDRB.  He also asks that his service as a COL and in particular his accomplishments as the Chief of Staff of the U.S. Army SF Command (Airborne) and as a Garrison Commander be closely reviewed and favorably considered.

13.  Army Regulation 15-80 (AGDRB 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 LTC vice COL despite the written recommendations from his chain of command that he be placed on the Retired List as a COL and without fully considering the merits of his career, his accomplishments as a Soldier, and the sacrifices he and his family made for their Nation.  

2.  An Army Regulation 15-6 investigation determined/found he was engaged in an inappropriate relationship, that he gave untruthful and misleading responses in his sworn statement, and that he misused government communication resources.  As a result of the Army Regulation 15-6 investigation he received a GOMOR, a referred/relief for cause OER, and he was relieved from command.

3.  He argues, in effect, that his punishment was too harsh, considering the fact that his "inappropriate relationship" was a friendship, not a sexual or intimate relationship and at most, consisted of what others deemed flirtatious "text messages."

4.  The applicant has overlooked the fact that he was not punished only for having an inappropriate relationship but also for misusing government communication equipment/resources and giving untruthful or misleading official statements.  These infractions alone warranted the actions taken against him by his chain of command.  However, the inappropriate relationship does merit further exploration, because it appears the applicant has misunderstood exactly why his relationship was deemed to be inappropriate in the first place.

	a.  He was engaged in what can be deemed as a platonic, yet flirtatious relationship, with the wife of an officer he outranked.  This junior officer and his wife were geographically separated because the Soldier was deployed to Afghanistan, a combat zone.  Though the applicant and this officer's wife may have felt the relationship was innocent, it became an inappropriate relationship when the junior officer requested that the relationship cease, and the applicant being aware of the junior officer's wishes, chose not to end the relationship.   

	b.  The applicant was very aware that the junior officer discovered the applicant and his wife were having an inappropriate relationship while he was in a combat zone and that he was extremely unhappy about this relationship.  The junior officer even contacted the applicant via email and phone to express his displeasure.  Ultimately, as a result of this relationship and the applicant's unwillingness to cease contact, the junior officer and his wife ended their marital union in divorce.  

	c.  While this chain of events may not have impacted military operations at the applicant's location they undoubtedly had some impact on the Army mission and that of the junior officer serving in Afghanistan because instead of focusing all of his attention on his military mission, this Soldier was worried about what was going on at home between the applicant and his wife.  Furthermore, this Soldier's lack of focus and worry could have caused the loss of his life or the lives of other Soldiers.

	d.  Eventually someone, most likely the junior officer, contacted the IG and an investigation was initiated.  The applicant only ended this relationship after he was informed of the IG's involvement, thereby showing he was more interested in his personal well-being and reputation than that of the Army mission in Afghanistan or the well being of a junior officer.

5.  The quality of a Soldier's service in the Army is affected by conduct that is of a nature as to bring discredit upon 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.  Here, the applicant violated that trust.

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, referred/relief for cause OER, and removal from command, 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 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)                                         AR20140006037



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ABCMR Record of Proceedings (cont)                                         AR20140006037



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