BOARD DATE:	  2 December 2014

		DOCKET NUMBER:  AR20140006076 


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)/pay grade O-6 (the highest grade he held) and back pay of all retired pay as a result of this correction.

2.  The applicant states that the basis for his request is "compassionate circumstances" as a factor of consideration in the retired grade determination.

   a.  During his deployment to Iraq in support of Operation Iraqi Freedom (OIF), an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was conducted and a Relief for Cause (RFC) Officer Evaluation Report (OER) was subsequently rendered.

    	(1)  In August and September 2010, he and his wife (who was living in the continental United States (CONUS) at the time) were under tremendous strain that was exacerbated by the fatal illnesses of both of their mothers.  He returned to CONUS on emergency leave to provide comfort and care to his mother in Maryland while his wife was with her mother in Oklahoma.  Both of their mothers died in late December 2010.  He went back to Iraq on 1 January 2011 and then returned to CONUS six weeks later for the funeral of his mother-in-law, which was delayed due to matters related to her final wishes.  The stress during this period, coupled with his tremendous grief, contributed to him acting completely out of character in what was otherwise a stellar and exemplary Army career.


    	(2)  He adds the Army Grade Determination Review Board (AGDRB) was unaware of any of this at the time it rendered its finding.

   b.  In accordance with AR 15-80 (AGDRB and Grade Determinations), paragraph 2-4, "Generally, determination will be based on the Soldier's overall service in the grade in question."  Prior to the RFC OER, he contributed over five years of outstanding service in the grade of COL/O-6 and the OERs he provides offer evidence of this service.  In addition, one of the OERs documents a previous deployment with (then) Lieutenant General (LTG) Raymond T. O------ as senior rater, and three of these excellent OERs covered his performance as brigade commander.  In addition, the seven-month OER rendered by (then) LTG Robert W. C--- (just weeks before the two month RFC OER) identified him as one of the top two of five separate brigade commanders in the Iraqi theater.

   c.  During the five-year period of these OERs he was awarded the Bronze Star Medal, the Defense Meritorious Service Medal, and the Meritorious Service Medal (5th Award).  He adds that the relatively very short and uncharacteristic period of service under review (seven weeks from the beginning of the rating period on 9 February 2011 to the date of suspension from command on
31 March 2011) should be balanced with his many years of excellent service in the grade of COL/O-6.

   d.  The grade determination of lieutenant colonel (LTC)/pay grade O-5 by the AGDRB, in practical terms, was a two grade reduction because he had been confirmed by the Senate for promotion to the grade of brigadier general (BG)/pay grade O-7.  He adds that a specific BG (O-7) position (i.e., Director of Army Operations, Office of the Deputy Chief of Staff (DCS), G-3) had been identified for him to fill in mid-July 2011 only weeks after his redeployment to CONUS.  He notes the letter he provides from Major General (MG) Timothy K----- specifically refers to his designation to fill that general officer (GO) billet.  He understands that he was not actually promoted to GO prior to retirement; however, the grade determination of LTC/O-5 effectively amounts to a two grade loss in rank.

   e.  If proper procedure had been adhered to from the beginning of the investigation, a more balanced investigation and a less punitive outcome may well have resulted.  As a promotable COL (COL(P)) who had been confirmed by the Senate for promotion to BG, any investigation conducted regarding his command conduct should have been done by the Department of the Army Inspector General (DAIG), after approval of the Vice Chief of Staff of the Army (VCSA) or the IG; not by United States Forces–Iraq (USF-I) using his rater as the investigating officer (IO).  Since the AR 15-6 findings formed the basis for the adverse personnel actions that led to the AGDRB finding for reduction of retired grade, he was not afforded procedural due process protections.
   f.  He concludes that he now realizes how personal family issues added significantly to the stress of command in a combat theater.  Regrettably, his leadership suffered for that given period of time and it was not to standard.  In reflecting on his 31 years of loyal and devoted service to his country, and the highly commendable duty performance that characterized the overwhelming time in grade (TIG) in which he served as a COL (O-6), he requests restoration of that grade for retirement.

3.  The applicant provides copies of 16 documents in support of his application that he identifies in his list of enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Army National Guard (ARNG) of the United States (ARNGUS) and the Maryland Army National Guard (MDARNG) from 26 February 1980 through 29 May 1982.

2.  A review of his Official Military Personnel File (OMPF) shows he was appointed as Reserve commissioned officer, in the rank of second lieutenant, on 30 May 1982.  He continued to serve in the ARNGUS and MDARNG, and transferred to the Nebraska ARNG (NEARNG) on 8 May 2008.  This review also shows, in pertinent part, he –

* served overseas in –

* Iraq –

* 5 February 2007 through 4 August 2007
* 16 August 2010 through 3 May 2011

* was promoted to –

* LTC (O-5) on 17 November 2000
* COL (O-6) effective and with a date of rank of 21 October 2005

* assumed command of the 67th Battlefield Surveillance Brigade (BfSB), Lincoln, NE, on 1 April 2009 and –

* in March 2010, the unit received orders to mobilize
* in July 2010, the headquarters (HQ) element and subordinate units reported to the mobilization station
* in August 2010, the brigade deployed to Iraq

   a.  A General Officer Memorandum of Reprimand (GOMOR), dated 15 April 2011, that shows LTG Frank G. H------, Deputy Commanding General (DCG) Operations, USF-I, Baghdad, Iraq, reprimanded him for failing to treat the members of his command with dignity and respect.  Attached to the GOMOR are the applicant's acknowledgement and the approved AR 15-6 Investigation.  (The GOMOR and related documents (totaling 541 pages) are filed in the performance folder of his OMPF.)  A further review shows the following pertinent documents:

    	(1)  HQ, USF-I, Baghdad, Iraq, memorandum, dated 21 March 2011, subject:  67th BfSB Command Climate, signed by General (GEN) Lloyd J. A----- III, Commander, that shows, "In February 2011, the USF-I Joint Inspector General Office (JIGO) received several requests for assistance regarding the command climate within the 67th BfSB.  As a result, the JIGO conducted a preliminary analysis to assess the climate within the unit.  The results of this inquiry revealed some evidence and perceptions on the part of Soldiers that an unhealthy command climate exists."  Based on the preliminary assessment, the commander directed a Commander's Inquiry (CI) into allegations of unhealthy command climate."
   
    	(2)  HQ USF-I, Baghdad, Iraq, 37-page memorandum, dated 11 April 2011, subject:  Report of Investigation (ROI) – Command Climate within the 
67th BfSG (with enclosures).  The ROI shows that 74 members of the command provided written statements attesting to their perceptions of the command climate and the source of the climate (the IO personally interviewed 65 members of the command).  The responses were overwhelmingly negative (58 of 74) and focused on the applicant as the cause of the negative environment; 12 were somewhat neutral; and three (besides the response of the applicant) rated the climate as positive, but they had significant caveats.

    	(3)  A 99-page verbatim transcript of the IO's (BG Michael X. G------) 
AR 15-6 Investigation interview of the applicant (with the applicant's signed 
DA Form 3881 (Rights Waiver Procedure/Warning Certificate) and Affidavit of Statement, dated 5 April 2011.

    		(a)  A review of the transcript revealed that in response to a question regarding a noncommissioned officer (NCO) making travel arrangements for his parents, the applicant answered, "I don't think so, sir, because the only time my parents – my mother is deceased now.  The only time they came was for the change of command ceremony in April of '09."

    		(b)  A further review revealed there are no comments or statements by the applicant indicating that personal/family issues may have added to the stress of command in a combat theater or impacted his personal behavior/conduct.
    		(c)  He was given the opportunity to make any comments or clarifications he wished to add, but declined to do so.

    	(4)  USF-I, Baghdad, Iraq, memorandum, dated 15 April 2011, subject:  Notification of Intent to Relieve from Command for Cause, that shows the DCG Operations, USF-I, notified the applicant that he was relieving him for cause.

    	(5)  His rebuttal to Notice of RFC and GOMOR, dated 20 April 2011; and

    	(6)  USF-I Baghdad, Iraq, memorandum, dated 13 April 2011, subject:  Action – AR 15-6 Investigation of the Command Climate Fostered by (Applicant) within the 67th BfSB, that shows MG William B. G------ III, Chief of Staff, USF–I, approved the findings of the investigation and indicated the chain of command had the discretion to address the IO's findings and recommendations as it determined appropriate.

   b.  A DA Form 67-9, RFC OER, covering the period 9 February 2011 through 23 April 2011, that shows he was relieved as Brigade Commander, 67th BfSB, USF-I, Contingency Operating Base (COB) Adder (Iraq).  

    	(1)  The rater (BG Michael X. G------, DCS) evaluated his performance and potential as "Unsatisfactory Performance, Do Not Promote."  He explained, "[The applicant] failed in his ability to command, lost my trust, confidence and was subsequently relieved from command.  He created an environment of anxiety and degradation resulting in his Soldiers living in abject fear.  He failed to foster a healthy command climate and treat his Soldiers with dignity, respect, fairness, and consistency.  [The applicant] created a negative command climate through emotional, verbal, and physical abuse to the Soldiers under his command."  He added, "Do not promote, [the applicant] does not possess leader attributes and values to serve at higher levels."

    	(2)  The senior rater (LTG Frank G. H------, DCG Operations) evaluated his promotion potential to the next higher grade as "Other."  He explained, "I have lost all faith and trust in (the applicant's) leadership abilities and have relieved him of command.  A [AR] 15-6 investigation revealed he failed to lead his unit with dignity, respect, fairness, and consistency.  He emotionally, verbally, and physically abused the Soldiers under his command resulting in a toxic and corrosive command climate.  He did not execute his command responsibilities in accordance with Army Command Policy -- or the Army Values."

3.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty on 8 July 2010 in accordance with Title 10, U.S. Code, section 12302, honorably released from active duty on 5 May 2011, and transferred to the NEARNG.  He completed 9 months and 28 days of net active service during this period.

4.  A DD Form 214 shows he was recalled to active duty on 6 May 2011, honorably retired on 31 July 2011, and transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  He completed 2 months and 
25 days of net active duty service during this period; 26 years, 7 months, and    11 days of total prior active service; and 4 years, 6 months, and 29 days of total prior inactive service.

   a.  It also shows in –

* item 18 (Remarks), in pertinent part, "Retired List Grade COL"

   b.  The applicant and an authorized official digitally signed the DD Form 214 on 17 June 2011.

5.  A DD Form 215 (Correction to DD Form 214), issued on 20 July 2011, shows item 18 was corrected to add:  "Retired grade is to be determined by the Army Grade Determination Review Board."

6.  Office of the Assistant Secretary, Manpower and Reserve Affairs (ASA (M&RA)), Arlington, VA, memorandum, dated 5 October 2011, subject:  Officer Grade Determination Case, signed by the Deputy Assistant Secretary of the Army (Review Boards), shows the AGDRB reviewed the request for a grade determination on the applicant and determined, if the retirement is approved, he be placed on the retired list in the grade of O-5 (LTC).

7.  A DD Form 215, issued on 11 October 2011, shows item 18 was corrected to further add:  "Army Grade Determination Review Board directs the Soldier will be placed on the Retired List in the grade of O-5 (Lieutenant Colonel)."

8.  National Guard Bureau (NGB), Washington, DC, Special Orders Number 255 AR, dated 19 October 2011, announced the change of his Federal recognition status to show Federal recognition was withdrawn and he was transferred to the USAR Control Group (Retired), in the grade of rank of LTC, effective 31 July 2011.

9.  In support of his application he provides, in pertinent part, the following documents:

   a.  two online obituaries that show the applicant's mother died on                  28 December 2010 and his mother-in-law died on 30 December 2010;
   b.  seven DA Forms 67-9 (OERs) that document his performance and potential while serving in the grade of COL/O-6 as –

* Chief, Training Division, Joint Force Headquarters (JFHQ), MDARNG, from 12 October 2005 through 31 January 2007 (two OERs)
* Chief, Reserve Component (RC) Division, HQ, Multi-National Corps–Iraq (MNC-I), from 5 February 2007 through 5 August 2007
* Deputy Director, NGB J-3, JFHQ Element, MDARNG, from 29 August 2007 through 15 June 2008
* Commander, 67th BfSB, NEARNG, from 16 June 2008 through 7 July 2010 (two OERs)
* Commander, 67th BfSB, COB Adder, Iraq, from 8 July 2010 through 
8 February 2011

    	(1)  All of the raters evaluated his performance and potential as "Outstanding Performance, Must Promote."

    	(2)  All of the senior raters evaluated his promotion potential to the next higher grade as "Best Qualified."

   c.  Three award documents that show the applicant was awarded the –

* Bronze Star Medal for exceptionally meritorious service as Chief, RC Division, MNF-I, during OIF, from 5 February 2007 to 1 August 2007
* Defense Meritorious Service Medal for exceptionally meritorious service as Deputy Director, Domestic Operations, NGB Joint Staff, from August 2007 to June 2008
* Meritorious Service Medal for exceptionally meritorious service as Chief, Training Division, NGB, from 15 July 2004 to 28 August 2007

   d.  Congressional Record, Volume 156, Number 118, that announced executive nominations confirmed by the Senate, on 5 August 2010, and show, in pertinent part, the applicant was nominated as an ARNGUS officer for appointment in the Reserve of the Army to the grade of BG (O-7).

   e.  Letter written by MG Timothy J. K-----, Deputy Director, ARNG, dated
18 April 2011, who worked closely with the applicant for the past 10 years.  He attested to the applicant's competence and professionalism, his ability to make difficult decisions as brigade commander, and asserted that the 67th BfSB was one of the most prepared and best led units.  He added that the applicant had been confirmed by the Senate for promotion to BG and selected for assignment as Deputy Director, Army Operations Center, Army Operations Directorate.  (He provided the letter for consideration prior to the RFC OER and GOMOR.)
10.  In the processing of this case, an advisory opinion was requested and obtained from the Chief, Personnel Policy Division, NGB, Arlington, VA.  (The NGB in its processing solicited an advisory opinion from the NEARNG). 

   a.  The Adjutant General (AG), NEARNG, JFHQ, Lincoln, NE, upon review of the applicant's request, along with his military service records, determined that administrative relief is not warranted.

    	(1)  As the separation authority, the NEARNG requested a determination by the AGDRB of the highest grade satisfactorily served by the applicant.

    	(2)  As AG, the advisory official found that there was sufficient unfavorable information establishing that the applicant's service in the grade of COL/O-6 was unsatisfactory.  In addition, the applicant did not successfully complete the only key assignment for an RC infantry COL (brigade/regimental command).  He noted that all supporting documents were available to the AGDRB and are located in the applicant's OMPF.

    		(a)  The applicant's request that is based upon compassion circumstances, while deserving of sympathy, does not warrant relief.  The investigation shows that his misconduct occurred both before and after the beginning of the applicant's unfortunate family circumstances that began in August 2010.  The investigation showed an egregious pattern of behavior that included assault, theft, discrimination on the bases of race, sex and religion, failure to adhere to Army values, and ethics violations.  He added that the applicant's family situation deserves sympathy; however, his unconscionable pattern of misconduct does not warrant relief for compassionate circumstances.

    		(b)  The OERs he provides in support of his appeal were considered.  AR 15-6, paragraph 2-4(e), permits the consideration of an officer's OERs, but boards must also consider whether the reporting officials were aware of the misconduct.  In this instance, the investigation was not completed until
11 April 2011, which was after the "Thru Date" (8 February 2011) of the most recent OER submitted by the applicant.  Therefore, it is reasonable to assume the reporting official on the most recent OER (as well the other reporting officials) was not aware of his misconduct and, therefore, could not address his misconduct in the evaluation.

    		(c)  He notes the applicant argues that the grade determination by the AGDRB effectively resulted in a two-grade reduction because he held a certificate of eligibility (COE) for promotion to BG.  By law, officers retire at the highest rank successfully held and for which the officer has met the statutory TIG.  The applicant never served as a BG and, as a result, has not met the statutory TIG to retire as a BG.  He adds that it would be illegal and a violation of regulation to consider the applicant a BG for the purpose of his grade determination and for his request for restoration.

    		(d)  He notes the applicant also argues that his COE for BG entitled him to be considered a COL(P), requiring the investigation be conducted under the IG regulation.  COL Brett A-------, Executive Officer, 67th BfSB, during the deployment and the officer appointed to replace the applicant after he was relieved, has advised that the original complaint against the applicant was filed with the IG.  An IG investigation and report were completed and forwarded to General (GEN) Lloyd A----- III.  Based on the IG investigation and the report, 
BG Michael X. G------ was directed to conduct the informal AR 15-6 Investigation. The NEARNG was not privy to the IG investigation and report, and does not have a copy of the report.  Whether the applicant was entitled to be treated as a 
COL(P) or not, his case was processed through IG channels.

    	(3)  The advisory official provided copies of documents in support of the advisory opinion that he identifies in his list of four enclosures and, in pertinent part, are summarized, as follows:

    		(a)  State of Nebraska, Military Department, Lincoln, NE, letter, dated 12 May 2011, that shows MG Judd H. L----, AG, NEARNG, requested a determination of the highest grade satisfactorily served by the applicant;
   
    		(b)  ASA (M&RA), Arlington, VA, memorandum, dated 5 October 2011, subject:  Officer Grade Determination Case, that shows the AGDRB directed the applicant be placed on the retired list in the grade of LTC (O-5);

    		(c)  State of Nebraska, Military Department, Lincoln, NE, letter, dated 11 October 2011, that shows MG Judd H. L----, AG, NEARNG, notified the applicant that the AGDRB directed the applicant be placed on the retired list in the grade of LTC (O-5); and

    		(d)  HQ, USF-I, Baghdad, Iraq, memorandum, dated 21 March 2011, subject:  67th BfSB Command Climate – (Applicant), signed by GEN Lloyd J. 
A----- III, Commander, USF-I.  (This document was previously discussed in this Record of Proceedings and is filed in the applicant's OMPF.)

   b.  The NGB advisory official recommends the applicant's request be disapproved.  The advisory official's key points of emphasis include –

* the NEARNG requested a determination by the AGDRB of the highest grade satisfactorily served by the applicant
* the AGDRB determined the applicant's service in the grade of COL was unsatisfactory based on the fact that the applicant was relieved from brigade command
* the applicant received selection of eligibility for promotion to BG (O-7) on 5 August 2010; however, he did not serve as a BG and could not meet the statutory TIG requirement of three years

11.  On 24 September 2014, the applicant provided his response to the advisory opinion.

   a.  The applicant stated that, as he read the advisory opinion, it became apparent that a full and fair review calls for additional input from him.  He now provides letters from senior officers, NCOs, and Department of the Army Civilians (DACs) that he has been honored to serve with and who provide a first-hand opinion about his character, performance, and most importantly, his treatment of all Soldiers with dignity and respect.

   b.  He states that all the individuals attest to the type of officer and individual that he was, specifically in terms of their duty with him during his service as a COL (O-6).  He adds that he hopes these character references show that his final deployment to Iraq was completely out of character.
   
   c.  The applicant points out the letter from GEN Lloyd A----- III, dated 
21 March 2011, which he saw for the very first time when it was forwarded to him with the advisory opinion, supports the point that he makes regarding the fact that his case was not properly referred to the DAIG, but instead for an investigation by the local command.  Despite the advisory official's assertion that the USF-I JIGO referral to GEN A----- shows that due process and the DAIG referral process for senior leader investigations was followed, it actually shows that GEN A----- was provided bad staff advice from the JIGO.  Since he (the applicant) was a COL(P) at the time, the proper procedure was to refer the allegations to the DAIG.  He notes that the RFC OER shows the command in Iraq was well aware that he was a COL(P).  Since the retirement grade determination was based on the RFC OER, and the RFC OER was based on the AR 15-6, which should have been a DAIG investigation, this error is inextricably linked to the grade determination.

   d.  He notes that the advisory opinion centers on two points.

    	(1)  The first being that the advisory official refers to Department of the Army Pamphlet (DA Pam) 600-3 (Commissioned Officer Professional Development and Career Management), paragraph 9-8a(6), "that the 'only key development [sic] assignment' for RC infantry COL is brigade command."  However, it is only a partial quote.  The paragraph goes on to state, "Developmental assignments include Active Guard/Reserve (AGR) program participation and various senior duty positions at the division, JFHQ, Regional Support Command (RSC), General Officer Command (GOCOM), Major U.S. Army Reserve Command (MUSARC) levels, and Headquarters, Department of the Army (HQDA) and joint staff assignments."  He states, in fact, he served in many of these positions including the ARNG Directorate of NGB (i.e., Army Staff), NGB Joint Staff, and JFHQ in the NEARNG as G-3 (dual-hatted while early on in brigade command).  He adds the OERs he previously provided confirm these key assignments and his excellent duty performance.

    	(2)  The second point being that he was not eligible to retire as a BG.  He states he never asserted he was eligible to retire as a BG; he has consistently requested restoration to COL (O-6).  However, the point he made in his appeal was that reduction to LTC (O-5) was essentially a two-grade reduction because he had been confirmed by the Senate for BG and a specific BG (O-7) position had been identified for him with senior leader intent to place him in such a position in summer 2011.

   e.  The applicant states he is deeply remorseful for his conduct and it pains him that he did not see at the time how his actions and his all-consuming focus on mission were negatively impacting Soldiers and the unit.  He never intended to treat anyone disrespectfully.  His conduct was not reflective of his long career and focus on serving all Soldiers honorably and treating them fairly.  During his 31 years of service, he never had any accusations or allegations of discrimination.

   f.  He notes the NEARNG memorandum is a less than compassionate response with regard to the deaths of his mother and mother-in-law that occurred two days apart in late December 2010.  He adds their long illnesses stretched back for the majority of the entire two years of his command tenure.  This necessitated repeated geographic separations between his wife and him and their children due to travel between Nebraska, Oklahoma, and Maryland.  He adds that he is not offering this as an excuse for his conduct, but to provide some background and context to a stressful family situation that was occurring during his deployment to Iraq.

   g.  The applicant concludes that, as a son of a still living World War II veteran, he was taught at an early age that military service to our country is both a distinct honor and a great responsibility.  He has pride in his fellow Soldiers and what they accomplished together, and pride in forming lasting relationships of trust.  He expresses regret for having let many of them down and offers appreciation of the Board's consideration of this serious and life-impacting matter and respectfully requests to retire as a COL (O-6).

   h.  The applicant provides copies of documents in support of his response to the advisory opinion that he identifies in his list of 23 enclosures and include, in pertinent part, 20 character reference letters from:

    	(1)  LTG (Retired (R)) H. Steven B---, dated 22 September 2014, who provides his input and observations, based on over 40 years of service (culminating as Deputy Commander, U.S. Northern Command), in the matter of the retirement grade determination of the applicant.  He states he first served with the applicant in 1985 and as recently as 2008 in his position as Chief, NGB.  He selected the applicant from amongst over 30 COLs to immediately deploy to Iraq as Chief RC Division, MNC-I, after the incumbent was killed in action.  (He describes the applicant's performance that is reflected in the OER for that period.)  Subsequent to the applicant's return, he selected him as Deputy Director, Domestic Operations/J-3.  (He describes the applicant's performance that is reflected in the OER for that period.)  He adds the applicant was then selected for brigade command and confirmed by the U.S. Senate for eligibility for the rank of BG.  He has observed hundreds of leaders, in countless situations where their conduct was less than expected, and he has learned that determining the proportionate response to a given conduct is not easy.  In the applicant's case, weighing the severity of the offense against the entire period of the particular service, and against all of the other cases and offenses he is familiar with, he strongly recommends the initial retirement grade of COL (O-6) be restored.

    	(2)  LTC Julie A. T-----, dated 17 September 2014, who served under the applicant on the NGB-J3 staff in 2006.  She states that he is a trusted and caring leader and one of the most influential leaders of her career.  She describes serving under several toxic leaders.  The applicant does not reflect such behavior or characteristics.  She concludes with a strong affirmation of her trust in the applicant.

    	(3)  Command Sergeant Major (CSM) (R) John J. L------, Jr., dated 
20 September 2014, who states he has 40 years of military service beginning with his service in Vietnam.  He first served with the applicant in 1996 and their duties required them to travel together on two temporary duty missions.  He notes the applicant treated all those he came in contact with, with dignity and respect, and he upheld the Army Values.  Later, in 2005-2006, they both served at HQ, NGB, and the applicant cared for his Soldiers both professionally and personally.  He strongly recommends approval of the applicant's request.

   	(4)  CSM (R) William V. R---, dated 24 September 2014, who served with the applicant in Iraq from February to August 2007.  Together they dealt with command-related issues between the ARNG and Active Army and the applicant was extremely successful in resolving them.  The applicant was one of the finest leaders he has had the privilege to serve under.

    	(5)  LTC John A. R-----, Sr., dated 8 September 2014, who served under the applicant as an action officer in the Training Division, NGB in 2006-2007.  The applicant provided him guidance and mentorship, encouraged him to be confident, to continue to develop professionally and personally, to find ways to improve the organization, and to learn the fiscal law, planning, programming, budgeting, and execution system.  He concludes by stating the applicant provided exemplary leadership and mentorship.

    	(6)  COL Chester W. G----, dated 5 September 2014, who served under the applicant as executive officer in the Training Division, NGB, from June 2006 to January 2007.  He states the applicant had the biggest impact on his development as a leader.  He ensured that Soldiers put in their best effort and he directly confronted the quality of their work if he felt they had not provided their best effort.  He pushed his subordinates to improve and do better.  His actions and comments were always based on the individual Soldier's performance and potential; race or gender was never a consideration.  He concludes the applicant exemplified what a leader should be and do.
   
    	(7)  First Lieutenant Simone R. A---- - M-------, dated 22 September 2014, who served under the applicant while on Active Duty Operational Support.  She was impressed with his professionalism, leadership, and caring approach, which inspired her to become a commissioned officer.  She describes meetings she and her unit had with the applicant at both HQ, NGB and in Iraq in which he took the time to offer advice, words of encouragement, and prayers.  She strongly recommends he maintain the rank of COL (O-6) in retirement.

    	(8)  Mr. Rohan E----, DAC (R), Senior Program Analyst, HQDA, Munitions Division, G-8, dated 5 September 2014, who has known the applicant since 1996 and served under him as an enlisted Soldier in the Training Division, NGB.  He states the applicant was always positive and professional, and he has the highest regard for him as an Army officer.  He adds he is a man of honor, integrity, and devotion who set an impeccable example for his subordinates to follow.  He recommends he maintain the rank of COL (O-6) in retirement.

   	(9)  COL (R) Michael J. S------, dated 14 September 2014, who served under the applicant in the J-3, NGB, from July 2007 to June 2008.  He states the applicant demonstrated effective communication skills, and a high degree of loyalty, duty, and personal courage in carrying out his duties.  The applicant was candid, persistent, and exceptionally committed to the mission.  The applicant continually provided selfless service and adherence to the Army Values.  He urges the Board to allow him to retire at the rank of COL (O-6).

   	(10)  Sergeant Major (SGM) Manuel A------, dated 19 September 2014, who first met the applicant in 2006 and served under him as the Special Forces schools manager in the Training Division, NGB.  He states the applicant is a high caliber officer who led with a direct and effective style.  He always considered advice the SGM provided as it related to the management of Special Forces courses and the organization's enlisted Soldiers.  The applicant always demonstrated that he lived the Army Values.  He requests the Board reinstate the applicant on the retired list in the rank of COL (O-6).

	 	(11)  Ms. Mary T. P-----, Budget Analyst, DAC, dated 15 September 2014, who has known the applicant since 2007 and served under him in the Training Division, NGB.  She states the applicant was always clear on his leadership directives and he provided fair decisions.  She adds that there was never a doubt that the applicant respected the dignity of Soldiers.  She requests the Board reinstate the applicant on the retired list in the rank of COL (O-6).

    	(12)  COL Thomas F. -----, Jr., dated 28 August 2014, who served under the applicant in the Training Division, NGB, from September 2005 through August 2007.  He states the applicant has always been a leader who expected the best out of his people and did not settle for anything less, and always took care of his people.  He attests to the applicant's integrity and states that he was a strong advocate for Soldiers regardless of gender, race, ethnicity, or religion.  The applicant's performance and leadership as a COL from 2005 through May 2010 was exemplary and without question met and exceeded what was expected of a professional officer and COL in the U. S. Army.  Any behavior by the applicant contrary than what he describes in his letter is clearly out of character for the applicant.
   
    	(13)  BG (R) Ernie A-----, dated 23 September 2014, who has known the applicant for many years.  He states that he recommended the applicant as a "backfill" for him on four occasions and the applicant actually succeeded him on three occasions.  He recommended the applicant as his "backfill" for the Deputy Director of Operations, G3/5/7 (a BG/O-7 position) and MG Joe A-----, the Director of Operations agreed.  The applicant had already been selected for promotion to BG, all the necessary concurrences were obtained, and he only needed orders reassigning him to the position to be promoted.  The applicant's reassignment and promotion were blocked by only one thing, his subsequent RFC in Iraq; otherwise, he would have served in the rank of BG.
    	(14)  COL (R) William R. E------, dated 10 September 2014, who served with the applicant at various levels within the military infrastructure.  He offers a summary of his senior military leadership positions and current position.  He attests to the applicant's high moral and professional standards.  His character is above reproach and he relates a personal matter (divorce and family separation) in which the applicant listened with sensitivity to the situation and offered personal guidance.  The applicant always maintained the highest standard and constantly looked-out for the well-being of his Soldiers and those within his span of control.  He is aware of the circumstances that occurred during his command in Iraq, but it is not the applicant he has known.  The applicant expressed to him the feeling that he had failed his unit, the Army, and his country.  The Board is charged with viewing the applicant holistically and the true nature of his career, and he implores the Board to allow him to retire at the grade of COL (O-6).

    	(15)  COL Robert A. M----, dated 23 September 2014, who served under the applicant in the Training Division, NGB.  He states the applicant has always had a strong personality and a very moral method of personal conduct, and he is direct in his communications with peers and subordinates.  He adds that both the applicant and his wife were selfless and tireless in their service at the national level.  He adds that, "It is not the custom today to be frank, valued and direct with people.  This was not (the applicant's) intent; he only wanted to get the best from people and thus was sometimes misunderstood."  He concludes that, as the Chief, Training Division, the applicant exercised good judgment, temperance, and loyalty, respecting people and supporting the Army Values.
  
    	(16)  LTC (R) Les A. M-----, Ph.D., dated 23 September 2014, who came to know the applicant in 2010-2011 during his deployment to Iraq and after he had been removed from command of the 67th BfSB.  He states the applicant was assigned to his office for more than a month and that he faced the adversity with professionalism, dignity, and a positive attitude.  Foremost of concern to him was his former command's successful completion of the mission.  He adds that the applicant continued to mentor junior officers in the office and he shared his professional experience and advice with them.

    	(17)  Staff Sergeant Gary M. B-----, dated 13 September 2014, who has known the applicant since April 2009 when he took command of the 67th BfSB.  The applicant made "Soldier care" one of his top priorities.  He is a decisive and straight-forward leader that gets results.  The applicant required a lot from himself and in return required a lot from his staff to get the results needed to accomplish the mission.  The applicant has the requested skills to be successful in any organization.

    	(18)  LTC Andrew W. B--------, dated 15 September 2014, who has known the applicant since 1993 when he was a cadet in the Reserve Officers' Training Corps program and the applicant was the training and operations officer.  He states the applicant does not discriminate against fellow Soldiers.  The applicant is the text book example of "Be-Know-Do" and "Yes, he expected much of his subordinates and he could be gruff."  He notes that, "Some may have found him difficult to work for, but he did not dishonor the uniform."  He requests the Board restore his rank (COL/O-6) in retirement.
     
    	(19)  Major John A. G-----, dated 22 September 2014, who states the applicant was his supervisor from June 2004 to September 2005 and his senior rater from October 2005 to May 2007.  He states the applicant exemplifies high moral standards and is intensely loyal.  He and his peers agree that no other officer has taken better care of them than the applicant.  The applicant offered professional development and always provided guidance to achieve the desired results. 

    	(20)  LTC (R) Van D. C----, dated 2 October 2014, who served with the applicant from November 2001 to April 2009.  He states the applicant always displayed the highest level of integrity, professionalism, and leadership traits.  He was highly respected by subordinates and always took care of his people.  There was never a question of bias, impropriety, or decisions that demonstrated anything other than the highest integrity and adherence to the Army Values.  He adds that the applicant's performance as a COL (O-6) from September 2005 through September 2007 was exceptional and met the highest standards.

12.  A copy of an IG investigation or report is not authorized to be filed in the OMPF.  The applicant did not provide a copy of any correspondence related to an IG investigation pertaining to him.

13.  Title 10, USC, section 1370 (Commissioned officers:  general rule; exceptions), provides, in pertinent part, in:

   a.  subparagraph a (Rules for retirement in the highest grade held satisfactorily) that unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.  

   b.  subparagraph d (Reserve Officers), that in order to be credited with satisfactory service in an officer grade above major or lieutenant commander, a person covered by paragraph (1) [above] must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a reserve commissioned officer in an active status, or in a retired status on active duty, for not less than three years.

14.  DA Pam 600-3 outlines officer development and career management programs for each of the Army's career branches and functional areas.  Chapter 9 (Infantry Branch), paragraph 9-8 (Infantry RC officers), subparagraph b(6)(b), shows, "The key assignment for an RC COL is brigade/regiment commander for 36 months (plus or minus 12 months).  Development assignments include AGR program participation and various senior duty positions at the division, JFHQ, RSC, GOCOM, MUSARC levels, and HQDA and joint staff assignments."

15.  AR 20-1 (IG Activities and Procedures) prescribes the responsibility and policy for the selection and duties of inspectors general throughout the Army.  It describes IG functions, including teaching and training, inspections, assistance, and investigations.

   a.  Chapter 1 (The IG System), paragraph 1-10 (IG guidelines for ARNG matters), states the NGB and the Chief, NGB serve as the senior joint headquarters with respect to Federal IGs (active Army or ARNGUS on extended active duty in a Title 10 status) assigned or detailed to the NGB and to the JFHQ of the NG within the States.

   b.  Chapter 7 (The IG Investigations Function), paragraph 7-1 (IG investigations – purpose and procedures), subparagraph l (Allegations against a senior official), provides that commanders or IGs must forward directly to DAIG's Investigations Division through IG communications any and all allegations of impropriety or misconduct (including criminal allegations) against senior officials – defined as GOs (including ARNGUS, USAR, and retired GOs), promotable colonels, and Senior Executive System civilians – within 2 working days of receipt.

    	(1)  IGs will record all referrals of allegations against senior officials in the IG Action Request System (IGARS) database in accordance with the guidance outlined in "The Assistance and Investigations Guide."  IGs will not conduct any fact-finding into the nature of the allegations unless authorized by The IG (TIG), Deputy TIG, or the Chief of DAIG's Investigations Division.

    	(2)  Only the Secretary of the Army (SA), the Under SA, the CSA, the VCSA, and TIG may authorize or direct an IG investigation or investigative inquiry into allegations of improprieties or misconduct by a senior official or an individual of equivalent grade or position.  As a matter of Army policy, when such allegations are suspected against a senior official or discovered during a non-IG investigation or inquiry (such as a CI, an AR 15–6 investigation, or U.S. Army Criminal Investigation Command investigation), the commander or command concerned will halt the inquiry or investigation and report the allegations through IG communications within 2 working days to DAIG's Investigations Division for further action.  As a specific exception, Equal Employment Opportunity and Anti-Deficiency Act inquiries or investigations may continue even if they involve senior officials as long as DAIG's Investigations Division has been notified.

16.  AR 20-10 (Army Command Policy) prescribes the policy and responsibility of command, which includes readiness and resiliency of the force, military and personal discipline and conduct, the Army Equal Opportunity Program, Prevention of Sexual Harassment, and the Army Sexual Assault Prevention and Response Program, and the Sexual Harassment/Assault Response and
Prevention Program.  

   a.  Chapter 1 (Introduction), paragraph 1-5 (Command), states that the privilege to command is exercised by virtue of office and the special assignment of members of the United States Armed Forces holding military grade who are eligible to exercise command.  The key elements of command are authority and responsibility.  The commander is responsible for establishing leadership climate of the unit and developing disciplined and cohesive units.  Commanders and other leaders committed to the professional Army ethic promote a positive environment.

   b.  Chapter 4 (Military Discipline and Conduct), paragraph 4-19 (Treatment of persons), states the Army is a values-based organization where everyone is expected to do what is right by treating all persons as they should be treated – with dignity and respect.  Hazing, bullying, and other behaviors that undermine dignity and respect are fundamentally in opposition to our values and are prohibited.  This paragraph is punitive.  Soldiers who violate this policy may be subject to punishment under the Uniform Code of Military Justice (UCMJ). Whether or not certain acts specifically violate the provisions of this paragraph, they may be inappropriate or violate relevant civilian personnel guidance.  Commanders must seek the advice and counsel of their legal advisor when taking actions pursuant to this paragraph.

    	(1)  Hazing is any conduct whereby a Servicemember or members regardless of service, rank, or position, and without proper authority, recklessly or intentionally causes a Servicemember to suffer or be exposed to any activity that is cruel, abusive, humiliating, oppressive, demeaning, or harmful.
 	 	(2)  Bullying is any conduct whereby a Servicemember or members, regardless of service, rank, or position, intends to exclude or reject another Servicemember through cruel, abusive, humiliating, oppressive, demeaning, or harmful behavior, which results in diminishing the other Servicemember's dignity, position, or status.  Absent outside intervention, bullying will typically continue without any identifiable end-point.

17.  AR 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 SA.
Chapter 2 (General) provides in:

   a.  paragraph 2-4, that 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.  Generally, a determination will be based on the Soldier's overall service in the grade in question, either on active duty or other service qualifying the Soldier for service/physical disability retirement, receipt of retired pay, or separation for physical disability.  Circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the following –

* medical reasons (that may have been a contributing or decisive factor in a reduction in grade, misconduct, or substandard performance)
* compassionate circumstances
* length of time in grade
* active duty service obligation
* performance level (as reflected in evaluation reports)
* nature and severity of misconduct, if any
* the grade at which the misconduct was committed

   b.  paragraph 2-5, that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when –

* the highest grade was a result of a terminal leave promotion
* reversion to a lower grade was expressly for –

* prejudice or cause
* owing to misconduct
* caused by nonjudicial punishment pursuant to UCMJ, Article 15
* the result of the sentence of a court-martial

* there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was placed on the retired list in the grade of rank of COL (O-6) and back pay of all retired pay as a result of this correction because there should have been a DAIG investigation based on the allegations against him as a senior official (i.e., a promotable colonel), there were "compassionate circumstances" that should have been considered by the AGDRB in the determination of his retired grade, and he served satisfactorily in several key COL (O-6) positions.

2.  It is acknowledged that the applicant is not requesting to be placed on the retired list in the grade of rank of BG (O-7).  However, he does contend that the grade determination of LTC (O-5) effectively amounts to a two-grade reduction.

   a.  The evidence of record shows he was nominated by the United States Senate for BG (O-7) and that he was selected for a BG (O-7) position.  The applicant was relieved for cause from his duties as Commander, 67th BfSG (a COL (O-6) position).  There is no evidence of record that shows he was promoted to BG or that he served satisfactorily in the grade of BG (O-7) for the required statutory period of service.
   
   b.  Thus, his contention is offered without him having met any of the required criteria for retirement in the grade of BG (O-7) and seems to be presented primarily as an emotive argument in support of his case.

3.  In his application to this Board, he contends:

   a.  The very first time that he saw the HQ, USF-I, Baghdad, Iraq, memorandum, dated 21 March 2011, subject:  67th BfSB Command Climate, signed by GEN Lloyd J. A----- III, was when it was forwarded to him with the advisory opinion (i.e., on 28 August 2014).  However, the evidence of record shows the letter is an element of the AR 15-6 investigation and that it is filed in the applicant's OMPF as an allied document to the GOMOR.  Thus, his contention regarding the first time he saw the letter is not supported by the evidence of record.

   b.  He states he was selected for the BG (O-7) position as Director (emphasis added) of Army Operations, DCS G-3.  

    	(1)  The letter he provides from MG Timothy K----, shows that MG K---- indicated that he was selected as the Deputy Director (emphasis added) of Army Operations Center, DCS G-3.  In addition, the letter he provides from 
BG (R) Ernie A-----, shows that BG A----- recommended him as his replacement for the Deputy Director (emphasis added) of the Army Operations positon.

    	(2)  It is noted that the applicant provided a detailed letter in support of his application (and also a detailed rebuttal to the advisory opinion).  Whether  intentional or unintentional, it appears the applicant misrepresented the title of the duty position he was actually selected for.

4.  His contention that there should have been a DAIG investigation based on allegations against him because he was a COL(P) was considered.

   a.  The evidence of record shows that, in February 2011, based on having received several requests for assistance regarding the command climate within the 67th BfSG, the USF-I JIGO conducted a preliminary analysis to assess the command climate.  There is no evidence the JIGO conducted any fact-finding into the nature or reason(s) for the requests for assistance regarding the matter.

   b.  The evidence of record also shows a CI into the command climate was initiated on 21 March 2011 and, on 25 March 2011, the CI was transitioned into an informal AR 15-6 Investigation.  The findings of the AR 15-6 Investigation were approved on 13 April 2011.

   c.  The evidence of record shows that commanders or IGs must forward directly to DAIG's Investigations Division through IG communications any and all allegations of impropriety or misconduct against senior officials (that includes COL (P)s) within 2 working days of receipt.  The evidence of record also shows that IGs will not conduct any fact-finding into the nature of the allegations (emphasis added) unless authorized by TIG, DTIG, or the Chief of DAIG's Investigations Division.  In addition, only the SA, the Under SA, the CSA, the VCSA, and TIG may authorize or direct an IG investigation or investigative inquiry (emphasis added) into allegations of improprieties or misconduct by a senior official or an individual of equivalent grade or position.  

    	(1)  Thus, the evidence of record does not support the contention that there should have been a DAIG investigation based on allegations against the applicant.

    	(2)  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  Thus, in the absence of evidence to the contrary, it is presumed that information pertaining to the applicant was forwarded through IG communication channels and that an appropriate authority directed the investigative inquiry into the allegations of improprieties or misconduct by the applicant.

   d.  Thus, based on the available evidence of record, it is concluded that the approved AR 15-6 Investigation, that was the basis for his RFC OER (and GOMOR) and resulted in the determination of his retired grade, was proper.

5.  He contends that the portion of the advisory opinion that refers to DA Pam 600-3, paragraph 9-8, "that the 'only key development (emphasis added) assignment for a RC infantry COL is brigade command" is only a partial quote, and that it goes on to state "Developmental assignments include AGR program participation and various senior duty positions at the division, JFHQ, RSC, GOCOM, MUSARC levels, and HQDA and joint staff assignments."

   a.  His contention is accurate in that it is only a partial quote of the subparagraph.  However, a complete and careful reading of the subparagraph shows "The key assignment for an RC COL is brigade/regiment commander for 36 months (plus or minus 12 months).  Development assignments include AGR program participation and various senior duty positions at the division, JFHQ, RSC, GOCOM, MUSARC levels, and HQDA and joint staff assignments."

   b.  It is noted that in his rebuttal to the advisory opinion, he misrepresented the advisory official's statement by inserting the word "development."
   
   c.  Thus, the evidence of record shows the applicant's assignment as brigade commander was a key assignment, whereas his previous assignments in the grade of COL (O-6) were development assignments (emphasis added).

6.  The evidence of record shows the AGDRB will make a grade determination based on the Soldier's overall service in the grade in question, either on active duty or other service qualifying the Soldier for service retirement.

   a.  The applicant's OERs, spanning the period from 21 October 2005 through 8 February 2011, attest to his outstanding service in the grade of rank of COL. 

   b.  The 20 character reference letters the applicant provided with his rebuttal were carefully considered.  Of the 20 letters, 18 of them provide favorable information about the applicant based on the writer's knowledge of him in duty positions prior to having served as brigade commander.  One of the letters provides favorable information regarding his performance as brigade commander and appears to be a recommendation for employment in an organization.  The remaining letter describes the applicant's character and professionalism during the period immediately following his removal from command.
   c.  The determination as to whether such service is found satisfactory includes, in pertinent part, compassionate circumstances, length of TIG, 
performance level (as reflected in evaluation reports), nature and severity of misconduct, if any, and the grade at which the misconduct was committed (emphasis added).

   d.  The determination as to whether service in the highest grade normally will be considered to have been unsatisfactory includes, when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory.

   e.  His RFC OER for the period from 9 February 2011 through 23 April 2011 describes the serious misconduct he committed in the grade of rank of COL/O-6.  It describes a command climate of anxiety and degradation resulting in his Soldiers living in abject fear; emotional, verbal, and physical abuse of Soldiers under his command; and a failure to execute his command responsibilities in accordance with Army Command Policy or the Army Values.

7.  His contention that there were "compassionate circumstances" that should have been considered by the AGDRB in the determination of his retired grade was considered.

   a.  The evidence of record shows he was under tremendous strain during the August and September 2010 timeframe due to the terminal illnesses of both his mother and mother-in-law and that he suffered tremendous grief when they passed away in late December 2010.

   b.  The circumstances and sincerity of his comments are not in question; however, there is no evidence that shows he requested a compassionate reassignment.  There is also no evidence of record that shows he sought professional counseling or that he made known to his rater (the IO), senior rater, or any officer in his chain of command that he was under "tremendous strain" or suffering "tremendous grief contributing to him acting completely out of character" during the period of service under review.

   c.  Thus, given his senior rank and length of military experience, coupled with the absence of official documentary evidence supporting the claims he makes to this Board, his contention of "compassionate circumstances as a factor of consideration" in his case is not supported by the available evidence of record for the period of service under review.

8.  The AGDRB determined the applicant be placed on the retired list in the grade of rank of LTC/O-5.  The evidence of record fails to show the decision of the ADGRB was improper or unjust.

9.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the 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.

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