IN THE CASE OF:  	  

		BOARD DATE:  11 June 2015	  

		DOCKET NUMBER:  AR20140013211 


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 reversal of the Army Grade Determination Review Board (AGDRB) decision to place him on the Retired List in the rank/grade of major (MAJ)/pay grade O-4 instead of lieutenant colonel (LTC)/pay grade O-5.

2.  The applicant states he was retired in the grade of O-4 after serving satisfactorily in the grade of O-5 for 4 years and 2 months.  The decision by the AGDRB was in error and an injustice.  During a U.S. Army Human Resources Command (HRC) pre-O-6 promotion board file scrub in late 2012 he was notified that he would be required to show cause for why he should not be eliminated based on a general officer memorandum of reprimand (GOMOR) he received in 2009 for the appearance of an inappropriate relationship while he was a MAJ.  It had been his intent to seek retirement, so he decided to submit a request for retirement in lieu of elimination.  When his retirement was approved, he received notice that the AGDRB determined that he should be retired as an O-4.  He served satisfactorily in the grade of O-5.  

3.  He understands the reason his retirement application needed to be reviewed by the AGDRB.  However, the unfavorable information and the notification of elimination were related entirely to one incident in 2009.  He received a GOMOR for taking actions that allowed the appearance of an inappropriate relationship.  At the time of the incident and the GOMOR he was serving as a MAJ.  Apart from that error in judgment, his leadership maintained their trust and confidence in his abilities and did not seek further administrative action.  

4.  He knew that by his actions he left himself open to the appearance of impropriety and he apologized to his leadership.  He took the correction to heart and learned important lessons from it.  He successfully completed the deployment and was awarded the Meritorious Service Medal for that time period. He was subsequently promoted to LTC where he served successfully in several positions for over 4 years.  He was selected for battalion command and successfully completed that tour.

5.  He has absolutely no record of misconduct during his service as an O-5 and no negative paper that could form the basis for a determination that the grade of O-5 was not the highest grade at which he served satisfactorily.

6.  He contacted MAJ EH, the Army JAG officer who had assisted him in his application for retirement.  MAJ EH contacted a legal advisor to the AGDRB, who scrubbed his AGDRB file and could find no lawful reason why the O-4 retirement determination had been made.

7.  The basis under which he was considered for elimination completely predated and had absolutely no connection with his successful service for more than 3 years as an O-5.  He was not notified of any disciplinary problem or any issue with his duty performance as a LTC and there is nothing in his military records that would support such an allegation.

8.  He states under Army Regulation 15-80 (AGDRB and Grade Determinations) service in the highest grade will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the 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 grade was unsatisfactory.  In his case, not only is there not sufficient unfavorable information regarding his service as an O-5, there is NO unfavorable information.

9.  The Army considered his mistake at the grade of O-4, as well as the rest of his character, service, and potential, and subsequently asked him to assume the greater responsibilities of service in the next higher grade.  He served well and faithfully as an O-5, including his challenging and rewarding tour as a battalion commander.

10.  The applicant provides:

* a sworn affidavit, dated 1 November 2013, from MAJ ECH
* recommendation and certificate awarding him the Meritorious Service Medal
* GOMOR, dated 29 May 2009
* his acknowledgement of and response to the GOMOR, dated 29 May 2009
* 11 DA Forms 67-9 (Officer Evaluation Report) (OER)
* a memorandum, dated 7 December 2012, from HRC, subject: Initiation of Elimination
* a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag))
* his acknowledgement, dated 1 February 2013, of notification for recommendation for involuntary release form active duty
* four recommendations to the President, Elimination Board, HRC
* Officer Record Brief (ORB)

CONSIDERATION OF EVIDENCE:

1.  He was commissioned a second lieutenant in the Army of the United States on 24 June 1988.  He was ordered to active duty effective 7 February 1989.

2.  On 1 October 2002, he was promoted to MAJ.

3.  He served in Iraq from 24 March to 3 May 2007.  He was awarded the Meritorious Service Medal for exceptionally meritorious service as the executive officer of 2nd Battalion, 337th Regiment from 11 May 2007 - 11 January 2008.

4.  He was deployed to Afghanistan from 9 October 2008 - 24 July 2009.  He was assigned to Afghanistan Regional Security Integration Command - East (ARSIC-E), Forward Operating Base (FOB) Lightning.

5.  On 4 May 2009, Colonel (COL) JCL, Commander, ARSIC-E, FOB Lightning recommended the applicant be issued a General Officer Letter of Reprimand (GOMOR) due to his maintaining an unprofessional relationship with a married Air Force captain which was largely perceived to be an affair.  The Air Force captain was also assigned to ARSIC-E at FOB Lightning.  Written witness statements indicated that the applicant was carrying on a conspicuous romantic relationship with a married Air Force captain, which involved her spending nights in his sleeping quarters.  The witness statements further indicate that the applicant's affirmative representations regarding the nature of this relationship were untruthful.

6.  On 29 May 2009, Major General (MG) RPF, Commanding General, Combined Security Transition Command - Afghanistan, issued him a GOMOR for failure to obey an order and conduct unbecoming an officer and gentleman.

	a.  During the months of March through May 2009, he engaged in a relationship with a married female Air Force captain in a manner that clearly created a perception among enlisted members and officers serving at ARSIC-E that he was having an affair.  He brought the captain to his living quarters, allowing her to spend the night with him behind closed doors. 

	b.  His commander, COL JCL, counseled him on the perception of impropriety based on the relationship and ultimately gave him a direct order to not be in private or semi-private settings with the captain; he violated this order.  He was found to be in a romantic embrace in a semi-private setting.

	c.  MG RPF stated the applicant demonstrated a gross lack of judgment and consideration for his position by carrying on a clearly unprofessional relationship with a married junior officer.  His conduct set a poor example for all who witnessed it and created an unprofessional appearance.  His misconduct reflected poorly on him as an officer in the United States Army, made the MG question his judgment, and raised serious concerns as to his potential for continued service.

7.  The applicant acknowledged receipt of the GOMOR and indicated he intended to submit a statement and/or matters in rebuttal.

8.  On 6 June 2009, the ARSIC-E commander reviewed the GOMOR and matters submitted by the applicant in response thereto.  He recommended that the GOMOR be filed in the performance folder of his official military personnel file (OMPF).

9.  Brigadier General (BG) SPH, Commander, Combined Joint Task Force (CJTF) - Phoenix, submitted a memorandum to document his recommendation for disposition regarding the applicant's misconduct.  Based on sworn statements which were compiled, BG SPH concurred with the ARSIC-E Commander's recommendations for disposition and therefore requested release of disposition authority to him.  In the alternative he requested the applicant receive a locally filed GOMOR.

10.  The applicant submitted a response to the GOMOR, dated 29 May 2009.  He requested that the GOMOR be downgraded to a Memorandum of Concern or that it be a locally filed reprimand.

	a.  He stated there was no romantic relationship existing with the Air Force captain.  It was brought to his attention by COL JCL in late March 2009 that the perception of such a relationship existed.  He assured him of the limits of their relationship.  The actions he took following counseling further perpetuated the perception which he sincerely regretted.  It was his intention to combat the perceptions in a direct manner and change them by not reducing or limiting the friendship but in fact showing it for what it was.

	b.  He stated the female officer did visit him in his living quarters numerous times at his invitation during times typically associated with sleep.  The hours of the visits did coincide with the end of his duty day which on average was 0100 hours.  During these visits they watched movies together, played video games, and talked.  Upon notification of an Air Force directive prohibiting females from entering male inhabited buildings, these visits immediately stopped.

	c.  When he entered the troop medical clinic (TMC) on FOB Lightening on the evening of 2 May 2009 the Air Force officer and three medics were present.  During his visit to the TMC he and the officer were at no time alone.  As they were leaving the TMC he put his arm around her neck with his left hand resting on her left shoulder.  This was not done as a romantic gesture, however it was inappropriate.  There was at no time any kiss as was perceived by the officer they came into contact with.

	d.  He regrets all that transpired as a result of his stubbornness and he learned a valuable lesson regarding the destructiveness of perceptions and rumors.  He attempted to disprove the perceptions and rumors through deliberate actions.  He failed in his attempt.  Since the incident he disassociated from everyone outside the scope of his official duties to prevent any additional misconceptions for the remainder of his tour in Afghanistan.

	e.  If the GOMOR would not be downgraded to a letter of concern, he requested the GOMOR be locally filed as recommended by the Commander, CJTF-Phoenix.

11.  On 11 June 2009, MG RPF directed the GOMOR issued on 29 May 2009 be filed in the applicant's OMPF.  He reached this decision after carefully evaluating the memorandum of reprimand, the supporting documentary evidence, and the rebuttal matters submitted by the applicant.  The applicant did not present information that either substantially mitigated or excused the conduct for which he was reprimanded.

12.  On 17 June 2009, the GOMOR, dated 29 May 2009 was filed in the performance folder of his OMPF in iPERMS (integrated Personnel Electronic Records Management System).

13.  A note, dated 14 July 2009, from MG RPF, the same general who had issued his GOMOR, congratulated the applicant on his recent selection for promotion to LTC.
14.  The applicant received an OER for the period 16 May 2009 to 15 July 2009.  He was assigned to CJTF - Phoenix in Afghanistan.  His senior rater was the Deputy Commander, CJTF- Phoenix.  

	a.  His rater evaluated him in Part Va (Evaluate the Rated Officer's Performance during the Rating Period and his/her Potential for Promotion) as "Outstanding Performance, Must Promote."  His rater stated in Part Vc (Comment on Potential for Promotion), "(the applicant) has unlimited potential.  Promote to Lieutenant Colonel immediately and assign to the most demanding positions."

	b.  His senior rater evaluated him in Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) as "Fully Qualified."  In Part VIId (List Three Future Assignments for Which this Officer is Best Suited) his senior rater listed:

* Battalion Commander
* Joint Staff Senior Planner
* Brigade Executive Officer

15.  He returned from Afghanistan on 24 July 2009.

16.  On 28 July 2009, he was awarded the Meritorious Service Medal for meritorious service while deployed in support of Operation Enduring Freedom as the Joint Operations Training Officer for CJTF - Phoenix from 22 October 2008 to 15 July 2009.

17.  HRC Order Number 231-009, dated 19 August 2009, promoted him to LTC with an effective date and date of rank of 1 September 2009.

18.  He received an OER for the period 16 July 2009 - 1 February 2010.  He was assigned to Headquarters and Headquarters Company (HHC), 3rd Maneuver Enhancement Brigade (MEB) at Fort Richardson, AK as the Fire Support Coordinator.

	a.  His rater, the brigade executive officer, evaluated him in Part Va as "Outstanding Performance, Must Promote."  His rater stated in Part Vc "Unlimited potential.  Promote to Colonel.  Select for SSC (senior service college)" 

	b.  His senior rater, the brigade commander,  evaluated him in Part VIIa as "Best Qualified."  In Part VIId his senior rater listed:

* Battalion Commander
* Division Fire Support Coordinator
* Division G3

19.  He was selected by the Commanding General, U.S. Army Alaska (USARAK) to command the 17th Combat Sustainment Support Battalion (CSSB) at Joint Base Elmendorf-Richardson, AK.  He received an OER for the period from 
2 February 2010 - 1 February 2011.  

	a.  His rater, the deputy brigade commander, evaluated him in Part Va as "Outstanding Performance, Must Promote."  His rater stated in Part Vc "Superlative performance.  Unlimited potential.  (The applicant) must be promoted to Colonel first look and selected to attend SSC.  Solid Brigade Command potential." 

	b.  His senior rater, the brigade commander, evaluated him in Part VIIa as "Best Qualified."  In Part VIId his senior rater listed:

* Brigade Deputy Commander
* Division G3
* Brigade Commander

20.  He received an OER for the period 2 February 2011 - 15 July 2011 as the Battalion Commander, 17th CSSB, Joint Base Elmendorf-Richardson, AK.

	a.  His rater, the deputy brigade commander, evaluated him in Part Va as "Outstanding Performance, Must Promote."  His rater stated in Part Vc "Superlative performance.  Unlimited potential.  (The applicant) must be promoted to Colonel first look and selected to attend SSC.  Solid Brigade Command potential." 

	b.  His senior rater, the brigade commander, evaluated him in Part VIIa as "Best Qualified."  In Part VIId his senior rater listed:

* Brigade Deputy Commander
* Division G3
* Brigade Commander

21.  He received an OER for the period from 16 July 2011 - 17 May 2012.  He was assigned as the USARAK G-3/5, Chief of Plans.

	a.  His rater, the USARAK G-3/5/7, evaluated him in Part Va as "Outstanding Performance, Must Promote."  His rater stated in Part Vc "Select for battalion command and promote to colonel."
	b.  His senior rater, the commanding general, evaluated him in Part VIIa as "Best Qualified."  In Part VIId his senior rater listed:

* Deputy Brigade Commander
* Chief of Operations
* USARAK G-3

22.  He received an OER for the period from 18 May 2012 - 17 May 2013.  He was assigned as the USARAK G-3/5, Plans Officer.

	a.  His rater, the USARAK G-3/5/7,  evaluated him in Part Va as "Outstanding Performance, Must Promote."  His rater stated in Part Vc "(The applicant)" has demonstrated potential for Battalion Command and promotion to Colonel."

	b.  His senior rater, the commanding general, evaluated him in Part VIIa as "Fully Qualified."  In Part VIId his senior rater listed:

* Brigade Deputy Commanding Officer
* Chief of Operations
* Chief of Plans

23.  As a result of deliberations during the Fiscal Year (FY) 2012, COL, Army, Maneuver, Fires and Effects (MFE), Operations Support (OS) and Force Sustainment (FS), Promotion Selection Board (PSB), a majority of the members voted that the applicant be required to show cause for retention on active duty or for elimination as a result of misconduct.  The PSB noted his OMPF contained a GOMOR, dated 29 May 2009, for an unprofessional relationship with a married Air Force junior officer.

24.  On 7 December 2012, he was notified that he was identified by the FY 2012, COL, Army, MFE, OS and FS, PSB to show cause for retention on active duty because of misconduct, moral, or professional dereliction.

	a.  The action for elimination was based on:

		(1)  Substantiated derogatory activity resulting in a GOMOR, dated 
29 May 2009, which was filed in his OMPF.

		(2)  Conduct unbecoming an officer as indicated in his GOMOR.

	b.  He was advised he could have the assistance of an officer of the Judge Advocate General’s (JAG) Corps appointed as counsel, or seek civilian counsel of his own selection to prepare a written statement indicting any pertinent facts or any rebuttal bearing on the question of his elimination.

	c.  In accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges) he could:

		(1)  Submit a rebuttal with all supporting documentation to show how he had either successfully overcome the reason for the Show Cause Proceeding or a statement explaining his past actions/behavior.

		(2)  Submit his resignation in lieu of elimination.

		(3)  Apply for retirement in lieu of elimination if otherwise eligible.  The effective date of retirement would be either at the 20-year mark of active Federal service, or no later than two full months from the final adjudication of his request, whichever is later.

	(a)  Along with his retirement in lieu of elimination, he could submit matters for the AGDRB because his retirement in lieu of elimination, OMPF, ORB, and the derogatory information would be forwarded the AGDRB.  The AGDRB would make a recommendation as to the highest grade in which he had served satisfactorily for retirement purposes.
	
	(b)  He may not appear before the AGDRB.

	(c)  He had the right to consult with an attorney of the JAG Corps or seek private civilian counsel at no expense to the Government.

	d.  Elect to not request one of the above options by submitting a declination statement and requesting appearance before a Field Board of Inquiry.	

25.  On 1 February 2013, he acknowledged receipt of the memorandum recommending his involuntary separation from active duty.  He elected to make a statement or submit a rebuttal in his behalf.  He elected to submit a retirement application.  He submitted four letters of support to the President, Elimination Board, HRC.

	a.  In a memorandum, dated 14 January 2013, COL JCL, the officer originally recommending the GOMOR, recommended the Elimination Board honor the applicant's request for voluntary retirement effective 1 February 2014.  As evidenced by his strong record of performance over the past 4 years, to include promotion and command, the applicant appeared to have overcome the deficiency noted in his GOMOR, 29 May 2009.  The applicant clearly recovered from his transgression, became a top-notch battalion commander, and was a role model for all Soldiers.

	b.  In a memorandum, dated 24 January 2013, Command Sergeant Major (CSM) (Retired) CML recommended the applicant for continued service on active duty.  His retirement request must be approved for 1 February 2014 and the elimination board absolutely abated.  CSM CML stated he served with many great leaders, but very few showed the care and concern he observed from the applicant regarding Soldiers and their families.  He was handpicked over five other officers to serve as Battalion Commander in the 3rd Maneuver Enhancement Brigade.  He was never too busy to stop what he was doing to resolve matters that enhanced the well being and high morale of Soldiers and their families.  His unit was continuously recognized for volunteerism and positive contributions to the community.

	c.  In a memorandum, dated 28 January 2013, COL BKW, Assistant Commandant, U.S. Army Engineer School, recommended the applicant for continued service on active duty, his elimination board be abated, and his retirement packet be accepted and supported.  He and MG WT, USARAK Commander handpicked the applicant to serve as Battalion Commander of a 1,200-Soldier command.  The applicant trained, deployed, and cared for Soldiers and their families like very few he had seen in his 26 years of military service.	

	d.  In a memorandum, dated 29 January 2013, LTC KDZ (Retired), recommended the applicant's continued service on active duty until his 1 February 2014 retirement.  As the Deputy Brigade Commander in the 3rd MEB he witnessed the applicant's leadership firsthand.  Whether on staff or leading Soldiers, he willingly sacrificed his time and energy to ensure the good order and discipline of his command.  He was adored by his Soldiers and their families.  He was approachable and the command climate within his battalion was the model for all other commanders within the brigade.

26.  On 18 April 2013, the applicant requested retirement in lieu of elimination.  MG MXG, Commander, USARAK recommended approval of his request.

27.  On 18 April 2013, the applicant submitted matters for the AGDRB to consider concerning his request for retirement in lieu of elimination.

	a.  The derogatory information cited as the basis for elimination was a single, isolated deficiency which was not combined with any other deficiencies into a pattern that would outweigh his overall record.  He believed his excellent service record over the past 24 years, spanning his entire career both before and after the one deficiency underlying this action, unquestionably demonstrated that he was able to overcome the incident and serve successfully in positions of increased rank and responsibility.

	b.  The conduct which formed the basis for his elimination action occurred approximately 4 years ago.  In his response to the GOMOR, he took responsibility for continuing, and failing to appropriately limit, a platonic professional relationship and personal friendship with a female officer, despite the appearance of impropriety it fostered in the unit.  He knew that his relationship was perceived as inappropriate, and he failed to take adequate steps to rectify the situation.  He fully and sincerely regretted those actions during March through April 2009.  He was deeply sorry for his failings in that situation, and had apologized to his leadership for the way his actions distracted from the mission.

	c.  By not initiating a local officer elimination action, his commander recognized that while he had erred in his judgment, its nature did not warrant elimination.  He successfully completed the deployment mission, received an OER reflecting strong performance and potential and was awarded a Meritorious Service Medal.

	d.  The purpose of his GOMOR was to reinforce the importance of a course correction.  The purpose of the GOMOR had been fully met in that the lessons learned from this experience significantly changed his actions and attitudes in his interactions with others.  He was ever vigilant of his surroundings in order to prevent any perception or misconception of anything other than professionalism.

	e.  He humbly and wholeheartedly accepted this correction and had shown resiliency in 4 additional years of dedicated service.  That service included being successfully entrusted with increased responsibility in his promotion to LTC, service as a battalion commander and as a USARAK primary staff officer.

28.  On 17 July 2013, HRC requested a grade determination from the AGDRB based on elimination action for misconduct, moral, or professional dereliction.

29.  On 6 September 2013, the Acting Deputy Assistant Secretary of the Army (DASA), Review Boards (RB), notified HRC that the AGDRB reviewed the retirement in lieu of elimination based on misconduct and moral or professional dereliction submitted by the applicant and the request by HRC for a grade determination.  The Acting DASA (RB) approved his retirement in lieu of elimination and that he be placed on the Retired List in the grade of O-4 (MAJ).

30.  On 23 September 2013, HRC notified the applicant the DASA (RB) approved his retirement in lieu of elimination and directed he be retired in the grade of O-4 (MAJ).  The effective date of his retirement was to be 30 November 2013 with placement on the Retired List on 1 December 2013.

31.  The applicant submitted a sworn affidavit, dated 1 November 2013, from MAJ ECH.  MAJ ECH was assigned as Senior Defense Counsel for USARAK and represented the applicant in his request for retirement in lieu of elimination.  MAJ ECH stated:

	a.  The HRC-initiated elimination action was based solely on misconduct alleged to have occurred while the applicant was a MAJ.  He was subsequently decorated for his service on that same deployment, promoted to LTC, and selected for battalion command.

	b.  When he learned the AGDRB determined the applicant should be retired in the grade of O-4, he could not find any basis for this action in law or regulation.

	c.  He called Mr. JS, Army Review Boards Agency (ARBA) legal advisor, and raised his concern to him regarding the AGDRB decision and he pulled the applicant's AGDRB file.  He spent approximately 20 minutes going through all the documentation the AGDRB could have considered on the case.  Mr. JS stated that since the misconduct was confined to one incident during the applicant's service as an O-4, he did not see any legal basis for the board's decision.  He stated that unfortunately the AGDRB decision was final, but recommended the applicant appeal it to the ABCMR on the basis of both legal error and equity.  MAJ ECH stated, "Mr. JS stated that the AGDRB was experiencing a significant increase in actions, and speculated that the board, based on volume, had a mistaken understanding of the case."

32.  On 30 November 2013, he was retired by reason of unacceptable conduct. He completed 24 years, 9 months, and 27 days of active service.

	a.  Item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) contains the entry "RETIRED LIST GRADE MAJ." 

	b.  Installation Management Command, U.S. Army Element, Joint Base Elmendorf-Richardson, AK Orders 274-0173, dated 1 October 2013, retired him effective 30 November 2013 and placed him on the Retired List effective 
1 December 2013 in the grade of MAJ.  

33.  Army Regulation 15-80 governs the actions and composition of the AGDRB 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 (SA).

	a.  Paragraph 1-5 states: 

		(1)  The SA retains the prerogative to accomplish grade determination without referral to the AGDRB.  

		(2)  The DASA (RB) will make discretionary grade determinations for the SA for officers below the grade of brigadier general involving service retirement, physical disability retirement, computation of retired pay, or separation for physical disability.  The DASA (RB) retains the authority to take final action in any case in which a subordinate authority, including the AGDRB, would otherwise be authorized to take final action.

		(3)  The Senior Legal Advisor, ARBA will:

	(a)  Monitor the Army grade determination review process.

	(b)  Compile and organize evidence for review by the AGDRB.

	(c)  Serve as recorder for the AGDRB involving general officers.

	(d)  Report AGDRB recommendations to the appropriate official for final determination.

	(e)  Provide legal advice to the AGDRB.

	b.	Paragraph 2-2 states the AGDRB considers individual cases that are referred to it in accordance with this regulation.  It directs or recommends the final grade determination that affects an individual’s separation or retired pay. The AGDRB decides cases on the evidence of record.  It is not an investigative body.  AGDRB discussions and individual votes of members are privileged and confidential and will be disclosed only to those individuals in the decision-making process with a need to know.

	c.  Paragraph 2-4 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.  Generally, determination will be based on the Soldier’s overall service in the grade in question (emphasis added), 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:

		(1)  Performance level, as reflected in evaluation reports and other portions of the service record that reflect performance.  In reviewing these matters, the AGDRB will consider whether reporting officials were aware of the misconduct or performance giving rise to the grade determination.

		(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 grade determinations is “highest grade satisfactorily served,” not whether the individual has been sufficiently punished.

		(3)  The grade at which the misconduct was committed.

	c.  Paragraph 2-5 of Army Regulation 15-80 covers “unsatisfactory service” and states that service in a grade will be considered to have been unsatisfactory when:  

		(1)  The highest grade or rank was a result of a terminal leave promotion; 

		(2)  Reversion to a lower grade was expressly for prejudice or cause, due to misconduct, caused by nonjudicial punishment pursuant to Article 15, Uniform code of Military Justice (UCMJ) or the result of the sentence of a court-martial;  

		(3)  There is sufficient unfavorable information to establish that the soldier’s service in the grade in question was not satisfactory.  One specific act of misconduct may form the basis for a determination that the overall service in that grade was not satisfactory, regardless of the period of time served in grade.  However, service retirement in lieu of or as a result of elimination action will not by itself, preclude retirement in the highest grade (emphasis added).

34.  Army Regulation 600-8-24 provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.

	a.  Paragraph 4-2b states elimination action may be or will be initiated for misconduct, moral or professional dereliction, or in the interests of national security.  This includes conduct unbecoming an officer and failure to obey an order.

	b.  Paragraph 4-24 states any officer identified for elimination may, at any time during or prior to the final action in the elimination case, apply for retirement in lieu of elimination if otherwise eligible.  Any officer who has been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding or inquiry (except minor traffic infractions) since the officer’s last promotion, will have the case forwarded to the AGDRB to determine the highest grade the officer satisfactorily held while on active duty, provided that such information is reflected, or should be reflected by regulation, in the officer’s OMPF.  Final retirement grade determination is made by DASA (RB) or Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)), as appropriate.

	c.  Paragraph 6-16d states an officer who receives a notification memorandum of impending elimination may request retirement in lieu of elimination, if the officer has 19 years and 6 months or more active federal service on the date of such application.  If the officer elects to retire and the elimination action involved misconduct or moral or professional dereliction, Commanding General, HRC, will forward the retirement application and memorandum of notification for elimination with all supporting documentation to the AGDRB.  Any comment or rebuttal by the officer and the officer’s OMPF will be included in the forwarding documentation.  The AGDRB will make recommendation as to the highest grade that the officer has served on active duty satisfactorily.

35.  Title 10, United States Code, Section 1370 governs the retired grade of commissioned officers.  Section 1370 (a) states the rule for retirement in the highest grade held satisfactorily.  This provision of law essentially states that, unless entitled to a higher grade by some other provision of law, a commissioned officer of the Army, Navy, Air Force or Marine Corps who retires under any provision of law other than chapter 61 (Retirement or Separation for Physical Disability) or chapter 1223 (Retired Pay for Non-Regular Service) of Title 10 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 6 months. 

DISCUSSION AND CONCLUSIONS:

1.  The AGDRB discussions in their determination of the applicant's highest grade satisfactorily held were not available for the Board to review.

2.  The GOMOR and the reasons for the issuance of the GOMOR occurred while the applicant was serving in the grade of MAJ.  The fact that the GOMOR was filed in his OMPF on 17 June 2009 and the note, dated 14 July 2009, from MG RPF, the GOMOR issuing officer, congratulating him on his selection for promotion to LTC show that officials were aware of his misconduct prior to the date of his promotion to LTC.  Therefore, the GOMOR and the actions cannot be used in determining whether the applicant served satisfactorily in the grade of LTC.

3.  Since being promoted to LTC, the applicant completed a successful assignment as a battalion commander.  His OERs consistently show he was evaluated as "Outstanding Performance, Must Promote" by his raters and "Best Qualified" for promotion by his senior raters.  His senior raters consistently recommended him for assignments of increasing responsibility.

4.  There is no evidence that he was the subject of any adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry since the date of his promotion to LTC.

5.  Army Regulation 15-80 specifically states that service retirement in lieu of or as a result of elimination action will not, by itself, preclude retirement in the highest grade.

6.  Therefore, in view of the above, it would be equitable to correct the applicant's records to show the highest grade he satisfactorily held was LTC and that he was placed on the Retired List in the grade of LTC.

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Deleting the entry "RETIRED LIST GRADE MAJ" in item 18 of his 
DD Form 214.

	b.  Amending Installation Management Command, U.S. Army Element, Joint Base Elmendorf-Richardson, AK Orders 274-0173, dated 1 October 2013, by changing them to read "Retired grade/Date of rank:  LTC/1 September 2009."

	c.  Paying him any monies due as a result of the above corrections.




      ___________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)                                         AR20140013211



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ABCMR Record of Proceedings (cont)                                         AR20140013211



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