IN THE CASE OF:	  

		BOARD DATE:	  19 May 2015

		DOCKET NUMBER:  AR20140015392


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reversal of the Deputy Assistant Secretary of the Army (DASA) (Review Boards (RB)) decision to place him on the Retired List in the rank/pay grade of sergeant first class (SFC)/E-7 and allow him to retire in the rank of captain (CPT)/O-3.  

2.  The applicant states, in effect, the following:

     a.  He had served 9 years and 6 months as a CPT when he was placed on the U.S. Army's Retired List in the rank of SFC/E-7.

     b.  The law allows the Army to approve a retirement for an officer once the officer has 8 years of service.  

     c.  On 28 March 2014, the Department of Army Board of Review for Eliminations recommended that he be involuntarily eliminated from the U.S. Army based on misconduct and moral or professional dereliction with an honorable characterization of service, which by operation of law converted to a retirement in lieu of elimination.

     d.  The board's decision was based on a general court-martial conviction he received on 1 April 2008 when he was a lieutenant for violation of Article 133 of the the Uniform Code of Military Justice, conduct unbecoming an officer and a gentlemen.  

     e.  He was approached about his misconduct with an Article 15 and opted to exercise his rights and requested a trial by court-martial.  He would eventually receive a General Officer Memorandum of Reprimand (GOMOR) as punishment.

     f.  Since his GOMOR, he has served loyally and honorably assuming a command while serving for a total of 24 years in the Reserve and active service. 

     g.  While still on active duty, on 30 April 2014, he submitted an exception to policy to retire as a captain.  This request was not fully processed because he reached the retirement date before the DASA was able to act upon his request.   

3.  The applicant provides the following as evidence:

* self-authored Memorandum for Record (MFR), dated 30 April 2014
* a memorandum from his Defense Counsel, CPT B.W., dated 10 May 2014, to the Assistant Secretary, Manpower and Reserve Affairs, subject: Exception Granting Authority to Consider a Soldier Eligible for Retirement as an Officer
* seven DA Forms 67-9 (Officer Evaluation Report (OER)) 
* one DA Form 1059 (Service School Academic Evaluation Report)
* his DA Form 4037 (Officer Record Brief (ORB))
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with DD Form 214c (continuation sheet)
* a DASA (RB) memorandum, subject: Officer Elimination Case (for the Applicant)  

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) on 21 April 1994.  He was awarded military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer) and he was promoted to the rank/grade of SFC/E-7 prior to being appointed as a commissioned officer in the RA.

2.  He was appointed in the RA in the rank of second lieutenant effective 
27 January 2005, as a 92Z (Quartermaster Officer) in the Logistics Corps.  He was promoted to CPT/O-3 on 1 September 2008.

3.  His record contains General Court-Martial Order Number 12, dated 1 October 2008, which shows he was convicted of wrongfully having an inappropriate relationship with Mrs. H.B., the wife of Sergeant S.B. of the 108th Quartermaster 
Company, between on or about 8 September 2006 and 10 February 2007, while the commander of the 108th Quartermaster Company Rear Detachment.  His conduct was considered unbecoming of an officer and gentlemen.  On 1 April 2008, he was reprimanded and his sentence was approved and directed to be executed.  

4.  On 15 August 2013, a Board of Inquiry recommended that he be involuntarily eliminated from the U.S. Army based on misconduct and moral or professional dereliction with a general (under honorable conditions) characterization of service.  

5.  On 28 March 2014, the Department of the Army Board of Review for Eliminations recommended he be involuntarily eliminated from the U.S. Army based on misconduct and moral or professional dereliction in accordance with Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), paragraph 
4-2b, with an honorable characterization of service, which by operation of law converted to a retirement in lieu of elimination. 

6.  Along with the elimination, the applicant's case file was sent to an Army Grade Determination Review Board (AGDRB) under provisions of AR 15-80 (AGDRB and Grade Determinations).  On 4 April 2014, the DASA (RB) approved the Board of Review's recommendation.  The DASA (RB) also determined, in accordance with Title 10, United States Code (10 USC), section 3911, he would be placed on the Retired List in his highest enlisted grade, E-7 (SFC).  For purposes of calculation of retired pay under the provisions of 10 USC, section 1407 (f), the highest grade in which he satisfactorily served was O-3E (CPT). 

7. Orders 133-1311, issued by Headquarters, U.S. Army Training Center, Fort Jackson, SC, dated 13 May 2014, authorized his release from active duty effective 31 July 2014, and placement on the retired list in the rank of SFC.  His DD Form 214 confirms he was honorably retired by reason of sufficient service for retirement in accordance with AR 600-8-24, paragraph 6-13 c (1), in the rank/grade of CPT/O-3 completing 9 years, 6 months and 4 days as a commissioned officer.  Item 8 (Remarks) contains the entry "Retired List Grade SFC." 

8.  The applicant provides an MFR, dated 30 April 2014, that discusses his military career and in which he requests to be retired in the rank of CPT.  He also provides five OERs, a DA Form 1059, and a copy of his ORB.    

9.  He also provides a memorandum addressed to the Office of the Assistant Secretary, Manpower and Reserve Affairs, dated 10 May 2014, from CPT B.W., who was his defense counsel before retirement, which requests an exception to policy of the requirement to serve 10 years as an officer in order to retire as an officer.  CPT B.W. cited that the law allows the Army to approve a retirement for an officer once the officer has 8 years of service.  He also stated the applicant has over 9 years and 4 months of service as an officer. 

10.  A memorandum issued by the Secretary of the Army, dated 17 June 2014, subject: Army Directive 2014-17 (Authority to Reduce Minimum Commissioned Service for Voluntary Retirement as an Officer) stated the following:

     a.  To support efforts to correctly size and balance the Army officer force during this period of drawdown, and under authority granted in 10 USC, section 3911(b)(1), the minimum years of active commissioned service required for voluntary retirement as a commissioned officer under this provision is reduced from 10 to 8 years.  This decrease in the minimum years of active commissioned service also applies to requests for retirement under the temporary early retirement authority.

     b.  The retirement approval authorities specified in Army Regulation 600-8-24 are delegated authority to approve requests on my behalf for officers with at least 8 years of active commissioned service who are otherwise eligible for voluntary retirement.

     c.  This policy is effective immediately and will expire on 30 September 2018, unless earlier rescinded.  Accordingly, any officer whose retirement is approved under this authority must be placed on the retired list no later than 1 October 2018. 

11.  Army Regulation 15-80 (AGDRB and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army.  

   a.  Paragraph 2-4 (Grade Determination Considerations) states, in pertinent part, 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, 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:

          (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)  The 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.

     b.  Paragraph 2-5 (Unsatisfactory Service) states service in the highest rank/grade or an intermediate rank/grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the rank/grade in question was unsatisfactory.  One specific act of misconduct may or may not form the basis for a determination that the overall service in that rank/grade was unsatisfactory, regardless of the period of time served in the rank/grade.

     c.  If a Soldier, retiree, or other former Soldier believes an error or injustice has occurred with respect to his or her rank/grade determination, the individual can apply to the Army Board for Correction of Military Records (ABCMR).  Army Regulation 15-185 (ABCMR) sets forth procedures for petitioning the ABCMR for relief.

12.  Title 10, USC, section 3911, states the Secretary of the Army may, upon the officer's request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of service computed under section 3926 of this title, at least 10 years of which have been active service as a commissioned officer.   It further states that the Secretary of Defense may authorize the Secretary of the Army, during the period specified as beginning on 7 January 2011 and ending on 30 September 2018, to reduce the requirement under this section for at least 
10 years of active service as a commissioned officer to a period (determined by the Secretary of the Army) of not less than 8 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reversal of the DASA (RB) decision to place him on the Retired List in the rank/grade of SFC/E-7 and allow him to retire in the rank of CPT/O-3 was carefully considered and appears to have merit.  

2.  The evidence of record shows he was convicted by a general court-martial for wrongfully having an inappropriate relationship with a married woman, which is conduct unbecoming an officer and a gentlemen.  A Board of Inquiry recommended that he be involuntarily eliminated from the U.S. Army based on misconduct and moral or professional dereliction with a general characterization of service.  

3.  On 28 March 2014, the Department of the Army Board of Review for Eliminations recommended he be involuntarily eliminated from the U.S. Army based on misconduct and moral or professional dereliction in accordance with AR 600-8-24, paragraph 4-2b, with an honorable characterization of service, which by operation of law converted to a retirement in lieu of elimination. 

4. On 4 April 2014, the DASA (RB) approved the Board of Review's recommendations and directed that in accordance with 10 USC, section 3911, he would be placed on the Retired List in his highest enlisted grade of SFC/E-7.  For purposes of calculation of retired pay under the provisions of 10 U.S.C, section 1407 (f), the highest rank/grade he satisfactorily served in was CPT/O-3E. 

5.  He desires to be placed on the Retired List in the rank of CPT as an exception to policy, due to the fact he served 9 years and 6 months as a CPT and the law allows the Army to approve a retirement for an officer once the officer has
8 years of service.  

6.  On 17 June 2014, the Secretary of the Army, by policy under the provisions of 10 USC, section 3911 (b)(1), lowered the required years of commissioned service from 10 to 8 years.  

7.  At the time of the DASA (RB) decision, on 4 April 2014, the policy still required officers to serve 10 years of active Federal service in order to retire as an officer in accordance with 10 USC, section 3911.  He had 9 years, 6 months and 
4 days of service as an officer.  However, he was not retired until 31 July 2014.

8.  Therefore, based on the change in policy and as a matter of equity and fairness, he is entitled to be retired in the rank/grade of CPT/O-3.  








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:

* amending Orders 133-1311, dated 13 May 2014, to place him on the retired list in the rank of CPT
* deleting "RETIRED LIST GRADE SFC" from item 18 (Remarks) of his 
DD Form 214



      _________ _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)                                         AR20120011941



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ABCMR Record of Proceedings (cont)                                         AR20140015392



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