BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140015781 


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 retirement in the grade of lieutenant colonel (O-5), the highest grade he satisfactorily held, and a personal appearance before the Board. 

2.  The applicant states:

	a.  It is his belief that the Deputy Assistant Secretary of the Army (DASA) Review Boards determined he was not successful at the rank of lieutenant colonel without having all necessary documentation.

	b.  It is also his belief that the DASA Review Boards did not take into account the overwhelming evidence of successful performance before, during, and after the issuance of a General Officer Memorandum of Reprimand (GOMOR).

	c.  His Officer Evaluation Reports (OERs) clearly demonstrate successful performance.

	d.  It is his belief that the Army Grade Determination Review Board (ADGRB) did not have access to his final OER as it had not posted in the interactive Personnel Electronic Records Management System (iPERMS) as of the date that the DASA Review Boards rendered the decision to retire him as a major (O-4).

	e.  He did send via email all of his OERs, his board response, and notification that he had been put in to receive an impact Meritorious Service Medal for outstanding performance as the Director of the Disability Evaluation Board System at Fort Hood, Texas.

	f.  He did not receive any official correspondence of the AGDRB's decision as he had to contact the board's paralegal to receive the determination.

	g.  When he inquired as to what the board weighed their decision on to have him retire as a major instead of a lieutenant colonel, the paralegal told him and his legal representative that it is not the policy for the board to give such feedback.

	h.  He has supported this great Army since age 17 to include 3 tours in Iraq.  He is retiring from the Army with post-traumatic stress disorder, sleep apnea, and many other physical disabilities, but this is one decision he cannot support.

3.  The applicant provides:

* Orders 223-0181, dated 11 August 2014
* Memorandum for Army Review Boards Agency (ARBA), Army Board for Correction of Military Records (ABCMR), dated 15 August 2014
* Memorandum for AGDRB, dated 15 June 2014
* eleven of his OERs dated from 30 April 2005 through 28 September 2013
* referred OER dated 25 June 2014
* Service School Academic Evaluation Report, dated 21 April 2010
* Permanent Order 163-02, dated 16 May 2014
* Recommendation for Award of the Meritorious Service Medal (Second Oak Leaf Cluster), dated 3 July 2014
* GOMOR filing Recommendation, dated 28 October 2013
* Officer Record Brief
* email communications between ARBA officials, Army Officials, and himself

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the Army National Guard and upon his completion in the Reserve Officer’s Training Corps (ROTC), Orders 126-51-A-687 were published ordering the applicant to active duty effective upon his acceptance of an appointment in the U.S. Army Reserve.

2.  The applicant accepted an appointment as a Reserve commissioned officer on 20 May 1995, in the rank of second lieutenant.  He was promoted to first lieutenant on 11 August 1997, captain on 1 September 1999, major on 1 September 2005, and to lieutenant colonel on 1 February 2012.

3.  On 24 July 2013, an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) was initiated and an investigating officer (IO) was appointed to investigate allegations that the applicant (Chief of the Patient Administration Division) engaged in an inappropriate sexual relationship with a woman who was not his wife.  The investigation included allegations that the applicant used his official position for his personal benefit and violated federal copyright laws.

4.  The Report of Proceedings by the IO shows he completed his investigation on 22 August 2013 and through evidence and witnesses found the following:

	a.  The applicant had an inappropriate sexual relationship with a woman not his legal spouse in violation of the Uniform Code of Military Justice (UCMJ).

	b.  The applicant was married to another woman.

	c.  The applicant did not misrepresent his marital status.  He made it known to multiple parties that although he was still married, he was pending a divorce.

	d.  The applicant did have a sexual and otherwise inappropriate relationship with a woman not his wife between 8 June and 16 June 2013.  While the applicant denied having a physical relation with the woman, he admitted to an inappropriate telephonic relationship.  The relationship began on approximately 8 June and ended on 16 July 2013.

	e.  The applicant did stay with the woman in her home from 9 July through 
14 July 2013.  He made it known to multiple parties during this time that although he was still married he was pending a divorce.  Even though neither the woman nor her sister provided sworn statements, the telephonic interviews they provided to the investigator reflect that he slept in the same room with and had sexual intercourse with the woman.  They were observed kissing and hugging.  Another Soldier's sworn statement reflects that he admitted he had slept with and had sex with the same woman.

	f.  The applicant did not use his official position for personal benefit.  There was insufficient evidence to conclude he used his position to assist the woman.  Both the applicant and the woman entered into their relationship consensually.

	g.  There was no copyright infringement by the applicant.  The evidence reflected that there was intent to copy a workout DVD, but there was insufficient evidence to conclude a copyright infringement actually occurred as there is no concrete evidence a copied DVD was actually made.  Additionally, all witnesses varied on who wanted the DVD to be copied.
5.  The IO recommended:

	a.  Release of the ROI to the general courts-martial convening authority for review and action.

	b.  Consideration be given for adverse disciplinary action against the applicant (criminal and/or administrative) for his conduct with regard to the inappropriate relationship with a woman while married to another.

	c.  A copy of the approved ROI be released to the applicant's rater and senior rater to assist them in their evaluation of the officer during the rating period.

6.  On 11 October 2013, the applicant received a GOMOR for engaging in an inappropriate relationship with a woman who was not his wife.  The GOMOR states he stayed at the woman's house for several days and they slept in the same room and that other individuals witnessed him and the woman kissing and hugging each other.  He admitted to another officer that he was sleeping with the woman.  He had exchanged telephone calls, text messages, and pictures with the woman, and as a field grade officer he should be embarrassed and ashamed of his behavior.

	a.  As a commissioned officer in the U.S. Army, he had a duty to act responsibly, to exercise mature judgment at all times, and to do what was right.

	b.  The U.S. Army had reposed a special trust and confidence in him when it bestowed upon him the privilege of being an officer and with that privilege came the responsibility to set a standard of professional conduct that Soldiers under him could follow.

	c.  He had failed in that responsibility and the incident cast grade doubt on his judgment and his future success as an officer and any future misconduct could result in far more serious consequences.

   d.  The GOMOR was administratively imposed under the provisions of Army Regulation 600-37 and not as punishment under the UCMJ.  The imposing official stated he was considering whether to direct that the reprimand be filed permanently in his Official Military Personnel File (OMPF); however, prior to making his filing decision he would consider any matters presented within 10 days of the date of the GOMOR.  

   e.  The applicant acknowledged receipt of the GOMOR and he elected to submit written matters within 10 days.

7.  The applicant's battalion and brigade commanders recommended that the GOMOR be filed in his OMPF.  On 21 October 2013, via email, the applicant elected not to submit any additional information for consideration.  On 7 November 2013, the imposing official directed placement of the GOMOR in the applicant's OMPF.

8.  On 24 December 2013, the applicant received a referred OER.  In Part IV – Performance Evaluation – Professionalism, in block a. (Army Values) the applicant's rater put an "X" in the "No" block relating to integrity.  In Part V – Performance and Potential Evaluation, he was rated "Satisfactory Performance, Promote."  In the comment section the rater stated "{The applicant] made a poor personal decision during this rating period negatively impacting his integrity."  He was rated as "Fully Qualified" by his senior rater and he was rated "Center of Mass" in the block pertaining to "Potential Compared with Officers Senior Rated in the Same Grade."

9.  On 19 February 2014, the applicant submitted a request for retirement.  On 17 July 2014, by email he was notified that the DASA Review Boards had reached a determination in his case.  He was told that his request for retirement had been approved and that he was to be placed on the Retired List in the rank of major (O-4).

10.  On 28 February 2015, the applicant was voluntarily retired due to obtaining sufficient service for retirement.  He was placed on the Retired List in the rank of major/pay grade O-4 on 1 March 2015.  He had completed 20 years, 2 months and 1 day of total active service and 26 years, 9 months, and 5 days for basic pay purposes.

11.  The applicant provides twelve of his OERs dated from April 2005 through June 2014 all showing that he was rated as "Center of Mass" or "Above Center of Mass" during these periods.  They also show that he was proficient in the performance of his assigned duties.  In addition, he submitted his approved award recommendation for the Meritorious Service Medal for the period from 30 October 2012 to 1 April 2013.  He was cited for meritorious achievement implementing and streamlining new procedures for the medical evaluation board process at his installation resulting in the reduction of man-day's for Soldiers.

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

	a.  Paragraph 2-2 states the AGDRB considers individual cases that are referred to it in accordance with this regulation.  The 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.  Paragraph 2-5c states service in the highest grade or an intermediate grade normally 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 the determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade.

	b.  Paragraph 4-1 states an officer is not automatically entitled to retire in the highest grade served on active duty.  Instead, an officer is retired in the highest grade served on active duty satisfactorily, as determined by the Secretary of the Army or the Secretary's designee.  For officers below the grade of brigadier general, the AGDRB will recommend to the DASA (Review Boards) for final determination the highest grade in which an officer has served satisfactorily for purposes of service/physical disability retirement.  The AGDRB recommendation is purely advisory, and the Secretary of the Army or the Secretary of the Army's designee is not bound by that recommendation.  

	c.  Paragraph 4-1d states all retirements, except for disability separations, involving officers who, since their last promotion, have been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry (except minor traffic infractions) will be forwarded to Assistant Secretary of the Army (ASA) Mobilization and Reserve Affairs (M&RA) for a grade determination, provided such information is reflected, or should be reflected by regulation, in the officer's OMPF.  Examples of such findings or conclusions include a memorandum of reprimand.  Even if the information described is not required to be filed in the officer's OMPF, the separation authority may forward any retirement that contains information deemed substantiated, adverse, and material to a determination of retired grade.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  

   a.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

   b.  Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions when it is deemed necessary.  The Director of the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  However, he did not satisfactorily hold the rank of lieutenant colonel.  He was promoted to lieutenant colonel on 1 February 2012.  In October 2013, he received a GOMOR for engaging in an inappropriate relationship with a woman who was not his wife, which also resulted in a referred OER.

3.  According to the applicable regulation, all retirements, except for disability separations, involving officers who, since their last promotion, have been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry (except minor traffic infractions) will be forwarded to ASA (M&RA) for a grade determination, provided such information is reflected, or should be reflected by regulation, in the officer's OMPF.  

4.  The regulation also states service in the highest grade or an intermediate grade normally 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 the determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade.

5.  The applicant's overall duty performance as shown in the OERs he provided has been considered.  However, duty performance alone is insufficient when determining satisfactory performance.  As indicated by his rater in the referred OER, he made a poor personal decision during that rating period which negatively impacted his integrity.  Both duty and personal performance are considered when determining satisfactory performance.

6.  The applicant has not shown an error or injustice in the actions taken by the Army in his case.  Further, there is insufficient evidence to support a conclusion that a formal hearing is necessary to serve the interest of justice in this case.  

7.  In view of the foregoing, his request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ____X____  __X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20140015781



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ABCMR Record of Proceedings (cont)                                         AR20140015781



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