RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            13 April 2006
      DOCKET NUMBER:   AR20050008481


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. Qawly A. Sabree               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his retirement grade be
corrected to captain/0-3 (CPT/0-3).

2.  The applicant states, in effect, he was awarded a retirement grade of
first lieutenant/0-2(1LT/0-2), which erroneously indicates his service as a
CPT/0-3 was not satisfactory.  He requests that the record be corrected to
award him a retirement grade of CPT/0-3.  He claims his service as a CPT/0-
3 was sufficiently satisfactory to warrant his promotion to major/0-4
(MAJ/0-4).  He further states the proper military authorities promoted him
to MAJ/0-4, and did so with a complete record and full knowledge of his
service as a CPT/0-3.  He states that the misconduct that resulted in his
court-martial occurred only when he was a MAJ/0-4, and he believes he
served satisfactorily for purposes of retirement in the grade of CPT/0-3.

3.  The applicant provides the following documents in support of his
application:  CPT/0-3 Officer Evaluation Reports (OERs); Officer Advance
Course, Academic Evaluation Report (AER); 4 Recommendations for Awards (DA
Forms 638); and Major Promotion Certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that on 28 March 2002, while he was
serving as a MAJ/0-4, a general court-martial (GCM) found him guilty,
pursuant to his pleas, of sodomy, indecent acts with a child under the age
of 16, and adultery.

2.  The sentence imposed by the GCM included confinement for five months
and to be dismissed from the service.  The military judge recommended that
the GCM Convening Authority (GCMCA) suspend the adjudged dismissal on the
condition the applicant submit a request for retirement and subsequently
retire from the service at the earliest possible time.

3.  In Headquarters, Defense Language Institute Foreign Language Center and
Presidio of Monterey, California, GCM Order Number 1, dated 19 August 2002,
the GCMCA approved the sentence and directed that except for the portion
that extended to dismissal, that it be executed.  The GCMCA suspended the
dismissal portion of the sentence, provided the applicant submitted a
request for retirement within ten working days of receipt of this court-
martial action, and the request was approved by the Secretary of the Army
or his designee.

4.  On 26 August 2002, the GCMCA submitted a memorandum to the commanding
general (CG), United States Army Personnel Command (PERSCOM), in which he
submitted information for consideration regarding the pending retirement of
the applicant.  The GCMCA indicated that subsequent to the applicant’s GCM
conviction, which authorized dismissal, he took action to suspend that
portion of the sentence contingent on the applicant retiring as soon as
possible.  He also indicated that he took the action exclusively for the
long-term benefit of the applicant’s family.  He further indicated that his
action was not intended to support the applicant’s retirement in his
current rank, and he submitted matters for consideration in determining the
applicant’s appropriate retirement grade.

5.  On 31 October 2002, the PERSCOM Chief, Officer Retirements and
Separations Section, submitted the applicant’s retirement packet to the
Army Grade Determination Review Board (AGDRB) and requested it evaluate the
applicant’s file to determine the highest grade in which he satisfactorily
served for retirement purposes.

6.  The AGDRB reviewed the applicant’s records and concluded the highest
grade in which he satisfactorily served was first lieutenant/0-2 (1LT/0-2)
and it recommended he be retired in that grade.  The AGDRB cited the
applicant’s record of misconduct as a CPT/0-3 and as a MAJ/0-4 as
justification for its recommendation.  The applicant’s misconduct as a
CPT/0-3 included the following incidents on the dates indicated:  7 May
1991, inappropriate behavior while intoxicated; 4 July 1991, detainment by
civil authorities for suspicion of driving while intoxicated (DWI),
concealing a weapon, and providing alcohol to a minor; 30 September 1991,
General Officer Memorandum of Reprimand (GOMOR); and 25 December 1991,
assault on a male enlisted Soldier and conduct unbecoming an officer with a
female enlisted Soldier.

7.  On 15 January 2003, the Deputy Assistant Secretary (DASA), Army Review
Boards, directed the applicant be retired in the grade of 1LT/0-2 if his
retirement was approved.

8.  On 24 January 2003, PERSCOM Orders Number S9-1 directed the applicant’s
release from active duty (REFRAD) on 31 January 2003, and his placement on
the Retired List, in the grade of 1LT/0-2, on 1 February 2003.

9.  On 31 January 2003, the applicant was honorably REFRAD under the
provisions of paragraph 4-2a and paragraph 6-17d, Army Regulation 600-8-24,
by reason of unacceptable behavior.  The DD Form 214 he was issued shows he
completed a total of 20 years, 8 months, and 10 days of active military
service at the time.

10.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes
the policy and procedures for officer separations and discharges.
Paragraph 4-2 (Reasons for Elimination) provides the reasons for initiating
elimination action.  It states, in pertinent part, that elimination action
may be or will be initiated for misconduct.

11.  Paragraph 6-17 (Voluntary retirement in lieu of mandatory retirement
or in conjunction with the scheduled Release From Active Duty) of the
officer separations regulation states, in pertinent part, that when an
officer elects to retire when elimination action involved misconduct or
moral or professional dereliction the CG, Human Resources Command (HRC),
formerly known as PERSCOM, will forward the retirement application and
memorandum of notification for elimination with all supporting
documentation to the AGDRB, which will make recommendation as to the
highest grade that the officer has served on active duty satisfactorily.

12.  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 (SA).  Chapter 4 contains guidance on officer
personnel grade determinations.  It states, in pertinent part, that 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 SA, or the Secretary's
designee.  For officers below the grade of brigadier general, the AGDRB
will recommend to the DASA, Army Review Boards, for final determination,
the highest grade in which an officer has served satisfactorily for
purposes of service/physical disability retirement, computation of retired
pay, or separation for physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been placed on the
Retired List as a CPT/0-3, because his service in that grade was
satisfactory, and the supporting documents he submitted were carefully
considered.  However, there is insufficient evidence to support this claim.


2.  The evidence of record confirms the applicant’s grade determination was
accomplished in accordance with the applicable regulations.  All
requirements of law and regulation were met and his rights were fully
protected throughout the grade determination process.

3.  The AGDRB found that in addition to the GCM conviction that resulted
from his misconduct as a MAJ/0-4, he also had an extensive disciplinary
history as a CPT/0-3.  This included the following:  7 May 1991,
inappropriate behavior while intoxicated; 4 July 1991, detainment by civil
authorities for suspicion of driving while intoxicated (DWI), concealing a
weapon, and providing alcohol to a minor; 30 September 1991, GOMOR; and 25
December 1991, assault on a male enlisted Soldier and conduct unbecoming an
officer with a female enlisted Soldier.

4.  Notwithstanding the applicant’s excellent duty performance as a CPT/0-
3, as evidenced by his OERs in that grade, his extensive history of
inappropriate behavior as both a CPT/0-3 and MAJ/0-4 clearly rendered his
service in those grades unsatisfactory for retirement purposes.  Therefore,
it is concluded that his placement on the Retired List as a 1LT/0-2, as
recommended by the AGDRB, was appropriate.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RTD _  ___PHM_  __QAS__  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.




            ____Richard T. Dunbar ____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050008481                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/04/13                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2003/01/31                              |
|DISCHARGE AUTHORITY     |AR 600-8-24                             |
|DISCHARGE REASON        |Unacceptable Conduct                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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