Grade Determination Review / Retirement in Grade Determination
The final insult in the barrage of administrative actions levied against U.S. service members is the grade determination / retirement in grade determination.
Very few military attorneys advise their clients about the third order effects of administrative consequences of derogatory actions like referred evaluations and officially filed reprimands.
The most notable of those third order effects is known as a grade determination review (for Army and Air Force) and retirement in grade determination (for Navy, Marine, and Coast Guard). When retirement eligible service members put in their packets for military retirement, if their service record contains derogatory information, this will trigger a determination whether that member should be allowed to retire at the highest grade (rank) they have achieved during their service. Yes, you read that correctly. Retirement eligible officers and NCOs can face administrative reduction at retirement to the grade at which they “last honorably served.”
If there is any derogatory information in the official file at the time a person files their intention to retire from the military, this will trigger another action to decide the grade at which the member will retire. In media coverage on senior ranking Officer cases, you will sometimes here the press conflate this with reduction of rank as a result of a court-martial. Note: Officers cannot be reduced as part of a punishment at a court-martial. Only enlisted members can receive a reduction in rank as part of a punitive action from a criminal trial. Recall when General Sinclair was administratively reduced two grades at the time of his retirement. This was NOT a part of any sentence at his court-martial. This was as a result of a grade determination.
Standard
The standard is at what grade the person last “honorably served.” That determination is made final by the equivalent of Human Resources Command for the respective branch of service. There is substantial variation in the results that we see for any given person who faces grade determination.
When the branch is trying to make their assessment, they start off from the proposition that if the person, for example, received a letter of reprimand as an O-5 for conduct they were deemed to have engaged in as an O-5, the grade determination will lay out that branch expects the service member to provide compelling evidence why they should NOT be administratively reduced to O-4. This creates what we call a rebuttable presumption. The presumption is that if they were reprimanded for conduct as an O-5, that they last honorably served as an O-4.
Burden
The rebuttable presumption that is created as a result of the grade determination’s standard is to place the burden on the service member. That burden is to show why and how it is that they should be able to retire at their current or most senior rank for retirement purposes. This is significant because of the impact to retirement pay over the life of that person’s retirement.
Significance
The consequential fine to a military service member who does not successfully challenge this presumption to overcome the burden of demonstrating or justifying retirement at the highest rank achieved can be extreme.
Army Regulation 15-80
Army Regulation 15-80 governs Army grade determination reviews. AR 15-80 explains that there is only a right to respond in writing to attempt to justify why the member should get to retire at their current rank. Typically, there is only thirty (30) calendar days to respond. The member must demonstrate to the board that on the whole they served satisfactorily in the rank to merit retirement benefits at that particular rank.
Being reduced one, two or even more grades can mean the loss of hundreds of thousands of dollars over the life of the member’s retirement.
Notable Reduction
Perhaps the most notable occurrence of this powerful administrative measure in recent history was the administrative reduction of Brigadier General Jeffrey A. Sinclair.
In the case of General Sinclair, the New York Times reported that General Sinclair would receive $34,000.00 per year less in retirement pay as a result of his grade determination. General Sinclair was 51 years old in 2014. Average life expectancy of a man in 2021 was said to be 73 years old. If General Sinclair lives to be 73 years old, this will mean that he will lose more than $747,000.00 over the life of his retirement. And certainly, that number only increases if he lives past 73 years old.
What Matters
Navigating the labyrinth of grade determinations is pivotal. There are some factors that seem to weigh more heavily in favor of the service member in his fight to preserve his full retirement. Some of these factors exist as a matter of reality, and others can be massaged.
Factors that are Weighed
How long the officer served at a given rank satisfactorily can weigh in favor of keeping retirement at the highest rank achieved. Other considerations are the strength of the service during that grade. Servicemembers can assemble packets that include the highlights of their career, previous and recent evaluations during that grade, and support memoranda from others who observed their performance of service. There is a litany of other enclosures and attachments the member can and should include.
What seems to matter most to these grade determinations was the significance of the misconduct when compared to the number of years that person had already served in their highest grade and how long they served total at that rank. For example, if the misconduct that is annotated in the official record lasted only one day, that will matter more than if the misconduct occurred over several years. Was it one instance or was it a pattern?
Because time in grade seems to be one of the most significant factors, whether that member served for several more years in that grade after the misconduct also weighs heavily in the calculation. We encourage our clients to serve as many years as they can stomach after surviving administrative separation. This is because we know that grade determination is already on the horizon and as always, we are playing the long game with the client.
Another factor that can be highly impactful is the kind of misconduct. Candidly, if the allegations were of a sexual nature, this makes the battle that much harder when trying to retire at the highest rank achieved. From our experience, when sexual misconduct occurs, there is an increased chance that the response will not result in a “win” for the member.
Grade determinations also heavily evaluate what were the accomplishments of the member during the time they served in that same grade.
We have also seen success in packets that include memoranda and letters that attest to the person’s service and achievements in lower grades. For example, if we can collect documentation that people found this member was already serving at the O-5 level for many years as an O-4, this can be incredibly persuasive.
No Magic Formula
Despite our ability to track trends in the packets of our clients and for service members who go it alone, there is no magic formula. There is no tally sheet that will tell any person their odds for a successful outcome. Every case is unique, and every individual can leverage different factors and circumstances. What we find is the most prudent is when competent and experienced counsel can fairly apprise and evaluate what factors we can leverage and highlight for a given client.
Never Quit
Given how high profile General Sinclair’s case was, maybe the best packet in the world would not have moved the needle on his grade determination. We don’t know if he even tried.
Our collective best practices to anyone who knows they will be facing a grade determination is to never quit. Given the tremendous losses that can occur if you do nothing and are reduced administratively, everyone should present some packet in response. Doing nothing means you will lose tens of thousands of dollars per year and potentially hundreds of thousands of dollars over the life of a retirement.
Many feel thankful they are getting a retirement at all. We say, given what is at stake, why would you not try? Never quit.
Experience Matters
Since 2012, the Law Office of Jocelyn C Stewart Corp. has been assisting senior leaders in drafting, compiling support, and assembling packets to support retirement at the highest grade achieved. We have worked hard to enable many clients keep their full retirement. Contact the Firm for an assessment.
Realize that if you have derogatory information in your record, the only way to avoid grade determination is to remove the derogatory information before the determination is triggered. There is a way – we assist service members in applying to remove derogatory information. We understand what these boards are looking for, and we stand ready to do our best to preserve what your service has earned.