BOARD DATE: 26 October 2017 DOCKET NUMBER: AR20150017465 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ____x____ _x______ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 October 2017 DOCKET NUMBER: AR20150017465 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 26 October 2017 DOCKET NUMBER: AR20150017465 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 has multiple requests: a. correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his discharge (narrative reason for separation) was medical retirement based on post-traumatic stress disorder (PTSD) vice unacceptable conduct; b. removal of DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period 14 October 2009 to 9 December 2009 (referred to hereafter as the contested OER) from his official military personnel file (OMPF); c. reinstatement to active duty; and d. after removing the contested OER, promotion consideration to lieutenant colonel by a promotion board. 2. The applicant states: a. On 3 September 2014, the Secretary of Defense issued a memorandum requiring all cases be carefully considered before the Service Boards for Correction of Military Records (BCMR) for all former Service members issued under other than honorable conditions discharges who know claim PTSD as a mitigating factor in their behavior that led to their unfavorable discharge. This memorandum requires a comprehensive review of all materials and evidence provided by the former Service members. He believes this memorandum is applicable to his application. b. He should not have been involuntarily separated from the Army. He should have been medically boarded and/or retained, but not involuntarily separated. c. Following his return from Iraq in May 2008, he had right shoulder reconstructive surgery from an injury sustained down range and right foot surgery. During his recovery period, he was forced to undertake a permanent change of station (PCS) move from Honolulu, HI to Savannah, GA with his family. Despite his begging and pleading for more recovery time, the Army moved him. As he feared, he reinjured his right shoulder during this move. This led him into a severely decompensated state (emotionally) and physically he was in pain. He was also anxious and depressed. d. (Upon arrival at his new duty station) he was placed in a leadership position that he in no way, shape, or form, should have been placed because he was clearly in ill health. He felt betrayed by Army leadership. Instead of command support, he was the victim of hazing, bullying, and scorn by his senior leaders. Due to his ill health (PTSD, anxiety, depression, and rehabilitation from surgery) he was unable to perform his duties at the field grade officer level. e. As a result of the bullying, his depression and anxiety worsened significantly to where he became suicidal with a plan, means, desire, and intent. On 9 December 2008 he was hospitalized on an inpatient psychiatric ward at a civilian facility. He received a dual diagnosis of suicidality and relapse prevention as he had not only contemplated suicide, he contemplated drinking and using drugs again after nearly 10 years of being clean and sober. He was hospitalized for 21 days and then completed a 4-week intensive outpatient rehabilitation program at a civilian facility. f. On the day he completed his outpatient program, he was betrayed and traumatized again when he received the contested OER. He sought help, was hospitalized and as punishment he received the contested OER. He believes his raters bullied him into accepting the contested OER, a relief for cause OER. This contested OER led to his early dismissal (retirement) from in the U.S. Army. g. He had a stellar record prior to his illness and subsequent hospitalization. He is an Iraq combat veteran. Upon returning from Iraq (he PCSd), then after serving in his leadership position for 29 days in which there were no performance counseling, his career ended. His OERs from 2001 to December 2009 show he was an excellent performer. The only negative document in his record is the contested OER for a 29-day rating period. Subsequent OERs until his involuntary separation show a resumption to a high degree of performance. He tried to recover, but due to the constant bullying, badgering, and hazing he was doomed to fail. h. He states he has PTSD and describes multiple avoidance behaviors (avoids people, places and things due to anxiety, isolates himself, irritable). He states he has disturbed sleep with frequent awakenings. He describes waking up in a state of heightened awareness with severe anxiety symptoms. He contemplates using drugs and alcohol as a means to avoid his traumatic thoughts and feelings. He is hyper-vigilant and mistrustful of most people. He has marital problems and cannot hold down a fulltime job. He has avoided medical treatment for PTSD as it is too overwhelming and anxiety provoking. His physical vital signs are elevated and he has hypertension and tachycardia. He has affective instability (affective disorder – mood disorder) and major depression. He states he has been clean and sober for 15 years, but his experiences and the treatment he received from senior leaders' causes him to be at risk for relapsing into substance abuse. i. He was bullied by senior Army Nurse Corps (ANC) officers to the point where he developed gastrointestinal bleeding, poor sleep including nightmares, PTSD, depression, and generalized anxiety disorder. He should have been afforded a medical retirement vice involuntarily retired. 3. The applicant provides copies of: * four page personal statement (summarized above) * excerpts of medical records * Recovery Place of Savannah completion certificate for outpatient treatment, dated 16 February 2010 * DA Form 3349 (Physical Profile) dated 19 February 2010 * two Walter Reed Nation Military Medical Center Certificates of Good Moral Character, dated 22 February and 20 March 2013 * 19 OERS and the contested OER with attachments * DD Form 214 * 3 September 2014 Secretary of Defense Memorandum * Medical Narrative Summary, dated 6 November 2015 * an article titled "War on the Mind, Part 1: Nurses Deployed to Iraq and Afghanistan struggle with PTSD" * seven reference letters CONSIDERATION OF EVIDENCE: 1. With prior enlisted service in the U.S. Coast Guard, the applicant was appointed a Reserve commissioned officer of the U.S. Army Reserve (USAR) Nurse Corps in 1998. He converted to the Regular Army in 1999. He was promoted to major on 1 August 2007. 2. The applicant is board certified in Adult Psychiatric Mental Health Nursing serving in area of concentration (AOC) 66C. The applicant served in Iraq from 9 November 2008 to 4 April 2009 where he performed duties as a psychiatric nurse in a combat field hospital. Upon his redeployment, he was reassigned to Tripler Army Medical Center, HI, where he assumed supervisory duties as the night shift nurse supervisor of the post hospital. 3. The applicant’s Officer Record Brief shows on 28 October 2009 he completed a PCS move and was assigned to Fort Stewart, GA. He assumed the duties of officer-in-charge (OIC) of the Army hospital inpatient psychiatric unit. 4. The applicant provided evidence showing he was admitted to a civilian inpatient psychiatric facility on 10 December 2009. It appears he was discharged on 28 December 2009 with medications and referred to outpatient psychiatric treatment. There are no medical conditions noted on his discharge paperwork. 5. On 28 December 2009 the applicant received a temporary profile (DA Form 3349) for major depression with anxiety. His psychiatric rating was "3." The other five body systems were rated "1" meaning there were no other medical conditions that impaired his ability to perform his military and professional duties. He did receive authorization to perform modified aerobic conditioning activities and could conduct upper body weight training. The profiling official signed the DA Form 3349; however, there is no unit commander signature. 6. On 7 January 2010, the applicant received the contested OER, a relief for cause OER, covering one rated month for the period from 14 October to 9 December 2009. His duty title was OIC inpatient psychiatric unit. His rater and senior rater were senior field grade commissioned Army nurses assigned to the Army hospital at Fort Stewart, GA. The OER shows in: a. Part IId, an "X" is placed next to the question "This is a referred report, do you wish to make comments?" b. Part IVa (Performance Evaluation – Professionalism), the rater placed an "X" in the "No" block for "Duty: Fulfills professional, legal and moral obligations" and an "X" in the "Yes" blocks for the other 6 values. Additionally, in Part IVb (Leader Attributes/Skills/Actions), the rater placed an "X" in the "No" blocks for "Conceptual" and the "Decision-making, Motivating, Executing and Learning" leader attributes. c. Part Va (Performance and Potential Evaluation – Evaluate the Rated Officer's Performance During the Rating Period and His/her Potential for Promotion), the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block and entered the following comments in Part Vb (Comment on Specific Aspects of the Performance): [The applicant's] performance during this short rating period has been lack there of a field grade Army Nurse Corps officer. He consistently avoided and refused his role as Officer-in-Charge of the Inpatient Psychiatric Unit. [The applicant] without a doubt made it clear that he wanted no responsibilities and or accountability of this position. [The applicant] has failed to display dedication, leadership to his peers, subordinates, and the organization. He has clearly demonstrated a lack of potential for future professional positions of greater responsibility. d. Part Vc (Comment on Potential for Promotion), his rater stated, "No potential for promotion for this rating period." e. Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in "Do Not Promote," in Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) his senior rater indicated "Below Center of Mass-Retain," and in Part VIIc, his senior rater stated: As the OIC, Behavioral Health Unit, [the applicant] has shunned and actively run from any responsibility or accountability required of this position. [The applicant] has made it clear that he does not want any responsibility. I have lost confidence in his ability to lead others. He ranks at the bottom of my Major cohort. Do not consider for future military, civilian education. Support form not submitted. Under no circumstances should [the applicant] be promoted to Lieutenant Colonel. [The applicant] without a doubt, is ill prepared, and unwilling for promotion and reasonability. 7. On 14 January 2010 the applicant submitted a rebuttal statement. He stated he was only rated for 29 days. He had mitigating injuries and an illness which he incurred during this rating period requiring his hospitalization for 19 days. His illness significantly impaired his ability to perform his assigned duties giving the impression that he was not engaged, avoided responsibilities, and "actively running from duties." He states he was never counselled or advised he was not meeting expectations and responsibilities. He claims the contested OER was drafted while he was hospitalized with the intent to ruin his career. He received the contested OER on 6 January 2010 (after his hospitalization). He had requested a rehabilitative transfer from Head Nurse to Clinical Registered Nurse for health reasons. His medical team supported the rehabilitative transfer. He outlines how the contested OER is marred with multiple procedural, administrative and substantive errors. * no performance objectives were established and no support form was prepared * never was advised he was failing * he does not know the reasons for the referred OER * he was threatened with repercussions when he requested a rehabilitative transfer * he feels the contested OER is in retribution and retaliatory * he had advised his rater of his multiple health issues upon arrival and that his illnesses were interfering with his duty performance * he presents a chronology of events * he presents a list of administrative errors * he presents counter arguments to his rater and senior rater comments * he restates his deployment history, PCS instructions, medical conditions to include psychiatric illness as interfering with his duty performance 8. On 19 February 2010 the applicant was issued a second temporary profile wherein his psychiatric rating was increased to "2." The profile shows he was not referred to a medical evaluation board (MEB). 9. On 9 March 2010 the senior rater stated, "After fully reviewing the evaluation and the comments submitted by [the applicant], I believe that the rated officer cannot accept or perform positions of increased responsibility in the foreseeable future." 10. On 9 June 2010 the applicant appealed his contested OER to the U.S. Army Human Resources Command (HRC). He stated the contested OER has substantive inaccuracies: * he was ill * he was receiving all the health care necessary * he was hospitalized * he only had 29 days of rated time * the contested OER is in retribution * he provided his physical profiles to support his contentions * he stated "request this ridiculous relief for cause OER be removed from his record immediately" 11. On 17 September 2010 his appeal was returned without action by HRC due to insufficient evidence. He was advised he bore the burden of proof to show the errors within the contested OER. The HRC official stated allegations that a performance appraisal is not a realistic representation of performance and potential or that the rating officials' perceptions are in error, must be resolved by the Officer Special Review Board (OSRB). The Board's conclusion will be based on the available evidence. "Clear and convincing" evidence is the standard used in the adjudication of evaluation report appeals. This standard may be defined as the amount of proof that will produce, in the members of the OSRB, a firm belief or conviction as to the correctness of the appellant's challenge to a contested OER. Therefore, the appellant must clearly prove that the evaluation is inaccurate before relief will be granted. He was advised to follow the procedures of Army Regulation (AR) 623-3 (Evaluation Reporting System) to include requesting a Commander's Inquiry. 12. On 2 February and 18 February 2011, HRC again returned the applicant's contested OER appeal without action due to insufficient evidence. It was stated his appeal did not meet the criteria outlined in the regulation. It was suggested that he provide evidence to dispute the narrative comments in Parts V & VII of the contested OER. He was told relief-for-cause OERs only require a minimum of one rated day. He then applied to the Army Board for Correction of Military Records wherein he was advised by letter that he had failed to exhaust administrative remedies on lower jurisdictions. His application contesting his referred OER was returned with action. 13. On 27 February 2012 the applicant was notified by HRC, Health Services Division that he had to "show cause" for retention on active duty due to misconduct, moral or professional dereliction based on the contested OER. 14. On 27 February 2012, a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) was initiated by HRC. 15. On 24 April 2013 the applicant underwent a retirement physical. On his DD Form 2807-1 (Report of Medical History), he indicated he had reconstructive surgery on his right shoulder and foot, multiple issues with his lower extremities (heal spur, orthotics, and ankle pin), treatment for anxiety and polysubstance abuse, and hospitalization for behavioral health among other issues. He was examined by a medical doctor who completed DA Form 2808 (Report of Medical Examination). The summary of defects and diagnoses included among others shoulder surgery, heal spur and plantar faucitis, recurrent ankle sprains, hypertension, anxiety, depression and polysubstance abuse (onset year 2000). The applicant was qualified for service and no disqualifying conditions were noted. 16. On 1 May 2013 the applicant was notified that he was being recommended for elimination in accordance with AR 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b because of misconduct, moral or professional dereliction. 17. On 2 May 2013 he acknowledged receipt of the officer elimination memorandum and submitted a request to be released from active duty and placed on the retired list. He stated: I am familiar with AR 600-8-24, paragraph 6-22, and understand that if this application is accepted by the Secretary of the Army, it may not be withdrawn except for extreme compassionate reasons or for the definitely established convenience of the Government. 18. On 5 July 2013, the applicant's request for retirement in lieu of elimination was reviewed by the Army Grade Determination Review Board. The board determined the applicant should be placed on the Retired List in his current rank of major, pay grade of O-4. 19. On 11 July 2013, by memorandum the applicant was advised the Acting Deputy Assistant Secretary of the Army (Review Boards) (DASA-RB) approved his retirement request in lieu of elimination action. The DASA-RB directed the applicant's retirement be effective 30 September 2013 with separation program designator code RNC and an honorable characterization of service. He was to be placed on the Retired List effective 1 October 2013 in the grade of major. 20. The applicant retired effective 31 August 2014 with 20 years and 23 days of active duty service and 5 years, 3 months, and 24 days of inactive service. He was placed on the Retired List as a major the following day. His DD Form 214 shows his rank as major, pay grade O-4 with a date of rank of 1 August 2007. 21. In the development of this case an advisory opinion was obtained from the Army Review Boards Agency psychiatrist. a. The civilian medical documentation submitted by the applicant consists of a Medical Narrative Summary, dated 6 November 2015, written by the applicant himself who is a Board Certified Psychiatric Mental Health Nurse Practitioner. In this narrative summary, the applicant diagnoses himself with major depressive disorder, severe, without psychotic features, chronic; PTSD, chronic, severe (non-combat); and polysubstance dependence in sustained remission. The applicant identifies betrayal and bullying by his command as the traumatic stressors causing his PTSD. b. Review of the Department of Veterans Affairs (VA) electronic medical record (Joint Legacy Viewer) indicates the applicant is actively involved in receiving treatment at the VA. The VA found the applicant 50 percent service connected for major depressive disorder and 30 percent service connected for various orthopedic conditions for a total combined rating of 80 percent. c. The applicant's military electronic medical record (Armed Forces Health Longitudinal Technology Application (AHLTA)) was also reviewed. This record covers the time period from 23 August 2004 to 8 December 2016. (1) The first behavioral health note in AHLTA is dated 6 July 2009. The applicant's chief complaint was insomnia and he stated that, although he was in pain from various orthopedic problems, he was having difficulty finding time for treatment because he was in graduate school working on his second Master's degree as an Advanced Practice Nurse Practitioner. At this time the applicant was diagnosed with adjustment disorder with depressed mood. (2) On 7 December 2009, his condition was worsening with depressive and anxious symptoms. He was diagnosed with major depressive disorder, single episode, severe and was started on medication for depression and insomnia. (3) On 10 December 2009, he was voluntarily hospitalized at a civilian facility with the chief complaint of depression with suicidal ideation and fear of relapsing back to substance use. He was hospitalized from 10 December to 28 December 2009. Post hospital discharge, he continued his outpatient behavioral health visits and began an intensive outpatient program at a civilian location. (4) On 1 February 2010, his diagnosis was upgraded by his outpatient psychiatrist to major depressive disorder, single episode, moderate. He continued attending the intensive outpatient program and completed it successfully on 16 February 2010. His course of improvement continued. (5) On 22 February 2010, his outpatient psychiatrist further upgraded his diagnosis to major depressive disorder, single episode, mild. While engaged in outpatient treatment, he continued to work as a military psychiatric nurse and continued to attend graduate school. (6) On 27 April 2010, his outpatient psychiatrist upgraded his diagnosis to major depressive disorder, single episode, in remission. He continued to see his outpatient behavioral health providers until he was reassigned to Walter Reed Army Medical Center (WRAMC). (7) In a psychiatric progress note written on 13 July 2011, his outpatient psychiatrist states: Discussed the progress he [the applicant] has made here at FSGA [Ft. Stewart, Georgia] in the past two years including doing very well occupationally, personally, academically, [and] professionally. [Patient] will continue with current psych meds and dosages and follow up with [behavioral health] at WRAMC–Bethesda. He will also continue to be involved with AA/NA [Alcoholics Anonymous and Narcotics Anonymous], etc. (8) On 9 November 2011, he was seen by Behavioral Health at WRAMC for credentialing screening. At this time, his evaluating physician documents "Patient is stable, has a positive outlook and is managing his mental health through medication and support groups. There is no evidence that his functioning is compromised as a result of his psychiatric diagnosis." (9) On 21 November 2011, his primary care manager wrote a letter to the WRAMC Credentialing Committee in which she states the applicant's "symptoms of depression are in remission. I find him fit… and competent to practice as a Psychiatric Nurse Practitioner." (10) On 8 May 2013, during part two of his retirement physical examination, the applicant denied depression. (11) In summary, the applicant was diagnosed with a single episode of major depressive disorder while in the Army. His depressive episode initially presented as severe and required inpatient psychiatric hospitalization followed by intensive outpatient treatment. During this time, the applicant continued to work full time and successfully completed graduate school. (12) There is no indication in his record that the applicant failed to meet medical retention standards and a referral of his record for consideration of a military medical discharge/retirement is not warranted. 14. A copy of the advisory opinion was forwarded to the applicant. He replied as follows: I am impressed and agree with the very well written summary by the Army Review Boards Medical Advisor. This writer was thorough and accurate. They should be commended. This write up clearly shows that I was a high functioning Soldier. All my prior evaluations clearly show this. Then post-deployment to Iraq, I had an acute psychiatric crisis. It was during this acute psychiatric crisis that I received the referred negative Officer Evaluation Record (OER) unjustly from a bully within the command (COL Thomas C. ANC). They were mad that I was ill and not able to perform my duties. After this medical crisis resolved, and I was successfully rehabilitated, I again resumed functioning at a high level with academics, as a Soldier, and as a medical practitioner. I went on to receive wonderful OERs for excellent performance as a Psychiatric Mental Health Nurse Practitioner in the world's premier medical institution: Walter Reed National Military Medical Center, Bethesda. Thus, I was a stellar Soldier, I deployed to war, I had a crisis, I wasn't functioning well during this psychiatric crisis and a bully command member gave me the referred negative OER right in the middle of my crisis, the day I was released from the hospital in fact… This negative OER should be removed from my record. I never should have received it. I was in the command for 28 days after a permanent change of station (PCS) move when I was hospitalized. This negative OER was based on 28 days (sic) performance for which during this time I was in psychiatric crisis necessitating hospitalization. This negative OER was the direct cause for why I was involuntarily separated. I never should have been involuntarily separated. I was a good Soldier and excellent medical practitioner (stated in my subsequent OER's) providing a valuable service to service men and women. This negative OER unjustly in my record was also the direct cause for why I was passed over for promotion. So not only was I involuntarily separated, I was passed over for promotion all because a bully in my command negatively rated me in a 28 day period during time of illness. All my OERs preceding this and subsequent to this are excellent and indicate I should have been promoted. I hope the ABCMR can see this and understand why I am upset with those members in my command and the Army as a whole. I loved the Army and loved being a Soldier and providing healthcare to Soldiers. I can understand and agree with the Medical Advisors (sic) opinion that I met medical retention standards eventually. I did in fact receive excellent healthcare. I am grateful. Perhaps at the time of acute illness, a medical board could have been supported rather than eventual involuntary separation. That is where the injustice lies. I was passed over for promotion and involuntarily separated because of 1 negative referred OER that never should have been given, as I received it during my acute illness when I was at my worst, functioning at my worst. Thus I was forced to retire before I intended to, and at a lower rank than I should have achieved. I should have achieved the rank of Lieutenant Colonial (LTC) easily and retired as such, but with this bad OER in my record, I was passed over. I should have remained on active duty and retired at the rank of LTC. I'm not sure at this point what can be done. I don't think it is feasible or reasonable to reinstate me to active duty. Maybe I would have qualified for a medical board at the time of my acute illness, but then again, I successfully reattained my health and eventually met retention standards, so I'm not sure what can be done about that. However, I do think it is reasonable to ask the following: 1 – Remove the negative [contested] OER from his record. 2 – Have his DD Form 214 corrected with the term involuntary separation removed. 3 – Have his DD Form 214 corrected to show a different reason for separation. 4 – Present his record to the Army Grade Determination Review Board for promotion or advancement to LTC REFERENCES: 1. AR 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. It states the DA Forms 67-9 will be filed in the performance section of the OMPF. 2. AR 623-3 (Evaluation Reporting System), in effect at the time (August 2007), prescribed the policies for completing evaluation reports that support the Evaluation Reporting System. a. Paragraph 1-8 states an officer's performance of duty is an extremely important factor in determining a leader's potential. Duty performance is judged by how well a Soldier performs assigned tasks and how well each meets Army professional values uniquely established for each respective corps. b. Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms and counseling forms. Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades. c. Paragraph 1-11 (Commander’s/Commandant's Inquiry) states when it is brought to the attention of a commander that a report rendered by a subordinate or by a member of a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The commander's inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policies and procedures established by Headquarters, Department of the Army (HQDA), and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. The results of the Commander's Inquiry, however, may be provided to the rating chain and the rated Soldier at the appointing official’s discretion. d. Paragraph 3-39 states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. Requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored. An exception can granted only when the information that was unknown or unverified when the report was prepared is brought to light or verified and that the new information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was known. e. Paragraph 3-58 states a report is required when an officer is relieved for cause regardless of the rating period involved. The relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer failed in their performance of duty. In this regard, duty performance consists of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards that apply to conduct both on and off duty. The date of relief determines the through date of the report. The minimum time requirements for rating officials do not apply. f. Paragraph 6-8 states because evaluation reports are used for personnel management decisions, it is important to the Army and the rated individual that an erroneous report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. Substantive appeals will be submitted within 3 years of an OER THRU date. Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception. Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered. The likelihood of successfully appealing a report diminishes, as a rule, with the passage of time. Prompt submission is, therefore, recommended. g. Paragraph 6-11 states the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. For a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials or other documents from official sources. Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. The results of a Commander's or Commandant's Inquiry may provide support for an appeal request. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). 4. Chapter 4 of AR 635-40 contains guidance on processing through the PDES, which includes the convening of a MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. If the medical board determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board. The physical evaluation board evaluates all cases of physical disability equitably for the Soldier and the Army. It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 5. AR 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. a. Paragraph 3-31 (Disorders with psychotic features) the causes for referral to an MEB include diagnosed psychiatric conditions that fail to respond to treatment or restore the Soldier to full function with 1 year of onset of treatment. Mental disorders not secondary to intoxication, infections, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with social adjustment or with duty performance. b. Paragraph 3-32 (Mood disorders) the causes for referral to an MEB include persistent or recurrence of symptoms sufficient to require extended or recurrent hospitalization, limitations of duty or a duty protected environment or interfering with effective military performance. c. Paragraph 3-33 (Anxiety, somatoform or dissociative disorders) the causes for referral to an MEB include persistent or recurrence of symptoms requiring extended or recurrent hospitalization, limitations of duty or a duty protected environment or interfering with effective military performance. 6. AR 15-80 (Army Grade Determination Review Board) provides that a grade determination is an administrative decision to determine the appropriate retirement grade, retirement pay, or other separation pay. The "highest grade served on active duty" is the grade to which a Soldier was actually promoted and paid pursuant to a lawful promotion. This board does not have promotion authority rather it determines the highest grade satisfactorily held during the course of a military career. 7. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. 8. Army Directive 2014-28 (Requests to Upgrade Discharge by Veterans Claiming Post Traumatic Stress Disorder) directs that the Army Board for Correction of Military Records (ABCMR) consider all applications for upgrade of the character of service for all former Vietnam era Soldiers who are diagnosed with PTSD and are contending that this condition was a mitigating factor in the misconduct that led to their discharge. 9. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The American Psychiatric Association (APA) publishes the Diagnostic and Statistical Manual of Mental Disorders (DSM) and it provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 10. The DSM fifth revision (DSM-5) was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD includes a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 11. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD, the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct, which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period. 12. AR 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. Paragraph 1-10 states to be considered for promotion by a selection board, an officer must be on the active duty list on the day the board convenes. Officers under suspension of favorable personnel actions or in a nonpromotable status remain eligible for consideration. Promotion eligibility is determined by HQDA, Deputy Chief of Staff G-1 and approved by the Secretary of the Army. For centralized promotions, eligibility is based on an officer's date of rank and time in grade. 13. Army Regulation 635-8 (Separation Processing and Documents), chapter 5 establishes the standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear cut record of active duty service at the time of release from active duty, retirement, or discharge. a. For item 4 (Grade, Rate, or Rank), verify that active duty grade or rank and pay grade are accurate at time of separation from source documents such as orders or the Officer Record Brief. b. For item 23 (Type of Separation), verify from orders the type of separation. c. For item 24 (Characterization of Service), the correct entry is vital since it affects a Soldier’s eligibility for post-service benefits. Characterization or description of service is determined by the directive authorizing separation. d. For item 25 (Separation Authority), obtain correct entry from regulatory directives authorizing the separation. e. For item 28 (Narrative Reason for Separation) – is based on regulatory or other authority DISCUSSION: 1. With respect to correcting the applicant's DD Form 214 to show he was medically separated, the applicant received three physical profiles with each profile stating his medical condition was major depression with anxiety. None of these profiles recommended his referral to an MEB, the start point for possible medical separation. The psychiatrist who rendered an advisory opinion reviewed his record and determined there was no diagnosis of PTSD at the time of his hospitalization in 2009 or throughout his service. The psychiatrist opined the applicant was diagnosed with a single episode of major depressive disorder. In his rebuttal statement, the applicant acknowledged he regained his health prior to his involuntary separation. 2. With respect to removing the contested OER from his OMPF: a. By regulation, a referred OER is rendered when an officer is relieved for cause regardless of the rating period involved. Duty performance consists of the completion of assigned tasks in a competent manner and compliance at all times with accepted professional officer standards. b. There are time constraints for appealing a referred OER. In addition, the burden of proof rests with the officer who received the referred OER. The Army assumes an evaluation when filed is true and accurate and reflects the opinions of the rater and senior rater. The applicant's dissatisfaction with his referred report is noted. He attempts to defame his rater and senior rater by implying they were "bullies." He provides no statements from third party individuals who were aware of or witnessed the "bullying" actions of his superiors. c. It is noted the applicant served in Iraq, had surgery and then completed a HQDA directed PCS move. He was hospitalized for psychiatric treatment shortly after reporting to his new duty station. His referred OER describes his significant duties and responsibilities as an OIC of an inpatient psychiatric unit (military). He appears to have shunned his duties and responsibilities and apparently made it clear to his raters by not demonstrating sound judgment, critical thinking or moral reasoning during the period in question (one month). The applicant did not provide evidence to refute his raters' observations of his duty performance. d. There are limited exceptions when an OER can be altered. An exception can be granted only when the information that was unknown or unverified when the report was prepared is brought to light or verified and that the new information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was known. 3. With respect to removing the narrative reason for separation shown as "unacceptable conduct" on his 2014 DD Form 214, the applicant received a referred OER for unacceptable conduct due to misconduct, moral or professional dereliction. He received written notification of the Army's intent for him to "show cause" for possible elimination. In response to this notification, the applicant voluntarily submitted a request for retirement as he had sufficient service. The separation authority accepted his written request, and upon a determination by the Army Grade Determination Review Board, he was retired in the grade of major/O-4, the highest grade he satisfactorily held. In its decision the board took into consideration the applicant's entire service record to include his many favorable OERs and combat deployment. 4. With respect to promotion to lieutenant colonel, the applicant received a suspension of favorable personnel actions by HQDA. While under this suspension, he was only eligible for consideration by a promotion board provided he met the promotion board criteria established by HQDA. The applicant argues his service prior to his hospitalization and post hospitalization should be sufficient for a promotion board to favorably recommend him for promotion. In order to be considered for promotion an officer must be on the active duty list. As the applicant elected retirement in lieu of elimination, it appears he does not meet the criteria required for consideration by an active duty promotion board. While he suggests the Army Grade Determination Review Board has promotion authority, a review of the regulatory guidance shows this board only determines a Soldier's retirement grade or highest grade satisfactorily held. It is not a promotion board. 5. With respect to his request for reinstatement onto active duty, the applicant in his rebuttal statement to the medical advisory opinion acknowledged reinstatement to active duty probably would not be feasible. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017465 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017465 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2