ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 December 2019 DOCKET NUMBER: AR20170005837 APPLICANT REQUESTS: through counsel correction to his record as follows: * upgrade his bad conduct discharge (BCD) to an honorable discharge * reinstatement on the Temporary Disabled Retired List (TDRL) with back pay and allowances * if not placed on the TDRL, then separation pay * restoration to the rank/grade of sergeant first class/pay grade E-7 * in the alternative, restoration to the rank/grade of staff sergeant, the last rank/grade he satisfactorily held * issuance of a National Guard Bureau Form 22 (Report of Separation) or equivalent Army Reserve documentation reflecting an honorable separation or discharge * a personal appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s Statement * Exhibit 1 – DD Form 214 (Certificate of Release or Discharge from the Active Duty) for the period ending 31 July 2003 * Exhibit 2 – Memorandum subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 4 January 2012 * Exhibit 3 – Memorandum subject: Notification of Initiation of Adverse Personnel Action (FLAG) * Exhibit 4 – Orders 307-005, dated 2 November 2012 * Exhibit 5 – Memorandum subject: Involuntary Extension on Active Duty for [Applicant], dated 6 November 2012 * Exhibit 6 – Statement of Service, dated 6 August 2013 * Exhibit 7 – Memorandum subject: Request for Discharge In lieu of Trial by Court- Martial, Separation Under Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), Chapter 10 [Applicant] * Exhibit 8 – Memorandum subject: Recommendation of the Staff Judge Advocate, U.S. v. [Applicant] * Exhibit 9 – DD Form 2716-1 (Department of Defense – Certificate of Supervised Release), dated 5 June 2014 * Exhibit 10 – General Court-Martial Order Number 1 issued by U.S. Army Military District of Washington, dated 14 January 2014 * Exhibit 11 – DA Form 4187 (Personnel Action), dated 5 August 2014 * Exhibit 12 – United States Army Court of Criminal Appeals, dated 17 June 2015 * Exhibit 13 – United States Army Court of Criminal Appeals, Notice of Court- Martial Order Correction, dated 14 June 2015 * Exhibit 14 – DD Form 214 for the period ending 4 February 2016 * Exhibit 15 – Integrated Disability Evaluation System (IDES), Consolidated Narrative Summary, date of evaluation 28 February 2013 * Exhibit 16 – IDES Medical Evaluation Board (MEB) Narrative Summary * Exhibit 17 – DA Form 3947 (MEB Proceedings), dated 2 May 2012 * Exhibit 18 – Memorandum subject: MEB for [Applicant], dated 16 May 2012 * Exhibit 19 – Memorandum subject: [Applicant] General Internal Medicine, dated 18 May 2002 * Exhibit 20 – DA Form 3822 (Report of Mental Status Evaluation), dated 6 June 2012 * Exhibit 21 – Fort Belvoir Community Hospital Memorandum For Record, dated 7 June 2012 * Exhibit 22 – Department of Veterans Affairs (VA) Washington Regional Officer, subject: Early Estimate of [Applicant’s] VA Benefits * Exhibit 23 – VA Seattle Regional Office, Disability Evaluation System (DES) Proposed Rating * Exhibit 24 – DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings, date convened 8 September 2012 * Exhibit 25 – Fort Belvoir Community Hospital Letter of Support [Applicant], dated 27 January 2014 * Exhibit 26 – Fort Belvoir Community Hospital Letter of Support [Applicant], dated 12 March 2014 * Exhibit 27 – Excerpt from Applicant’s Medical Record Problem List, dated 6 February 2015 * Exhibit 28 – Letter from VA Psychologist, dated 1 March 2017 * Exhibit 29 – DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UMCJ), dated 4 March 2011 with allied documents * Exhibit 30 – DA Form 4856 (Developmental Counseling Form), dated 21 January 2011 * Exhibit 31 – DA Form 4856, dated 13 June 2012 * Exhibit 32 – DA Form 4856, dated 28 June 2012 * Exhibit 33 – Code of Virginia, section 18.2-57.2 (Assault and battery against a family or household member; penalty) * Exhibit 34 – Code of Virginia, section 18.2-11 (Punishment for conviction of misdemeanor) * Exhibit 35 – Code of Virginia, section 18-2-57.3 (Person charged with first offense of assault and battery against a family or household member may be placed on local community-based probation… discharge) * Exhibit 36 – Code of Virginia, section 18-2-365 (Adultery defined, penalty) * Exhibit 37 – Rockford Police Report [Applicant’s former spouse], dated 1 January 1991 * Exhibit 38 – Character Reference Letter from KM, dated 5 January 2017 * Exhibit 39 – Order of Support (Civil), Commonwealth of Virginia dated 1 March 2013 * Exhibit 40 – Juvenile and Domestic Relations District, Nineteenth Judicial District, Fairfax County, Virginia, Affidavit in Support of Show Cause Rule, dated 21 October 2014 * Exhibit 41 – Motion to Amend or Review Orders, dated 11 February 2013 * Exhibit 42 – Order of Transfer from Fairfax County to Prince William County, Virginia, dated 30 November 2015 * Exhibit 43 – General Registration Requirements for Fairfax County Public Schools, Eligibility for Enrollment * Exhibit 44 – School Board Policy 2202.7 Special Services * Exhibit 45 – Secretary of Defense Memorandum, Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests for Veterans Claiming PTSD, dated 3 September 2014 (aka Hagel Memorandum) * Exhibit 46 – Character Reference Letter from EOM, dated 9 September 2013 * Exhibit 47 – Character Reference Letter from Master Sergeant LW, dated 9 September 2013 * Exhibit 48 – Character Reference Letter from Major GJG, dated 11 October 2013 * Exhibit 49 – Character Reference Letter from GS, dated 5 September 2013 * Exhibit 50 – Character Reference Letter from AS, dated 4 September 2013 * Exhibit 51 – Character Reference Letter from KJ, dated 4 September 2013 FACTS: 1. The applicant’s attorney states, in effect, that the applicant attained the rank of SFC/pay grade E-7 as a member of the Army National Guard of the United States serving under the provisions of Title 10, U.S. Code in the Active Guard Reserve (AGR) program. He was convicted during a general court-martial for domestic violence offenses, adultery and dishonorably failing to pay debts. The court-martial sentenced him to 24 months' confinement, reduction to pay grade E-1, forfeiture of all pay and allowances, and a BCD. In June 2014, the Army Clemency and Parole Board granted the applicant parole and reduced his confinement sentence; however, it denied him clemency. At this time, the applicant through counsel is seeking clemency based on the following factors: a. He has PTSD due to combat action in Afghanistan during the period from 2002 to 2003. The applicant’s chain of command failed to take into consideration his PTSD diagnosis as a mitigating factor during his court-martial. b. The punishment imposed is grossly disproportionate to the offenses for which he was convicted. It is the opinion of counsel that the court-martial adjudged a sentence that was far more severe than warranted in light of the severity of the applicant’s conduct. He further opines the disproportionately harsh sentence has mutated into vengeance by the court. c. The applicant’s main accuser, his former wife, has a history of violence and a propensity for dishonesty herself. 2. Counsel restates the applicant’s multiple requests providing a brief explanation. a. They seek an upgrade of his BCD to an honorable discharge so he may receive Department of Veteran Affairs (VA) benefits including medical and educational benefits for the entire period of his military service. b. They seek reinstatement on the TDRL, effective the date of the Board’s decision or such other date as the Board deems just. They request back pay and allowances from the effective date of placement on the TDRL. Or should the Board deem it inexpedient to reinstate him on the TDRL or with an effective date exceeding the 5-year maximum period on the TDRL, they request he be paid separation pay as of 7 January 2013 as per his original TDRL orders. c. They seek restoration to the rank/grade of SFC/E-7, effective the date of his release from incarceration, or such other date as the Board deems just. In the alternative, if the Board does not restore his rank they request restoration to the rank/pay grade of SSG/E-6, the highest rank he successfully held prior to his conviction. d. They seek a National Guard Form (NGB) Form 22 or equivalent Army Reserve document, showing an honorable separation from the ARNGUS and/or the Army Reserve so that he may draw nonregular retired pay upon reaching the age of 60, or earlier if eligible pursuant to applicant law and policy. 3. Counsel presents the applicant’s chronology history with background information. a. The applicant deployed in support of Operation Enduring Freedom to Afghanistan from approximately 8 September 2002 to 31 July 2003. While there he experienced two traumatic events: a blast from a rocket propelled grenade or similar devise that exploded approximately 100 feet from him at a forward operating base and during a convoy operation in Kabul, he witnessed a vehicle carrying U.S Soldiers damaged from an improved explosive device. There were human casualties which required the applicant to participate in human remain recovery operations. Counsel asserts these two traumatic events psychologically injured the applicant. Both the Department of the Army (DA) through the Physical Disability Evaluation System (PDES) and the VA acknowledge he suffers from PTSD. (A review of his 2003 DD Form 214 shows he was not awarded the Combat Action Badge for either incident with enemy forces.) b. In 2006, the applicant’s father was diagnosed with a terminal illness. In 2007, his father passed away without sufficient funds to bury himself or provide for his wife. To bury his father, the applicant obtained a private loan from a third party in the amount of $10,000. During his father’s illness he made frequent trips from his duty assignment location in Arlington, Virginia to Wisconsin. c. In 2008, his mother was diagnosed with a terminal illness. He provided for her and assisted with her medical bills though separated by many miles. d. In 2010, he sought medical assistance (physical and psychological) from military medical sources in Arlington, Virginia and Fort Belvior, Virginia. e. On 4 January 2012, he received his Twenty Year Letter notifying him he was eligible to receive nonregular retired pay at age 60. f. On 28 January 2012, the Army Integrated Disability Evaluation System (IDES) issued a Consolidated Narrative Summary as part of his ongoing medical evaluation for fitness for duty. It was determined during the IDES process that the applicant suffered from PTSD and anxiety disorder, not otherwise specified and possibly Cushings Syndrome (tumor or excess growth (hyperplasia) of the pituitary gland). g. On 23 April 2012, the MEB issued its narrative summary confirming the diagnoses of PTSD and anxiety disorder, not otherwise specified. The narrative summary recommended the applicant’s PTSD be rated as medically acceptable because there were no change of duty notifications, nor duty limitations, or psychiatric hospitalizations. However, the medical condition of anxiety disorder, not otherwise specified recommendation was not medically acceptable. h. Also in 2012, the applicant informed his spouse he wanted to end their marriage due to numerous martial problems. i. On 2 May 2012, the applicant’s MEB convened determining he had 24 separate medical conditions or defects including PTSD and anxiety disorder, not otherwise specified. The MEB recommended the condition of PTSD should be found medically acceptable and not assigned a rating and the condition of anxiety disorder should be found medically unacceptable. These were the recommendations that were forwarded to the PEB. j. On 18 May 2012, his primary care provider wrote a letter to a brigadier general within the National Guard Bureau informing him the applicant was diagnosed with PTSD. k. In May 2012 the applicant’s spouse threated to "ruin his military career." l. While undergoing the IDES process, the applicant was flagged pending court- martial charges on 31 May 2012. m. On 6 June 2012 he underwent a command directed behavioral health assessment (to determine if he had the mental capacity to undergo court-martial proceedings). n. On 7 June 2012, a medical doctor wrote that the applicant "was diagnosed with this condition in 2003, and has not required duty limitations until recently; he has continued to advance in his career. This condition is still being evaluated and treated." o. In July 2012 the VA provided him with its assessment. He was rated 50 percent for PTSD also claimed as depression, anxiety, and memory loss. On 17 July 2012 the VA issued its input into the IDES applying the 50 percent rating for PTSD claimed as depression, anxiety and memory loss. p. On 9 September 2012, the informal PEB provided is assessment and issued its decision showing the applicant was fit for PTSD also claimed as depression, anxiety and memory loss. Further, "the PEB found this condition did not arise in a combat theater and was not caused by an instrumentality of war." Counsel states: We strongly challenge this finding. As documented in the Integrated Disability Evaluation System Consolidated Narrative Summary II, [the Applicant’s] PTSD arose as a result of enemy combat action in Afghanistan. This is further attested to by the VA, which stated is its Disability Evaluation System Proposed Rating that 'it is proposed to establish service connection of [PTSD].' This conclusion is supported by the [applicant’s] current mental health provider… at the VA. q. On 2 November 2012, Orders 307-0005 were published placing the applicant on the TDRL effective 7 January 2013. r. On 6 November 2012, the Commanding General, Military District of Washington ordered the applicant to remain on active duty involuntarily extending him for the purpose of adverse action under the provisions of the UCMJ. s. On 21 June 2013 the applicant was convicted by a court-martial for four charges comprising nine specifications and sentenced accordingly. t. On 16 October 2013 after the court-martial, the applicant’s request for discharge in lieu of court-martial was disapproved. u. On 12 March 2014, a medical doctor wrote on the applicant’s behalf stating he was the applicant’s medical provider. He said the applicant had medical diagnoses of PTSD, a sleep disorder, and an anxiety disorder. The medical doctor opined that the applicant’s medical diagnoses influenced his past behavior and most likely contributed to the social and behavioral problems he exhibited which led to his incarceration. v. On 5 June 2014 the applicant appealed to the Army Clemency and Parole Board who granted him parole, but not clemency. w. On 5 August 2014 he was released from confinement. x. On 12 November 2014 he was diagnosed with adjustment disorder. y. On 17 June 2015, the United States Army Court of Criminal Appeals overturned Charge 1 and its corresponding specifications on the grounds of insufficient evidence. They did not adjust the applicant’s sentence. z. On 4 February 2016 he was issued his DD Form 214 and discharged with a BCD. aa. A VA medical doctor stated he was treating the applicant for depression and PTSD. From the perspective of the VA, the applicant was being treated for combat-related mental health disorders. He stated that based on the applicant’s diagnoses it contributed to the applicant’s family problems and criminal behavior. 4. Counsel presents an argument stating the applicant’s military chain of command failed to address his mental illnesses especially the diagnosis of PTSD. In fact, counsel states at one point in the NGB the applicant worked directly for him. (Counsel is a retired colonel/pay grade O-6.) a. In 2011, counsel states the applicant’s personal and psychological problems began to manifest themselves at work. There was friction between the applicant and his superiors. b. In March 2011 the applicant accepted nonjudical punishment under the provisions of Article 15 of the UCMJ for being absent without authority. c. On 13 June 2011 he was counselled for tardiness and failing to properly coordinate appointments with his supervisor. d. On 28 June 2012 he was counselled for having lapsed car insurance. e. On 7 December 2012 he was counseled for failure to pay his debts (rent and child support). d. Counsel states he was never contacted by the applicant’s military chain of command when the applicant began to exhibit behavioral problems. To him, the applicant’s offenses were petty and should have been a red-flag to his military chain of command that something was amiss and that he was in a personal crisis. He claims the chain of command should have been constructive, compassionate and provide helpful intervention to assist the applicant through this difficult period. He claims the applicant’s military leadership was blind and their conduct toward the applicant was inexcusable. It was known by his military leaders that the applicant was undergoing the IDES process wherein he was suffering from various related mental illnesses. 5. It is now Department of Defense policy that those individuals who receive less than an honorable discharge should have their discharges reviewed especially if they have a diagnosis of combat-related PTSD. From the perspective of the Secretary of Defense, Secretary Hagel at the time, the boards should review discharge upgrades with liberal consideration. Counsel states the mitigating factors pertaining to the applicant’s conduct is his PTSD or related anxiety disorder, not otherwise specified. It was the applicant’s poor mental health that led to his multiple acts of misconduct. a. There is an assumption that PTSD may contribute towards a Soldier’s propensity toward misconduct. This is a common assumption and is supported by research and scientific literature. b. There is a 2010 study done of combat-deployed Marines from current operations. From research on Vietnam Veterans there is a close association between combat exposure and antisocial and high risk behavior. Further, "participation in violence during the Vietnam War was associated with a heightened risk of arrests and convictions." c. The researchers did find a correlation between combat experiences, PTSD and military misconduct. From their study, combat Veterans with PTSD or other behavioral health diagnoses have an elevated risk of misconduct. d. Further, PTSD has been shown to correlate to an increased risk of relationship deterioration including domestic violence. Counsel cites another study wherein those male Veterans with PTSD symptomology had different forms of aggressive behavior including violence toward their intimate partners; therefore, Veterans with PTSD have a higher elevation rate of aggression toward their families’ and others. In the applicant’s situation he exhibited aggressive behavior toward his child, under the age of 16, when he grabbed her chin with his hand as well as towards his spouse when he pushed her on the chest causing her to strike her head on a flight of stairs and when he grabbed her shoulders pushing her onto the sofa. From the perspective of counsel, these actions by the applicant are the result of a failed marriage and his illnesses. 6. Counsel then defines PTSD and restates the combat-related conditions that lead to the applicant’s diagnoses of two behavioral health disorders. 7. Counsel then addresses the applicant’s MEB and its decision to refer the applicant’s records to a PEB for anxiety disorder, not otherwise specified. The MEB addressed his PTSD in its narrative summary but found it was not an unfitting medical condition. Counsel discusses related behavioral health issues such as sleep disturbance, highly anxious with physiological arousal such as his heart rate increases when exposed to crowds, riding public transportation and public venues. It was reported he would become impatient with his spouse and child and was prone to hyperventilating. He was socially withdrawn, moody and quiet. 8. Counsel then addresses the VA decision wherein the proposed rating under the IDES was 50 percent for PTSD, also claimed as memory loss, depression and anxiety. He further expands his discussion by pointing out the applicant’s medical providers through the military health care system identified and were treating him for PTSD, sleep disturbance, and anxiety. Further, he underwent a command directed (military) behavioral health examination with the provider stating: [The applicant] presented with significant irritability, avoidance, and response to past traumatic events. He has superimposed acute anxiety which he related to untreated physical issues. I feel [the medical provider] these two issues are related and contributed to current impulsivity and mood dysregulation. 9. Counsel then presents his argument that the applicant’s court-martial punishment was unjust citing a "Theory of Punishment" presupposed from a United States Supreme Court decision in Hall v. Florida (134 S.Ct. 1986 (2014)). However, counsel argues the legitimate aims of punishment are based on three principal rationales: rehabilitation, deterrence and retribution. Counsel asserts the applicant’s court-martial punishment was excessively harsh under any rationale enunciated by the Supreme Court. He states, "A disproportionately harsh sentence dishonors the victim, discredits the Court that imposed it, and creates a new injustice." He claims that is what directly happened to the applicant. He claims there are three victims in the applicant’s court-martial – the United States Army, the former spouse, and the applicant’s daughter. a. He asserts many of the crimes committed are unique to the Army (under the UCMJ) and thus victimize the Army. He states that failing to register a firearm kept in government quarters, failure to pay a debt, maintaining insufficient funds in a checking account, adultery and cohabitation discredits the Army internally by undermining respect for the institution and its rules and by tarnishing its reputation in the public eye. Counsel argues there was no harm to the Army or its reputation, yet the court annihilated the applicant’s dignity and reputation by imposing such a harsh sentence during court- martial proceedings. Counsel claims the minor harm to the Army in comparison to the applicant’s desolation is an injustice. b. Counsel places the charges against the applicant in the context of the Commonwealth of Virginia laws. He claims the Commonwealth of Virginia also had a right to pursue adjudication before its courts. He argues there was only one charge – having an unregistered firearm on post that was purely a military offense which was dismissed on appeal. He argues if the Commonwealth of Virginia had handled the other offenses it would be a useful benchmark in evaluating the appropriateness of the punishment the Army imposed. He views this as a matter of equity that the Board should take into consideration the gap between the penalties that the applicant faced during his court-martial vice the Commonwealth of Virginia courts. (1) For domestic battery, the most serious punishment would be classified as a Class 1 misdemeanor under Virginia Code section 18.2-11 with the maximum penalty of confinement for not more than 12 months and a fine of not more than $2,500. As the applicant had no history of domestic battery, counsel surmised it is unlikely the applicant would have received the maximum penalty for a first offense nor would the Virginia courts have entered a conviction. (2) For adultery and cohabitation, the most serious punishment would be classified as a Class 4 misdemeanor under Virginia Code section 18-2-365 with a maximum penalty of $250. Counsel asserts the Commonwealth of Virginia would not take such a case to court. (3) For failure to pay a debt of $11,865 (he borrowed this money to bury his father), the Commonwealth of Virginia would have handled this before a tribunal which would not have adjudicated it as a criminal offense, but as a civil breach of contract. The applicable court would be either a General District Court or a Circuit Court. (4) For failing to maintain sufficient funds to cover his child support checks, the Commonwealth of Virginia would have adjudicated this offense in the Juvenile and Domestic Relations District Courts as a civil matter between two parties. The state court system only incarcerates a person for failure to pay child support in the most extreme cases. (5) By looking at the above offenses through the Commonwealth of Virginia codes it shows the applicant’s court-martial conviction is disproportionate and extreme resulting in an injustice and inequity. 10. Counsel then discredits the applicant’s former spouse by showing she had also domestically battered the applicant and a former spouse, EP, of hers. Counsel thinks it is only fair, just and equitable to take into account the creditability of the applicant’s former spouse, his primary accuser. Counsel provides exhibits attesting to her previous incidents recorded in 1997 and 1999. In each case she was verbally abusive toward others to include striking a victim. At one point she was heard to say she wanted "an open relationship" presumably so she could have extramarital affairs. Counsel also questions her honesty during proceedings in the Fairfax County Juvenile and Domestic Relations District Court. He goes into detail to show from his opinion of facts that she is a dishonest person and thus should not have been a reliable witness for the government during the applicant’s court-martial. He concludes by stating her testimony is not credible. 11. He returns to the principle of deterrence and rehabilitation. He argues that the applicant’s punishment is unjust because it is more than necessary to deter others in the military. From his point of view the applicant’s trial, imprisonment and subsequent supervised release is more than sufficient to serve the ends of rehabilitation. To him the question is how to best provide for the applicant’s rehabilitation and reintegration into society. The applicant’s court-martial sentence of reduction in rank, forfeiture of pay and retirement benefits and the BCD all pose an insuperable obstacle to the applicant’s road to recovery. By providing the relief requested, it would best serve the interests of justice by equipping the applicant with the ability to rejoin and function effectively in society. 12. The applicant’s military personnel record shows he served as a member of the Army National Guard (ARNG). He was promoted to the rank and grade of SFC/E-7 on 31 December 1995. 13. He was mobilized with his unit in support of operations in Afghanistan on 9 September 2002. He served in Afghanistan from 24 October 2002 to 17 April 2003. On 31 July 2003, he was demobilized and returned to his ARNG status. At the time of his release from active duty, he was issued a DD Form 214 recording this period of active duty and his deployment dates to Afghanistan. 14. The applicant received a DA Form 2166-8 (Noncommissioned (NCO) Evaluation Report (NCOER)) for the period of his deployment from October 2002 to April 2003 for a rated period of 7 months. He served as the Combined Joint Task Force Operations NCO in support of Operation Enduring Freedom (Afghanistan) where he monitored the operations of six major commands and over 10,000 Soldiers within the Joint Operations Center. He synchronized information from several digital and tactical operations networks maintaining and posting significant activities for the commanding general and his staff. He had no deficiencies noted on the NCOER and it was stated he treated all Soldiers with the utmost respect. Out of five values, he received four excellent ratings for his competence, leadership, training, and his responsibilities and accountability of personnel and equipment. He maintained a 95 percent or higher accuracy in battle reporting. He maintained an exceptional situational awareness and was constantly sought by his superiors for his demonstrated battle staff experience. His senior rater stated he was "the best battle NCO on the Combined/Joint staff in Afghanistan." His senior rater rated his overall performance as a "1" and also his overall potential for promotion and service in greater positions of authority was rated a "1," the highest rating. 15. As a member of the ARNG, he entered active duty in the AGR program on 1 July 2005. His duty station was the National Guard Bureau (NGB). 16. He continued to receive very favorable NCOERs including for the period from 1 December 2008 to 9 August 2009. During this period he served as a marketing NCO managing in excess of $10 million dollars of contracts at the NGB whose purpose was to market the National Guard program to prospective new recruits as well as maintain the current force strength. He had no noted deficiencies for Army values, attributes, skills or actions. His rater wrote he performed excellently in Army competence, physical fitness, responsibility and accountability. He received successful ratings for leadership and training. His rater stated he, "rehabilitated his body after receiving highly invasive surgery and was able to score a (sic) 270 points on the [Army Physical Fitness Test] on or about 4 April 2009." Further he received outstanding critiques for his programs and his execution of his programs. His senior rater rated him "Successful" with a rating of "2" out of "5." He also stated the applicant was "technically and tactfully proficient; discharges duties with complete professionalism." 17. On 10 January 2011, the applicant was counseled by his first sergeant for failing to report back in from leave on 6 January 2011. After involvement by the Fort Belvoir police on 7 January 2011, he then contacted his chain of command. He further was counseled because he did not return his unit leadership's telephone calls on 6 January 2011. He was advised a senior sergeant major (SGM) would review his case. His NCO first line supervisor recommended imposition of nonjudicial punishment and removal from the AGR program. The applicant did not sign this counseling statement. 18. On 21 January 2011 the applicant was counseled for violating Article 86, UCMJ for failing to report to work on 7 January 2011. He stated he had a medical appointment at 1500 hours that day, but failed to show up for work call at 0730 hours. Further on 10 January 2011, he had a morning appointment at 0815 hours and failed to report to work upon the conclusion of his medical appointment. On 12 January 2011 his appointment was at 1400 hours. He failed to report to work call before or after the appointment. He was counseled concerning his absences and failing to report to his supervisor at the appointed place and time. a. The DA Form 4856 records his counseling with the counselor stating, "You have failed to report to work on several occasions and even though you have an existing medical condition you have failed to keep your chain of command informed of your appointments." He was counseled by the unit first sergeant who, in turn, recommended the applicant receive nonjudicial punishment. He was further counseled he could be administratively separated under the provisions of Army Regulation 635-200, due to his substandard behavior. The applicant indicated before he signed the counseling form that he disagreed with it and provided a separate statement. b. He stated, "Since November… [he has] been seen by many doctors ranging from military to civilian doctors to identify [his] life threatening disorder. During some of these medical appointments [he] was given medication that alter[ed] [a] normal mindset." He was instructed by his medical providers to go home and rest. He acknowledged he had not kept his leadership informed and stated he would do better in the future. He concluded by saying he was looking forward to being healed so he could return to being a solid Soldier. 19. On 15 March 2011, the applicant accepted nonjudical punishment under the provisions of Article 15, UCMJ for on or about 6 January 2011, without authority absenting himself from his place of duty and did remain absent until on or about 7 January 2011 violating Article 86, UCMJ. He also failed to go to his appointed place of duty on or about 12 January 2011. He did not demand trail by court-martial and opted for a closed session. A field grade officer in the position of battalion commander sentenced him to forfeiture of $500.00 pay per month for 2 months, to be automatically remitted if not vacated before 12 October 2011. He did not appeal the nonjudicial punishment. 20. On 4 January 2012, the Wisconsin National Guard (WIARNG) issued the applicant his Twenty Year Letter notifying him he had completed the required years of service so as to be eligible for retired pay upon application at age 60 in accordance with Title 10, U.S. Code, chapter 1223. 21. On 31 May 2012, the applicant was notified he would be flagged (suspended from favorable personnel action). The applicant acknowledged receipt of the flagging action with his signature. 22. The applicant provided the following medical records which are not filed within his electronic military personnel record. On 28 February 2012 the applicant was medically evaluated under the provisions of the IDES. A narrative summary (NARSUM) was prepared showing he served on active duty and was assigned to the NGB. His chief complaints and history of present illness shows: * PTSD * Anxiety disorder, not otherwise specified * Abnormally elevated heart rate, unilateral adrenal tumor, elevated cortisol production, assessment of pituitary now pending for a possible consideration of Cushings' Syndrome * Cervical and lumbar back pain * Hearing loss and tinnitus (two hearing aids) a. The doctor’s synopsis stated the applicant had bouts of elevated heart rate, dangerously high spikes in blood pressure, and elevated cortisol measurements. He had undergone magnetic-resonance imaging (MRI) and brain scans which created physiologically and psychologically intense anxiety. He was receiving behavioral health treatment at a major military medical center on a weekly basis for calming therapy, without psychotropic medication. b. He was diagnosed with PTSD in May 2011 at a military stress clinic (stateside) and then his diagnosis was confirmed at a major military medical center. He did not seek treatment for PTSD from 2003 to early 2011. There is no medical documentation during that period showing he received behavioral health medical treatment. His PTSD symptoms intensified over the course of 2011 coinciding with the cardiovascular manifestations of his yet undiagnosed physiological disorder. c. He reported two traumatic events in Afghanistan in 2003. The first was in March 2003 at a market near a mosque. His vehicle was leading an escort mission into downtown Kabul. His escort mission (convoy) had stopped learning of an impending action by enemy forces. He tried to warn a Special Forces element that passed him, but without success. Shortly thereafter there was an explosion in the vicinity of the Special Forces element and in one military vehicle all were killed. He was part of the team that evacuated the human remains. He stated, "There was a lot of carnage and chaos." The second event occurred in April 2003 when a rocket propelled grenade exploded within 100 feet of the applicant. He was walking at a forward operating base when the impact of the explosion knocked him off his feet producing a concussion. He was "shocked and dazed" and received time off from duty for several days. d. He was evaluated for traumatic brain injury (TBI) based on his 2003 concussion. At the time, the writer of the NARSUM was pending results of a neuropsychological test. The neurobehavioral effects of TBI include irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility and impaired awareness of disability. e. He underwent a St. Louis University Mental Status Examination that showed no cognitive disorder. His judgment, insight, retentive, recent and remote memory functions showed no deficit on gross screening. f. His MRI completed in November 2011 showed stable non-specific hyperintense T2 signal white matter lesions. g. The medical doctor stated the applicant’s: anxiety disorder, [not otherwise specified] is not stable so long as his physiological disorder remains undiagnosed, untreated, or unstable. His prognosis is very good if and when the coinciding and interlinked condition producing elevated cortisol becomes resolved. Until then [he] fears sleep, fears stroke or [myocardial infarctions], and his symptoms of PTSD become exacerbated, as he is experiencing resulting loss of quality of life. h. The medical provider’s recommendation pertaining to profile and duty restrictions was a permanent two for the psychological factor (S2) for PTSD and a rating of permanent three (S3) was recommended for anxiety disorder which may improve substantially with resolution of his cardiovascular- endocrine condition. He found the condition of anxiety disorder, not otherwise specified as not medically acceptable under the provisions of Army Regulation 40-501 (Standards of Military Fitness) because he had panic attacks that resulted in poor concentration. The date of approximate origin is shown as 2010. He found the condition of PTSD was medically acceptable in accordance with Army Regulation 40-501. He was diagnosed in 2010 with PTSD with symptoms present from 2003 to the date of the NARSUM. He concluded by stating the applicant should be referred to the PEB for further disposition. 23. He provided an IDES MEB NARSUM (quality control review) showing he was referred to the MEB for exertional tachycardia (rapid heartbeat). His MEB diagnosis for anxiety disorder, not otherwise specified was found to be medically unacceptable under the provisions of Army Regulation 40-501. There were 23 medical conditions that meet retention standards. He had met the medical readiness decision point (MRDP) for his anxiety disorder in that his symptoms had persisted since 2010 exceeding 12 months with no indication this condition would meet medical retention standards. His physical profile of S3 for anxiety disorder restricted his assignments from austere environments and his PTSD rating of S2 required an assurance of not less than 8 hours sleep per night and restriction from noise. 24. On 2 May 2012, the MEB met and DA Form 3947 was completed as provided by the applicant through his counsel. After considering clinical records, laboratory findings, and physical examinations the board found the only unfitting condition was anxiety disorder, not otherwise specified in accordance with Army Regulation 40-501, paragraph 3-33b and c. All other medical conditions including PTSD were found to be medically acceptable. The MEB referred him to the PEB. The applicant initially did not agree with the MEB’s findings and recommendation, then on 21 June 2012 he annotated the DA Form 3947 with "N.A. [not applicable]." 25. The applicant requested an Independent Medical Review of the MEB, the medical doctor who was an MEB physician, prepared a memorandum for record. She stated she had reviewed all the documentation provided in the MEB packet and the applicant’s electronic medical records. She also conducted a personal interview with the applicant. She opined the applicant’s medical record contained excellent objective medical data regarding all his complaints and was sufficient for the purpose of the independent review. She advised the applicant, "That the findings of the MEB DO reflect the complete spectrum of illnesses and injuries." She then addressed multiple conditions including bilateral adrenal adenomas, mild left ventricular hypertrophy, lower spinal fracture and PTSD. For the condition of PTSD, she stated he had no duty limitations until recently and he had continued to advance in his military career. As he had not yet met his MRDP, he currently met acceptable medical standards of Army Regulation 40- 501 with an S2 psychological profile rating. 26. The applicant through counsel provided a memorandum from a nurse practitioner of general internal medicine, dated 18 May 2012, addressed to two colonels, two sergeant majors, and a brigadier general within the NGB. The nurse stated she was the primary care provider for the applicant. She wrote, "[The applicant] has been diagnosed with several medical conditions to include cardiac palpitations, tachycardia and labile blood pressure, adrenal mass, pituitary adenoma, anxiety, gastric reflux, hyperlipidemia, PTSD, and insomnia." During the past 2 years, he has seen many specialists to determine the etiology of his symptoms. At present the suspicion is he has an unusual presentation of multiple endocrine neoplasia. Due to the complexity of his case, he is receiving consultation and treatment at Johns Hopkins Endocrine Neoplasia subspecialty clinic. His family care manager expressed a medical necessity to have the applicant remain in the Military District of Washington for continued medical assessment and treatment. 27. On 6 June 2012, the applicant underwent a command direct behavioral health assessment. He, through counsel, provided the DA Form 3822 showing he required temporary duty limitations and would likely require behavioral health treatment to be restored to full duty. During the mental status evaluation he was found to be cognizant with no obvious impairments. He was cooperative, his perceptions were normal though he was occasionally impulsive. He showed he was easily frustrated. The medical provider determined he could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. His diagnoses were PTSD, anxiety disorder not otherwise specified, irregular heart rate/rhythm, pituitary adenoma, adrenal mass, gastric reflux, hyperlipidemia, and a history of unstable blood pressure. The medical provider informed the chain of command they should ensure the applicant made all medical appointments, assigned low-stress duties, have no leadership responsibilities, and his work day should not exceed 8 hours per day with 2 days off each week. He should be restricted from accessing weapons and ammunition. Further, he should have no contact with DS, his wife. Under supervision, he could have access to his 14 year old daughter. He had screened positive for PTSD and TBI. The medical provider concluded by stating the applicant required regular medical appointments with his behavioral health care providers and should be on limited duty for the next 60 to 90 days while he underwent the IDES process. Additionally, guidance was provided should the chain of command deem a sanity board was necessary from forensic services. 28. On or about 17 July 2012, the VA rendered an estimate of their proposed benefits pertaining to the applicant. The applicant through counsel provided his VA evidence. The VA states he was evaluated under IDES. The VA was responsible for assigning evaluations to his unfitting conditions for use by the Department of Defense (DoD) in determining a final disposition for unfit conditions. The PEB may adjust a VA disability rating. He was advised that entitlement to VA benefits was contingent upon his discharge from active duty to include the requisite character of discharge, as specified by law and regulations. If he lacks the requisite character of discharge, the rating is considered null and void for purposes of VA benefits. The VA proposed a 50 percent rating for PTSD also claimed as depression, anxiety and memory loss. (This is his only MEB unfitting condition.) There were numerous other medical conditions that were not unfitting, yet were rated by the VA as service-connected. The total combined rating for unfitting and service-connected disabilities was 90 percent. The VA rating decision, a separate document, stated a 50 percent evaluation was assigned for his PTSD which is the minimum evaluation for a mental disorder that develops in service as a result of a highly stressful event severe enough to bring about one’s release from active military service. 29. On 8 September 2012, an informal PEB convened at the National Capital Region and considered the MEB’s recommendation with applicable medical and personnel evidence. The informal PEB determined the applicant was physically unfit and recommended a rating of 50 percent for PTSD (also claimed as depression, anxiety, and memory loss). The DA Form 199 states, "Soldier developed anxiety symptoms in 2010. He experiences panic attacks with elevated heart rate and blood pressure. He has nightmares, frequent sweaty hands, reduced focus and hyper vigilant. This condition did not arise in a combat theater and was not caused by an instrumentality of war." 30. On 12 September 2012, the applicant concurred with the findings and waived a formal hearing of his case. He also did not request reconsideration of his VA findings and its recommendations. 31. On 2 November 2012, the U.S. Army Garrison, Fort Belvoir, Virginia issued Orders 307-0005 releasing the applicant from assignment and duty because of physical disability incurred while entitled to basic pay. He was placed on the TDRL effective 8 January 2013. His percentage of disability was 50 percent. His component at the time was ARNGUS AGR. 32. On 6 November 2012, the Commanding General of the U.S. Army Military District of Washington involuntarily and indefinitely extended the applicant on active duty under the provisions of Army Regulation 27-10 (Military Justice), paragraph 20-4; Army Regulation 135-200 (Active Duty for Training, Annual Training, and Active Duty for Special Work of Individual Soldiers), paragraph 7-4; and Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 1-22. 33. On 26 November 2012, Orders Number 331-0007 were issued revoking the orders placing him on the TDRL (Orders 307-0005). 34. On 21 June 2013, the applicant was tried by court-martial for multiple offenses under the UCMJ (as recorded in General Court-Martial Order Number 1, dated 14 January 2014 issued by Headquarters, U.S. Army Military District of Washington). (This proceeding will only address the charges and specifications wherein the court found him guilty.) His sentence included reduction to the grade of private/E-1, confinement for 24 months, and to be discharged from the service with a BCD. Further instructions state the automatic reduction to the grade of private/E-1 and the automatic forfeiture of all pay and allowances were deferred to 5 July 2013 with the pay being sent directly to his spouse and child. a. For the charge of violating Article 92, UCMJ, for wrongfully violating a lawful regulation to wit: Fort Belvior Regulation 190-2, paragraph 6(b)(1), dated 23 October 1998, by wrongfully having an unregistered weapon in his post residence. b. For the charge of violating Article 128, UCMJ: (1) Specification 2 – between 1 November 2011 and 30 November 2011 unlawfully grab the chin of a minor child with his hand. (2) Specification 3 – on or about 7 January 2012 unlawfully push DS on the chest with his hands causing her to strike her head on a flight of stairs. (3) Specification 5 – on or about 24 May 2012 unlawfully grab DS by the shoulders with his hands, force her on the couch, and hold her down with his knee. c. For the charge of violating Article 134, UCMJ: (1) Specification 1 – for being indebted to AA in the sum of $11,865.00 for a personal loan which became due and payable on or about 21 May 2008. (2) Specification 2 for wrongfully having sexual intercourse with SRO, a woman not his wife on diverse occasions between 1 January 2008 and on or about 1 January 2009… said conduct was of a nature to bring discredit upon the armed forces. (3) Specification 4 for wrongfully having sexual intercourse with TK, a woman not his wife on diverse occasions between 1 May 2009 and 31 October 2009… said conduct was of a nature to bring discredit upon the armed forces. d. Add to Charge I of Article 134 for wrongfully cohabitating with a woman, not his wife, from on or about 15 July 2012 to 5 March 2013… said conduct was of a nature to bring discredit upon the armed forces e. Add to Charge I of Article 134 for on diverse occasions make and utter to the Treasurer of Virginia worthless checks for the purpose of child support and for failing to maintain sufficient funds in his banking account for payment of said child support. 35. On 16 October 2013, the Commanding General of the U.S. Army Military District of Washington denied the applicant’s request for administrative separation under the provisions of chapter 10, Army Regulation 635-200 in lieu of court-martial. 36. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 37. The applicant appealed the general court-martial decision to the U.S. Army Court of Criminal Appeals. On 15 June 2015 a summary disposition was issued. a. A panel of officer members convicted the appellant, contrary to his pleas, of one specification of violating a lawful regulation, one specification of assault of a child under the age of 16 years, two specifications of assault consummated by a battery, three specifications of adultery, one specification of wrongful cohabitation, and one specification of dishonorably failing to pay a debt in violation of Articles 92, 128, and 134, UCMJ. The panel sentenced him to a BCD, confinement for 24 months, and reduction to the grade of E-1. The convening authority deferred the adjudged rank reduction and automatic forfeitures, approved the adjudged sentence, and waived the automatic forfeitures for a period of 6 months. b. One of the appellant’s assignments of error warrants discussion and relief. It was accepted that the government’s evidence was factually insufficient to sustain his conviction for violating Article 92, UCMJ. The government determined the judge did not instruct the court that he must have knowledge of the lawful order. Therefore, it was determined there was insufficient evidence to convict him of violating Article 92, UCMJ, and he was granted relief by setting aside the specific conviction for violating Article 92, UCMJ. c. Considering the entire record and the assigned errors, the findings of guilty of the specification of Charge 1 and Charge 1 were set aside. Thus, Charge 1 and its specifications were dismissed. The remaining findings of guilty and the sentence as approved by the convening authority were affirmed. d. Corrective orders were issued as of 17 June 2015. 38. On 9 December 2015, General Court-Martial Order Number 352 was issued by Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, Oklahoma where the applicant had served his sentence of confinement. These orders directed the execution of General Court-Martial Order Number 1 wherein the applicant was discharged with a BCD. (This is the order that discharged the applicant with a BCD.) 39. Orders 032-1333, dated 1 February 2016, issued at Fort Sill, Oklahoma reassigned the applicant to the U.S. Army transition point for final transition processing from the U.S. Army. His date of discharge was shown as 4 February 2016. 40. In compliance with Orders 032-1333 and General Court-Martial Order Number 352 the applicant was discharged and as required by regulation, he was issued a DD Form 214 containing the following pertinent information: * Block 12c (Record of Service – Net Active Service this Period) – 9 years, 5 months and 20 days * Block 23 (Type of Separation) – Discharge * Block 24 (Character of Service) – Bad Conduct * Block 23 (Separation Authority) – Army Regulation 635-200, chapter 3 * Block 28 (Narrative Reason for Separation) – Court-Martial (Other) 41. The applicant, through counsel, provided the following evidence for the Board’s review and consideration. a. Six character reference letters that were included during his court-martial proceedings. (1) Mr. EOM, states he is an honorably discharged Soldier and formerly active in the AGR program. He is a combat Veteran who served in Afghanistan. He states his character has never been questioned within any Government agency or command. He is currently employed in information technology in the private sector. He has known the applicant since 2003 when he had daily encounters with him due to the performance of their jobs. He served with the applicant until his own deployment in 2006. The applicant was responsible for Soldiers and the performance of their duties as a division branch chief senior NCO. He planned and executed those plans flawlessly. He mentored Soldiers and officers. He found the applicant was a level-headed person who was relied on heavily by his superiors. During this period he witnessed the applicant lose his father after he spent much time traveling to and from Wisconsin to care for him and attend to his needs including making funeral arrangements. This was a stressful period for the applicant yet he managed to maintain his composure and mentor his subordinates through their own difficult life experiences of marriage, children, ailing parents and deployments. Concerning the applicant’s court-martial he believes the charges the applicant was convicted of does not meet the big picture intent of the UCMJ. At the time, he wrote the applicant should be receiving treatment for his service- connected PTDS not being held as a prisoner. Finally concerning the trail itself, he feels the prosecution "steam rolled the defense." (2) A Master Sergeant (MSG) LDW wrote a statement on behalf of the applicant addressing her statement to the Commander, Fort Lesley J. McNair. She states she has approximately 26 years of service and is a budget execution manager. She previously worked with him at the NGB where she encountered him as the noncommission officer in charge (NCOIC) of a branch in the NGB G3 Operations Section. He was a caring and responsible branch NCOIC overseeing briefings, training, and branch charts and data collection in support of current operations overseas. He routinely briefed senior and general officers. She witnessed the wear and tear on him when he was called upon to care for his ailing father making frequent trips to Wisconsin prior to his father’s passing. He maintained his composure during this difficult and sad period. She requested the applicant be granted clemency and that his court-martial confinement sentence be reduced, his discharge upgraded and medical retirement reinstated. She is aware he suffers from service-connected PTSD, depression, anxiety and that he has central nervous systems issues for which he requires medical treatment. She does not believe his court-martial sentence is fair and that he should also be reinstated in rank. She wants the Board to know justice will be served when the court-martial sentence is overturned and he is granted full clemency. (3) A Major GJG wrote he was the applicant’s immediate supervisor for nearly 2 years. The applicant always took full responsibility for his actions continuously striving to better himself and the branch he supervised as the NCOIC. At the time he had served for 17 years. He respectfully requests leniency based on the tragic nature of the applicant’s incidents. (4) The applicant’s sister wrote a statement requesting her brother be granted clemency because he is a loving, caring and supportive brother and an integral part of their extended family. He is a role model to younger members of the family. She admits her brother made some mistakes in life, but she does not believe the crimes he committed warranted the extreme punishment he received during the court-martial. Her brother is ill and his medical conditions are crippling him especially the PTSD. He cannot lose his medical benefits after serving for so many years. He needs help. He originally received a medical discharge, which she claims should still be honored by granting him clemency. She strongly believes he ought to be medically retired, with his rank and pay restored. She believes he earned his rank and it should be restored to honor his many years of service to the Nation. She does not think the courts favorably honored his many years of service when it made its decisions. Based on his offenses, she thinks he should have received a reprimand because the sentence he received does not fit the crimes he was accused of committing. She concludes by stating his family will continue to support him but it is difficult without his retired pay and medical benefits. (5) The applicant’s mother wrote on his behalf requesting clemency and asking that he be released from prison. She acknowledges her son may have made some mistakes; however, he is generally a good person who served our Nation for 27 years. His service was honorable. It was during his service that he was diagnosed with PTSD and other medical conditions requiring medical treatment. With an honorable discharge her son would be eligible for medical benefits, retired pay and restoration of rank. She concludes by saying she and her family are prepared to support the applicant and will encourage and motivate him to have a successful transition. He’ll need help from the Department of Veterans Affairs. (6) The applicant’s nephew also provided a character reference statement requesting he be granted clemency. He states the applicant has always supported him helping him grow and mature. He also asks the Board to reinstate the applicant’s rank, military medical retirement and associated pay benefits based on the applicant’s 27 years of selfless service to the Nation. The applicant is an integral part of the family and his extended family will assist him when he transitions from prison. b. Counsel also provided excerpts from the Commonwealth of Virginia codes supporting his position that the various State courts would have provided the applicant with greater leniency because of his first time offenses. These statutes or codes are available for the Board’s review. c. Counsel provides miscellaneous documents and police records discrediting the applicant’s main accuser, his former spouse. These documents are also available for the Board’s review as evidence. They will not be further addressed in this record of proceedings. 42. On 22 May 2017, the Army Review Boards Agency staff psychiatrist rendered a medical advisory opinion as required by law based on the diagnosis of PTSD. She reviewed all the evidence presented by his legal counsel, his military personnel and service treatment records and allied evidence including his VA records through the Joint Legacy Viewer. She states the applicant does have a diagnosis of PTSD and an anxiety disorder, not otherwise specified. His PTSD condition was found to be medically fitting and did not warrant a medical separation. His condition of anxiety disorder, not otherwise specified was found to be unfitting with a rating of 50 percent during the medical separation process. The VA assigned a rating of 50 percent to his PTSD also claimed as depression, anxiety and memory loss. She cites his VA psychologist, dated 1 March 2017, who stated: "In my opinion, [the applicant] was struggling with symptoms of combat related PTSD which negatively impacted his marital and family relationships and contributed to the criminal behavior that effectively ended his career…" The ARBA psychiatrist reviewed all the evidence rendering a medical opinion stating to the Board the applicant’s diagnosis of PTSD does not mitigate his offenses leading to his BDC. She states, "PTSD is not mitigating for the offenses of adultery, failure to honor financial debts or domestic violence." She acknowledges counsel provided studies showing a correlation between combat related PTSD and an increased incidence of domestic violence. She states, "It is important to note that such studies only demonstrate correlation and do not establish direct causation." She also states his diagnosis of anxiety disorder, not otherwise specified does not mitigate the offenses leading to his BCD: adultery, failure to honor financial debts and domestic violence. She states, "Research has shown that the misconduct stemming from PTSD is typically based on a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premediated misconduct or misconduct that continued for an extended period of time." 43. On 23 May 2017 the applicant and counsel were mailed a copy of the ARBA psychiatrist’s advisory opinion. On 19 June 2017, the applicant’s counsel responded with a rebuttal statement. To begin he states, in effect, the ARBA psychiatrist’s medical advisory opinion should be disregarded in its entirety because the ARBA psychiatrist advisory is contrary to the opinions of other experts who have treated the applicant. a. Counsel referred the applicant’s application and the ARBA psychiatrist’s advisory to a third party for their review. The third party is a former military medical officer who is now retired and in private practice. The third party physiatrist or counsel’s psychiatrist provided counsel with his credential statements and professional resume which are available as evidence for the Board to consider and review separately. b. Counsel’s psychiatrist opines the applicant’s PTSD is a relevant and mitigating factor in his conduct that led to the charges being referred for court-martial. He also states the applicant likely had post-concussion syndrome based on the applicant’s exposure to a blast in Afghanistan. Counsel used multiple direct quotes from his psychiatrist’s opinion to support his contentions. The counsel’s psychiatrist stated, "[The applicant’s] aberrant conduct is best explained as the product of significate neuropsychiatrist and medical disorders that impaired his decision-making processes under conditions of overwhelming stress.” He continues by stating, "[The applicant] manifested difficulties with thinking, mood, concentration, memory, and sleep." c. Counsel’s psychiatrist opines the applicant was not able to detect decrements or deficiencies in his performance. (The applicant’s NCOERs do not support counsel’s statements.) Counsel states, “The cumulative and synergistic effects of [PTSD], post- concussion syndrome and metabolic disease diminished his capacity to manage the intensely stressful and confusing circumstances of a dysfunctional marriage and family life. Counsel opines the Agency psychiatrist failed to take these facts into consideration. d. The illnesses the applicant suffers from are documented by the VA and DoD. The DoD and the U.S. Army acknowledge that PTSD, post-concussion syndrome and related conditions were contributing factors in the applicant’s misconduct. It is counsel and his psychiatrist’s opinion that the Agency psychiatrist failed to assess the impact of the illnesses on the applicant’s behavior; therefore, the Agency psychiatrist opinion is wrong because the applicant’s illnesses due mitigate his conduct based on their professional opinion. e. Counsel’s psychiatrist opines that military medical providers and the Agency psychiatrist failed to take into consideration the effect of a concussion or concussive syndrome on the applicant based on his expose to a blast in combat resulting in a TBI. f. Counsel’s psychiatrist states PTSD and post-concussion syndrome are directly linked. The DoD currently is conducting research to ascertain how a TBI precedes and contributes to the symptoms of PTSD. He further opines the applicant has not received an appropriate evaluation for TBI or post-concussion syndrome which, counsel states, "Is directly germane to the matter of whether the punishment imposed by the Court- Martial was excessively harsh, which we contend that it was." As the applicant was court-martialed and not transferred to the TDRL, he did not receive subsequent periodic medical evaluations which would have provided opportunities to assess post- concussion symptoms. g. Counsel then renders a comparison of the various psychological evaluations the applicant received and continues to discredits the Agency advisory by stating the advisory is illogical, unsound and absurd. Counsel opines it was the applicant’s PTSD that negatively impaired his ability to handle his marital and family relationships. He further opines it was the PTSD that led to the applicant’s criminal behavior and denounces the Agency’s advisory. (It is noted the Agency advisory did list all the applicant’s charges and that the advisory considered all his offenses in their totality, not just the offenses for which he was convicted by court-martial.) h. Counsel then refutes the Agency advisory by comparing it to the guidance provided in Secretary of Defense Hagel’s memorandum which discusses a nexus between PTSD and the misconduct that underlies a Service member’s discharge. Nowhere in the guidance did Secretary Hagel refer to a "direct causation" of PTSD toward one’s misconduct as the Agency advisory seems to support. He then provides scenarios supporting how a psychological injury could cause PTSD and from that develops his argument that there is a nexus between the applicant’s misconduct and his diagnosis of PTSD. i. Counsel then presents an argument stating the Agency psychiatrist was biased when rendering the advisory to include the advisory shows moral disapproval of applicant’s various acts of misconduct. Counsel states, "It is clear that the Agency Psychiatrist is predisposed against ever finding PTSD to be a mitigating factor in a case of alleged domestic violence regardless of the facts in the case." Counsel then presents his arguments supporting his contention that the VA and other medical providers’ medical advisories and medical assessments should be accorded greater weight during the Board’s deliberations than the Agency’s advisory. He concludes by stating, "The great weight of the evidence established that [the applicant’s] PTSD is relevant to the events leading to his Court-Martial and should be considered a mitigating factor." 44. Counsel provides a 14 June 2017 medical advisory summarizing the applicant’s clinical findings, impressions and recommendation. A medical doctor provided the advisory who shows through his resume and associated documents that he is a board certified member of the American Board of Psychiatry and Neurology. He then labors to describe his 40 some years of experience. He restates the applicant’s medical diagnoses as previously discussed in this record of proceedings. He states that post- concussion syndrome and PTSD are linked and that the Department of Defense is currently conducting research. He identifies various research studies supporting his statement. He opines the applicant did not receive an appropriate evaluation and treatment for TBI or post-concussion syndrome; therefore, it is not reflected in the MEB NARSUM. He further states, “[The applicant’s] aberrant conduct is best explained as the product of significant neuropsychiatric and medical disorders that impaired his decision-making processes under condition of overwhelming stress.” He opines he exhibited the neuropsychiatric symptoms upon his return from his 2003 deployment. He then provides his own medical diagnoses stating the applicant has mild neurocognitive disorder due to TBI, PTSD, and an unspecified anxiety disorder. He also has a bilateral adrenal adenomas with a 4 millimeter pituitary microadenoma, mild left ventricular hypertrophy, and a lower spine fracture. He concludes by stating, "The Agency psychiatrist failed to appropriately and adequately assess the impact of these illness and injuries on [the applicant’s] conduct and wrongfully determined that they do not mitigate the offenses." 45. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 46. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. BOARD DISCUSSION: 1. The Board determined the available records, to include those provided by the applicant through his counsel, are sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical advisory opinion, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the counsel's statements, the applicant's record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim, the review and conclusions of the medical advising official based on available medical records, counsel's response to the advisory opinion, and the additional medical opinions provided by counsel. The Board considered the letters and memoranda of support from family members and former colleagues that speak to his professionalism and his character. 3. The Board found insufficient evidence of in-service mitigating factors to overcome the applicant's serious misconduct, concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD and found insufficient basis for a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 4. In the absence of a basis for upgrading his character of service, the Board determined there is also no basis for any of the other relief he has requested, such as reinstatement on the TDRL, restoration of his pay grade, and issuance of documents showing he has an honorable discharge. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :RAS :LPI :RHD DENY APPLICATION 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 Regina A. Stradford 2/4/2020 CHAIRPERSON Signed by: STRADFORD.REGINA.ANN.1181244387 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. REFERENCES: 1. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 2. The Manual for Court-Martial (MCM) 2012 edition states military law consists of the statutes governing the military establishment and regulations issued thereunder, the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military commanders. Military law includes jurisdiction exercised by courts-martial and the jurisdiction exercised by commanders with respect to nonjudicial punishment. The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment and thereby to strengthen the national security of the United States. Each punitive article of the UCMJ has a maximum punishment. a. The maximum punishment for violating Article 92 (Failure to obey order or a regulation) of the UCMJ includes a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. b. The text of Article 128 (Assault) subparagraph (a) states any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct. Subparagraph (b) states any person subject to this chapter who (1) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or (2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon is guilty of aggravated assault and shall be punished as a court-martial may direct. The Manual for Court-Martial then defines assault (simple assault, assault consummated by a battery, assaults permitting increased punishment based on the status of the victim, assault consummated by a battery upon a child under 16 years of age, etc.) The term assault is further defined. The maximum punishment for a simple assault is confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. While the maximum punishment of assault consummated by a battery upon a child under 16 years includes a dishonorable discharge, forfeiture of all pay and allowance, reduction and confinement for 2 years. c. The text of Article 134 states though not specifically mentioned in this chapter, all disorder and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance by a general, special or summary court-martial according to the nature and degree of the offense, and shall be punished at the discretion of the court. For the element of adultery, the maximum punishment is a dishonorable discharge, forfeiture of all pay and allowance, reduction and confinement for 1 year. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and affirmed sentence ordered duly executed. a. Paragraph 1-14 states when a Soldier is to be discharged under other than honorable conditions; the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Chapter 5, Section II (Secretarial Authority), states the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 5. Army Regulation 15-80 (Army Grade Determination Review Board) provides that a grade determination is an administrative decision on behalf of the Secretary of the Army to determine the appropriate retirement grade, retirement pay, or other separation pay. The Board makes determinations for enlisted Soldier at time of separation, if warranted. The "highest grade served on active duty" is the grade to which a Soldier was actually promoted and paid pursuant to a lawful promotion. Service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was expressly for prejudice or cause, owning to misconduct, caused by nonjudicial punishment pursuant to Article 15, UCMJ and the result of the sentence of a court-martial. 6. Army Regulation 635-5-1 (Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service and the separation designator codes to be used for the stated reasons. * SPD KFF is the code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il * SPD JJD is the code used by enlisted personnel separating under the provision of Army Regulation, Chapter 3, Court-Martial 7. Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical standards. For anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to a medical evaluation board if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance. Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duties. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a physical evaluation board (PEB) as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The PEB will make the determination of fitness or unfitness and then based on law a Soldier will be medically separated or medically retired. 8. Army Regulation 635-40 establishes the Army Disability Evaluation System (DES) according to the provisions of Title 10, U.S. Code, chapter 61 and Department of Defense Directive 1332.18 (DES) states, in effect, when Soldiers are under investigation or are charged with an offense under the UCMJ that could result in a punitive discharge (dismissal, dishonorable discharge, BCD), they remain eligible to be referred to and complete the MEB phase of the DES. The PEB or the U.S. Army Physical Disability Agency (USAPDA), as applicable, will suspend adjudication or disposition when UCMJ action is initiated during the PEB or USAPDA review. These cases remain suspended until final UCMJ action is taken. Soldiers who are under investigation for or charged with a UCMJ offense that could result in a punitive discharge will be disenrolled on the date the punitive discharge has been approved by the general court-martial convening authority. //NOTHING FOLLOWS//