BOARD DATE: 14 July 2020 DOCKET NUMBER: AR20170018022 APPLICANT REQUESTS: in effect – * correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the following: * Block 25 (Separation Authority) – remove the entry * Block 26 (Separation Code) – change to show "KFF" (or equivalent designation) * Block 28 (Narrative Reason for Separation) – remove "unacceptable conduct" and insert "By Secretarial Authority" * referral into the disability evaluation system for consideration by a medical evaluation board (MEB) * personal appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * Counsel introductory letter dated 5 September 2017 * Counsel legal brief with index of exhibits A to SS. * Exhibit A: DD Form 214 * Exhibit B: Character reference letter from Mr. O.J. S____ C____ dated 30 June 2017 * Exhibit C: Character reference letter from Mr. C.E. R____ R____ dated 23 July 2017 * Exhibit D: E____ C____ Behavioral Hospital Psychiatric Outpatient Records dated 23 March, 30 March, 7 April, 15 April, 6 August, 10 August, 21 August, 28 August, 1 September, 8 September, 17 September 2015 * Exhibit E: F____ W____ B____ Medical Center Inpatient Records for the period 15 April through 21 April 2015 * Exhibit F: F____ W____ B____ Medical Center Inpatient Records for the period 12 through 13 June 2015 * Exhibit G: Applicant’s Service Treatment Records – Behavioral Health Records from by psychiatrist, Dr. K____ W____ (MD – medical doctor) * Exhibit H: Applicant’s Service Treatment Records – Behavioral Health Records by a licensed clinical psychologist, K____ D____, Doctor of Psychology (PsyD.) * Exhibit I: Applicant Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Complaint Form dated 31 August 2015 * Exhibit J: Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care) Applicant’s Command Directed Evaluation dated 14 September 2015 by Mr. P____ R____, Licensed Clinical Psychologist * Exhibit K: Memorandum, Headquarters (HQ), 7th Special Forces (SF) Group, U.S. Army Special Forces Command, Narrative Summary of Applicant’s Command Directed Evaluation dated 24 September 2015 by Major (MAJ) I____ L____, PsyD. * Exhibit L: Email, subject: Applicant’s Physical Profile Status Update, dated 7 December 2015 * Exhibit M: SF 600 – Applicant’s (Mental Health) Treatment Termination Summary dated 17 December 2015 * Exhibit N: Applicant’s HIPAA Complaint dated 23 June 2016 * Exhibit O: F____ W____ B____ Medical Center, Applicant’s Narrative Summary dated 9 May 2016 by Dr. J____ C____ * Exhibit P: Applicant’s Assessment from B___ N____ Clinic, PLLC, dated 20 July 2016 by C____ B____, Doctor of Philosophy (Ph.D.), Board Certified in Clinical Psychology * Exhibit Q: Summary of Applicant’s Treatment and Notification of Termination of Treatment dated 10 May 2017 by D____ M____, Ph.D., Licensed Psychologist * Exhibit R: Applicant’s statement undated * Exhibit S: Memorandum, HQ, 7th SF Group from Captain (CPT) R____G____, subject: Applicant Character Reference Letter, dated 29 November 2016 to U.S. Army Human Resources Command * Exhibit T: Applicant’s DA Form 2823 (Sworn Statement) undated, unsigned, and not authenticated by a witness * Exhibit U: Memorandum, HQ and HQ Company, Group Support Battalion, 7th SF Group from Staff Sergeant (SSG) M____H____, subject: Applicant Character Reference Letter, dated 1 December 2016 to HQ, U.S. Army SF Command * Exhibit V: Memorandum, Group Support Battalion, 7th SF Group, subject: Applicant’s Unqualified Resignation with enclosures dated 16 October 2015 * Exhibit W: U.S. Army Human Resources Command (HRC) email to applicant dated 10 February 2016, subject: Applicant’s Unqualified Resignation Status Update * Exhibit X: DA Form 67-10-7 (Company Grade Plate (O-1-O3; WO1-CW2) Officer Evaluation Report (OER) for the period ending 2 March 2016 * Exhibit Y: Memorandum for Record dated 29 March 2016, subject: Applicant’s Comments to Referred OER * Exhibit Z: Memorandum for Commanding General, 1st Special Forces Group, Fort Bragg, North Carolina dated 30 March 2016, subject: Applicant’s Request for Commander’s Inquiry * Exhibit AA: DA Form 1574-1 (Report of Proceedings by Investigating Officer) with enclosures dated 22 June 2016 * Exhibit BB: Memorandum for Applicant from Acting Commander (a brigadier general), HQ, U.S. Special Forces Command (Airborne) dated 29 July 2016, subject: General Officer Memorandum of Reprimand (GOMOR) * Exhibit CC: Letter from Law Office of MG, Public Attorney dated 10 August 2016 * Exhibit DD: County Court, Expungement Order, dated 15 November 2016 * Exhibit EE: Memorandum from Acting Commander, U.S. Army Human Resources Command (HRC) dated 23 September 2015, subject: GOMOR Filing Determination * Exhibit FF: Memorandum for Applicant from Acting Commander, HQ, 1st SF Command (Airborne) dated 2 November 2016, subject: Initiation of Elimination with supporting documentation * Exhibit GG: Memorandum from Staff Psychologist and Psychiatrist to Applicant’s Chain of Command dated 17 November 2016, subject: Command Directed Evaluation for Applicant * Exhibit HH: Memorandum from Staff Psychologist and Psychiatrist to Applicant’s Chain of Command dated 17 November 2016, subject: Memorandum of Clarification for Command Directed Evaluation for Applicant * Exhibit II: Letter from Applicant Counsel to Commander, U.S. Army HRC, dated 7 December 2016, subject: Rebuttal to Notification of Elimination Applicant * Exhibit JJ: Memorandum from U.S. Army Medical Department Activity, Fort Benning, Georgia, dated 19 January 2017, subject: Medical Evaluation Board (MEB) Response to MEB Qualification Question Regarding Applicant * Exhibit KK: Memorandum from U.S. Army Medical Department Activity, Fort Benning, Georgia, dated 19 January 2017, subject: Medical Evaluation Board (MEB) Response to MEB Qualification Question Regarding Applicant * Exhibit LL: Letter from Applicant’s Counsel to Commander, U.S. Army HRC dated 3 February 2017, subject: Rebuttal to Additional Medical Memorandum in Elimination Packet * Exhibit MM: Memorandum from Department of the Army (DA), Office of the Assistant Secretary Manpower and Reserve Affairs to Commander, U.S. Army HRC dated 1 May 2017, subject: Probationary Officer Elimination Case (Applicant) * Exhibit NN: Forensic Psychiatric Evaluation dated 12 July 2017 for Applicant * Exhibit OO: Psychiatrist Credentials and Resume * Exhibit PP: SF 600 dated 1 June 2015 * Exhibit QQ: Letter from B____ N____ Clinic, PLLC, dated 5 December 2016, subject: Synopsis of Services to Applicant * Exhibit RR: Letter, University of New Haven, Office of Graduate Enrollment, dated 19 July 2017, subject: Applicant Acceptance Letter * Exhibit SS: Family Photograph FACTS: 1. The applicant through counsel submitted an application under the provisions of Title 10, U.S. Code, section 1553 requesting the Army Discharge Review Board change the applicant’s narrative reason for separation and refer the applicant into the disability evaluation system. The Army Discharge Review Board does not have the authority to refer a record to the disability evaluation system. In light of its limitations, the staff of the Army Discharge Review Board transferred the applicant’s application with evidence to the Army Board for Correction of Military Records (ABCMR). The ABCMR functions under the provisions of Title 10, U.S. Code, section 1552 with Secretarial authority to correct a record or refer a record into the disability evaluation system for further medical assessment. A staff member of the ABCMR communicated by email with the applicant’s counsel who, in turn, consented to processing the application through the ABCMR. 2. Counsel states the applicant’s chain of command ignored Army regulations and objective medical data, discharging him through administrative channels instead referring him into the disability evaluation system. To assist the Board in its deliberation of evidence, the applicant obtained the service of a forensic psychiatrist, Dr. S____ B____ (Exhibit NN) who examined his medical history and provide an opinion to the Board. a. The applicant’s chain of command acted hastily during its administrative separation of the applicant ignoring objective medical evidence by multiple military behavioral health providers and independent civilian behavioral health providers who diagnosed him with major depressive disorder. The applicant’s narrative reason for separation shown on his DD Form 214 (unacceptable conduct) ignores the medical issues underlying the unit’s allegations of poor performance and petty misconduct. His narrative reason for separation tarnishes his reputation and ability to find suitable employment to support his family. b. Counsel alleges the applicant upon his arrival at his first unit as a commissioned officer experienced hazing and bullying by superiors in his unit. He arrived in early March and by late March 2015 he was hospitalized because he felt hopeless and was depressed. His diagnoses were major depression with adjustment disorder with mixed anxiety and depression. Counsel then articulates the applicant’s medical treatment history throughout his military service to include post separation. To facilitate a better understanding of the evidence presented by multiple behavioral health care providers, it is summarized later in this record of proceedings. c. The applicant was hospitalized three times during his short period of active duty service. His first inpatient psychiatric hospitalization was in April 2015 and he voluntarily agreed to enter the facility. The next two psychiatric hospitalizations were involuntary (under the provisions of the Baker Act). (The Baker Act is the Florida Mental Health Act of 1971 which allows involuntary institutionalization and examination of an individual initiated by judges, law enforcement, physicians or mental health professionals.) His second hospitalization was necessary after he expressed suicidal thoughts. The third hospitalization was necessary when he expressed thoughts of harming others (in his unit). Each hospital discharge record indicates he was suffering from depression. d. In July 2015, his treating psychologist modified his diagnosis from adjustment disorder to major depressive episode. Exhibit H contains her many medical treatment notes pertaining to the applicant. e. He underwent at least two command directed mental health evaluations. The first conducted on 14 September 2015 (Exhibit J) ignored the diagnosis of major depression and from his review of the applicant’s medical records and interview stated, in effect, the applicant does not meet the criteria for a formal mental disability and entry into the disability evaluation system was not warranted. This provider’s assessment was the applicant had an adjustment disorder with mixed anxiety and depressed mood and avoidance personality disorder with dependent traits. Counsel argues this assessment is a false representation of the medical evidence. On 17 November 2016 he underwent his second command directed mental health evaluation which was completed by a U. S. Air Force (USAF) medical provider who determined the applicant did not meet retention standards for continued military service. The provider also ignored the diagnosis of major depression concluding the applicant suffered from an unspecified personality disorder or a borderline personality disorder which did not warrant entry into the disability evaluation system. f. The applicant received treatment by at least eight behavioral health providers including personnel from the USAF Mental Health Clinic at Eglin, Air Force Base (AFB), civilian providers in the community at government expense, and the 7th Special Forces (SF) Group Mental Health Clinic during his 2 years of active duty service. g. Counsel discusses in detail the applicant’s experiences at his unit to include being reassigned multiple times to different duties with different supervisors. As his unit knew he was undergoing mental health treatment, counsel opines he was bullied and harassed by members of his unit. He was disliked and everything he did was scrutinized so he felt ostracized succumbing to feelings of hopelessness. He was so depressed he thought his only solution was to request an administrative separation – unqualified resignation of his commission. h. Counsel states the applicant received a referred officer evaluation report after he filed equal opportunity complaints against his unit leadership. Counsel points out numerous inaccuracies in the report including the rater identified on the report did not rate the applicant for the whole 12 month period. As the report was very negative, the applicant requested a commander’s inquiry and there is no evidence showing his commander initiated an inquiry in accordance with regulatory guidance. i. Counsel opines the applicant’s chain of command wanted to intentionally get rid of him so a senior commander directed an investigation into the applicant’s allegations of misconduct. Counsel asserts it was a witch hunt. At the conclusion of the investigation the applicant received a GOMOR seriously aggravating his state of depression, leading to his suicidal ideation. Counsel asserts each act of misconduct committed by the applicant is directly attributed to his declining behavioral health. Further, counsel states it was the applicant’s wife who committed theft, not the applicant. In fact, he was never found guilty of shoplifting and its mention in the GOMOR is unjust. j. The applicant was ultimately administratively separated for unacceptable conduct, receiving an honorable characterization of service. Counsel asks the Board to thoroughly review the forensic psychiatrist’s post-service assessment of the applicant’s mental health at exhibit NN and OO. The forensic psychiatrist found the applicant suffers from major depressive disorder from March 2015, his arrival at his unit, to the present day. His depressive symptoms persisted despite treatment. Within his report the forensic psychiatrist negates other providers’ diagnoses stating while the applicant may have suffered from a personality disorder, such a diagnosis does not exclude the diagnosis of major depressive disorder. k. Medical providers and the applicant’s chain of command erred when they did not refer him into the disability evaluation system for evaluation by a MEB for his diagnosis of major depressive disorder in accordance with Army Regulation 40-501 (Standards of Medical Fitness). Counsel asserts from reviewing the applicant’s medical records, he should have been referred under the provisions of paragraph 3-31 (Disorders with psychotic features), paragraph 3-32 (Mood Disorders) and paragraph 3-33 (Anxiety, somatoform, or dissociative disorders) of Army Regulation 40-501. Some of his medical providers and those responsible for completing command directed evaluations and associated reports opined the applicant did not deserve an MEB because he suffered from personality disorders and these type disorders are not boardable medical conditions. From his research, counsel stated there is no regulatory authority for the proposition that medical providers can ignore an MEB qualifying diagnosis and solely rely on a co-existing non-MEB qualifying diagnoses. He further opines the applicant is being penalized for suffering from a personality disorder in addition to his major depression. 3. On 12 August 2009 the applicant completed and signed DA Form 598 (Army Senior Reserve Officers’ Training Corps (ROTC) Nonscholarship Cadet Contract. It was an agreement between the applicant and the DA concerning his enrollment in the ROTC program at the Interamerican University of Puerto Rico – Aguadilla. The agreement required the applicant to enlist in the U.S. Army with assignment to the U.S. Army Reserve (USAR) Control Group. Additionally, upon satisfactory completion of the academic, military, and all other requirements of the U.S. Army ROTC program, a cadet may be appointed as a reserve office in the Army in the grade of second lieutenant (2LT). 4. On 27 October 2009 the applicant enlisted in the USAR in pay grade "Cadet." 5. The applicant’s military personnel file contains a one-page college transcript showing he attended the University of Puerto Rico in Aguadilla. He completed four semesters of academic work (including one summer semester) during the period from fall 2008 through fall 2009. The academic transcript states he was an undergraduate student. (In Army Docket Number AR2015004281 his evidence included a completed copy of his undergraduate transcript.) 6. The applicant was in the simultaneous membership program assigned to the 246th Quartermaster Company (USAR). On 21 May 2013 he was discharged from the USAR under the provisions of Army Regulation 135-178. He received an uncharacterized discharge. (His military record does not contain supporting documents as to why he received an uncharacterized discharge from the USAR.) 7. The applicant appealed to the ABCMR requesting reinstatement in the ROTC program at the University of Puerto Rico – Mayaguez and commissioning as an officer in the U.S. Army. The ABCMR denied his requests. The following facts are recorded in Army Docket Number AR20130011586 record of proceedings dated 20 February 2014, which is filed in his military personnel record. The evidence to support this docket number is filed within the Army Review Boards Agency, electronic Case Management Tracking System. * he was in his fourth year of his simultaneous membership program serving on a non-scholarship cadet contract * on 15 March 2012, an officer in the U.S. Army ROTC Cadet Command, Interamerican University conducted an informal investigation into the applicant’s acts of insubordination, disrespectful comportment to noncommissioned officers and officers, failure to follow orders and failure to comply and follow the Army Values * on 9 April 2012, he was notified by his commander that action had been initiated to disenroll him from the ROTC program for misconduct – disrespectful toward superiors while training * he was advised of his rights and elected to appear before a board of officers * on 2 May 2012, he appeared before the board of officers without counsel * board members noted he had a history of absenteeism in his ROTC record * the board found the applicant did not take ownership of his faults and constantly provided excuses as to why he was not at fault for all accusations presented against him * the board found him immature and that he did not understand the Army values because he provided false information in his sworn statement * on 25 May 2012 he completed the degree requirements for a Bachelor of Arts in Secondary Education * the board recommended disenrollment * on 23 July 2012, the U.S. Army Cadet Command directed his disenrollment from the ROTC program based on his undesirable character * he was released to his USAR troop program unit 8. On 21 July 2013 the applicant graduated from the National University, San Diego, California with a Master of Criminal Justice. 9. On 3 January 2014, the Virginia State University (Senior ROTC Program), Petersburg, Virginia appointed a formal board of officers to hear evidence and determine if the applicant should have been disenrolled from the University of Puerto Rico – Mayaguez in 2012. (It appears the applicant filed an appeal to the U.S. Army Cadet Command concurrent with his application to the ABCMR. The applicant’s appeal was granted by Cadet Command.) The applicant received a memorandum formally notifying him of his due process and appellate rights. He formally acknowledged receiving written notification. 10. On 24 January 2014 the formal board met to hear evidence. He was represented by civilian counsel. In turn his witnesses were heard by the board members. The board recommend the applicant be retained in ROTC as a non-scholarship cadet and given an opportunity to continue to earn his commission. The board acknowledged while a cadet he successfully completed training and was awarded the Airborne Badge and Air Assault Badge. Additionally, while awaiting an appellant review he earned a Master’s degree showing he was resilient. 11. On 9 May 2014 he completed DD Form 2807-1 (Report of Medical History) showing he required a medical examination for a commission. The examining location was at Fort Lee, Virginia. He indicated he had no history of depression, had not been evaluated or treated for a mental condition, attempted suicide or used illegal drugs or abused prescription drugs. He did state he received an uncharacterized discharge in May 2013. A medical provider reviewed his medical history and determined at the time there was no need for him to undergo a psychological consult. 12. On 10 May 2014 (emphasis added) the U.S. Army Senior ROTC Instructor Group at Virginia State University, Petersburg, Virginia issued Orders 129-10 discharging the applicant from the USAR for the purpose of accepting a commission in the U.S. Armed Forces effective 11 May 2012 (emphasis added). 13. On 10 May 2014 the U.S. Army Senior ROTC Instructor Group at Virginia State University issued the applicant a memorandum appointing him as a Reserve commissioned officer of the Army. The memorandum is authenticated by a lieutenant colonel. He was directed to complete a DA Form 71 (Oath of Office – Military Personnel). Accordingly, he completed DA Form 71. He was commissioned in the Ordnance Corps. 14. On 16 June 2014, HQ, U.S. Army Cadet Command, Fort Knox, Kentucky issued the applicant Orders 167-004-A-7C60 ordering him to active duty effective 21 September 2014 to attend school. Further, he was assigned to the 7th SF Group located at Eglin AFB with a projected reporting date of 4 March 2015. His total active duty commitment was 6 years. 15. The applicant attended the basic officer leader course at Fort Lee, Virginia from 22 September 2014 through 4 February 2015. Upon graduating from the course he received a DA Form 1059 (Service School Academic Evaluation Report). In summary he satisfactorily achieved course standards. His course instructor and evaluator, a captain (CPT), stated in Item 14 (Comments) that: [The Applicant] has the minimal basic understanding of maintenance and ammunition. He struggles to research and do self development [sic] to ensure personal and mission success…will have difficulty professionally if he does not learn to seek assistance, do proper research, self develop [sic], and gain a better understanding of his profession both tactically and technically. He has passed the course meeting the bare minimum academically. 16. The applicant applied to the ABCMR requesting correction to his date of rank to 2LT, date of rank to first lieutenant (1LT) and sending his record to a special selection board for promotion consideration to CPT. After reviewing the evidence of record and an advisory from HRC, the Board adjusted his date of rank to 2LT and promoted him to 1LT with an effective date of rank of 26 August 2014 as recorded in AR20150004281. The Board denied his request for a special selection board. 17. On 27 August 2015 the U.S. Army HRC issued Orders B-08-503466 promoting the applicant to 1LT with an effective date of 26 August 2014 and a date or rank of 26 August 2014. These orders state the promotion was directed under the provisions of ABCMR AR20150004281. 18. According to his Officer Record Brief (ORB) he arrived at his first duty station and unit Company B, 7th SF Group on or about 4 March 2015. His duty title is shown as executive officer. On 4 May 2015 he was reassigned to 1st Detachment, HQ Detachment, 7th SF Group with duty as the executive officer. 19. On or about 29 March 2016 he received his first annual OER covering the period from 4 March 2015 through 2 March 2016, a 12 month period. His principal duty title was company administrative and supply officer for a group support battalion, HQ and HQ Company, 7th SF Group. This OER is a referred report. His rater determined his overall performance was unsatisfactory stating his performance was sub-standard and not commensurate with an officer of his grade. He accomplished very little, he lacked follow-through, failed to act on implied tasks and had poor decision making skills. The rater made the following pertinent comments: * character (adherence to Army Values) – he had a self-centered character; took recognition from the work of others exaggerating his own contributions; pursued personal interest; and responded poorly to retraining * presence – exhibited unsatisfactory military bearing; lacked appropriate deportment; failed to follow orders and failed to report to work/duty as ordered * intellect – demonstrated attention to detail completing an investigation for the supply officer; failed to coordinate with other adjacent units * leads – demonstrated poor military bearing, failed to complete assigned tasks and duties; multiple incidents of failing to report to duty at his appointed place and time * develops – created a positive work environment showing respect for others; however, he was concerned with his self-interests and his career; failed to develop subordinates * achieves – successfully completed duties as Financial Liability Officer; failed at completing assigned tasks; failed at following orders and multiple coordination actions 20. His OER senior rater for the aforementioned period determined the applicant was not qualified to perform his duties. He stated the applicant’s personal and professional conduct were not commensurate with what is expected of an officer in the U.S. Army. He stated, "He has zero potential for further service in the military. Do not retain." 21. The applicant appealed his referred OER stating he was not rated by his identified rater for 12 months as shown on the report. He had two raters during the period. He states his first rater should have completed an OER for the period March through September 2015. He outlines the regulatory guidance supporting his contentions. He continues stating his rater, CPT R____ T____, conducted counseling sessions stating, "[His] primary duties were to focus on my medical and mental health treatment and to process what was then an unqualified resignation from the Service." He continues in his rebuttal stating, "That my medical and mental health conditions required extensive treatment. The treating providers have determined that my conditions do not meet the requirements to a Medical Evaluation Board (MEB), but instead recommended administrative separation as my conditions complicated successful service." He argues his chain of command knew his mental health conditions interfered with his ability to complete assignments and tasks. He concludes by stating some of his rater’s comments are biased and prejudiced toward him. 22. On 22 April 2016 the commanding officer of HQ, 7th SF Group appointed an investigating officer to conduct an informal investigation pursuant to Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) into allegations of the applicant’s misconduct. The investigating officer completed his investigation and prepared a written response stating he found the following: * applicant failed to report or departed while not authorized from his assigned place of duty on numerous occasions which was supported by documentary evidence * applicant falsified sick call slips on 21 February 2016 and on 4 April 2016 presenting them to his chain of command causing him to miss 72 hours of work * applicant entered a secure area with his private cell phone violating security policies * applicant disobeyed a direct order of a superior to not enter a secure area with his personal cell phone * on or about 7 April 2016, the applicant made threats he would injure people in his unit requiring intervention by law enforcement personnel * applicant failed to self-report he entered into a pre-trial diversion for retail theft occurring on 17 July 2015 (Army Regulation 600-20 (Army Command Policy) paragraph 4-23 states commissioned officers will submit a written statement for any conviction for violating criminal law) 23. On 22 June 2016 the appointing authority approved the investigating officer’s report as documented on DA Form 1574-1 (Report of Proceedings by Investigating Officer). The investigating officer recommended the applicant be considered for elimination from the service based on his misconduct and that he receive a GOMOR. 24. On 29 July 2016 the applicant received a GOMOR for theft, falsifying sick call slips and failing to be at his assigned place of duty as per the results of an informal investigation. The theft occurred on 8 September 2015 when he was arrested for retail theft. He falsified sick call slips on 21 February and on 4 April 2016. He also failed to obey a lawful order of his supervisor and left his place of duty without proper authorization. The GOMOR states his behavior demonstrates a complete lack of judgment and responsibility and he is a discredit to the U.S. Army. The commanding general further stated the applicant’s behaviors caused him to consider the applicant’s suitability to serve as a commissioned officer. He advised the applicant of his right to submit a written rebuttal to the GOMOR. 25. On 3 August 2016 the applicant acknowledged receipt of the GOMOR and elected to submit matters in mitigation. 26. On 14 August 2016 with the support of civilian counsel the applicant submitted a rebuttal statement identifying his mental health issues as the mitigating factor for his acts of misconduct. He had been hospitalized for psychiatric treatment on three occasions and participated in an intensive outpatient treatment program. During the short period at his unit he had approximately 100 behavioral health appointments. His diagnosis is major depressive disorder with frequent thoughts of suicide. In conclusion counsel requested the applicant’s GOMOR be filed in his local file. a. It appears the onset of his mental health issues occurred with his arrival at his unit. The applicant experienced superiors who made disparaging comments about his mental health further causing him emotional strain. He was disliked by subordinates, peers and supervisors causing him to feel isolated, depressed, and frightened leading him to dislike group events. His chain of command did not try to understand him which further led to a decline in his performance and mental health. b. He was never convicted of theft or any other crime. In fact the surveillance video shows it was his wife who attempted to return the items. He submitted a county court document showing he had successfully completed a pre-trial diversion agreement. An email further clarifies the applicant never entered a plea of guilty or no contest and the case was dismissed by the State without prosecution. c. Concerning falsification of sick slips, his treatment for suicidal ideation is a mitigating factor because he was trying to avoid being at the unit. d. Concerning disobeying a lawful order or regulation, failure to report to his assigned place of duty and leaving his place of duty without proper authorization are based on allegations the investigating officer made in his investigative report. As no specific dates are recorded for the aforementioned acts of misconduct in the GOMOR, counsel asserts regulatory processes where not followed in the preparation of the GOMOR. Counsel states it was the applicant’s behavioral health and his mistreatment by superiors that led him to avoid the unit and his place of duty. 27. On 29 September 2016 the commanding general stated he had reviewed the applicant’s rebuttal statement and supporting evidence. From his review he directed the filing of the applicant’s GOMOR in his Army Military Human Resources Record (AMHRR). 28. On 25 October 2016 the applicant’s company commander requested his superiors initiate elimination action for the applicant. He restated the results of the investigation including specific facts concerning retail theft. 29. On 2 November 2016 the commanding general signed a memorandum informing the applicant he was required to show cause for his retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges) based on his misconduct, moral or professional dereliction, or in the interests of national security. Within the memorandum the applicant’s specific acts of misconduct are identified by date, location, policy memorandum or regulation. He stated the applicant’s actions were conduct unbecoming of an officer in the U.S. Army. He advised him of his rights to include seeking the assistance of military counsel or civilian counsel at his personal expense. He advised him the Deputy Assistant Secretary of the Army (Review Boards) was the deciding official for elimination action and his characterization of service. Finally, he may be required to undergo a medical examination to assess the effects of post-traumatic stress disorder or traumatic brain injury provided he had been deployed in support of a contingency operation. 30. On 17 November 2016, a military psychologist from 96th Medical Group (USAF), Eglin AFB prepared a memorandum pertaining to the applicant’s command directed mental health evaluation. He noted the applicant was provided with the legal requirements, the command directed evaluation process, limits of confidentiality and potential career impact. The applicant expressed understanding of his rights and the process. The psychologist conducting the evaluation was Captain A____ F____, USAF, who was supervised by a USAF major (MAJ). a. The command directed evaluation was to determine if an MEB was warranted, or if he was medically cleared for administrative separation. The command initiated separation action because of his overall low quality of work performance, history of legal problems (falsifying sick slips, arrested for refund fraud, failure to report for duty) and violating known administrative policies or regulations. The psychologist stated the applicant has an unsuiting mental health diagnosis based on a review of objective data and the applicant’s military medical records. b. There is evidence he received treatment for a boardable mental health diagnosis; however, the objective data and collateral interview do not support his diagnosis of major depressive disorder. From his review, the applicant demonstrated a history of inconsistent reporting of his symptoms to multiple providers. c. During the command directed evaluation, he underwent psychological testing and was seen by two other licensed mental health providers. They (the three mental health providers) confirmed the diagnosis of unspecified personality disorder and ruled out borderline personality disorder. His prognosis was severe and his ability to function in a military environment was significantly impaired. He was medically deemed unsuitable for continued military service because his diagnosis does not meet retention standards for continued military service. d. The provider recommended duty restrictions including no leave, temporary tours of duty, no access to government weapons, no access to classified material, and rescind his security clearance. His duty assignment should be adjusted until his separation date. Finally, he should be processed for administrative separation. 31. On 2 December 2016, a clarification memorandum was provided by Captain A____ F____, USAF, to the applicant’s senior leadership in 7th SF Group. He stated the diagnosis of an unspecified personality disorder does not meet retention standards and renders the applicant administratively unsuitable for military service. His diagnosis of unspecified personality disorder does not render him medically unfit under the provisions of Army Regulation 40-501 (Standard of Medical Fitness). As such, he does not require a MEB and was cleared for administrative separation. 32. On 19 January 2017 an MEB psychologist at U.S. Army Medical Department Activity, Fort Benning, Georgia prepared a memorandum concerning the applicant’s request for an MEB. The memorandum was forwarded through medical channels to the applicant’s group commander. There are two memorandums dated the same date with one addressing the separation of enlisted personnel under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-13 and the other removing the referral to enlisted administrative separations. The medical data provided in each memorandum is the same. a. He was seen by multiple providers who diagnosed him with adjustment, mood, anxiety, and personality disorder conditions. On 14 September 2015 and on 17 November 2016 he was assessed against the MEB criteria of Army Regulation 40- 501. During both reviews it was determined he did not meet the criteria for a MEB. The medical providers determined the source of his misconduct was his personality disorder. They did not attribute mood or anxiety disorders as the source of his misconduct. b. The MEB psychologist affirmed the previous reviews stating the applicant does not meet the criteria for an MEB. His issues with functionality are the result of his personality disorder, and a personality disorder is not a boardable medical condition in accordance with Army Regulation 40-501. c. His diagnostic progression from reviewing his medical treatment records shows his initial diagnosis of an adjustment disorder on 20 March 2015. This shows he had significant difficulty transitioning to active duty and his unit. He was diagnosed with differing depressive and anxiety disorder conditions since reporting to his unit and the evidence shows his treatment was unsuccessful. He was hospitalized for inpatient behavioral health treatment, participated in intensive outpatient therapy treatment and was prescribed psychotropic medications. The reason his medical and behavioral health treatment was unsuccessful was because medical providers were not treating the underlying personality disorder which led to his many difficulties in his unit. d. His characterological flaws were both pervasive and inflexible, chronic, unwavering, and of long durations. His personality disorder causes him clinically significant distress or impairment in functioning in the areas of cognition, affectivity, interpersonal functioning, and impulse control. The specific areas of concern include: * highly uncomfortable in certain situations eliciting responses that are uncharacteristic of the general population * extreme and uncalled for emotional reactions when confronted by persons of authority and power, his peers and subordinates * unable to tolerate everyday life circumstances and events without becoming emotionally unstable and requiring assistance in maintaining a minimal level of functionality * actively seeks dissimilar providers, sometimes via subterfuge reporting differing facts to providers * tendency to operate in the extreme such as cutting others off when he is in distress * uninterested in concrete means offered to address his situation and then blames others for his shortcomings e. Under the Diagnostic and Statistical Manual of Mental Disorders (DSM), Fourth Edition (DSM-IV) an unspecified personality disorder impairs one’s ability to function and is not amenable to treatment. 33. The DA Army Ad Hoc Review Board, comprised of senior military officers, reviewed the applicant’s elimination case recommending his involuntary elimination from the U.S. Army. The DASA (RB) reviewed the applicant’s elimination case file and the recommendation of the Ad Hoc Review Board. On 1 May 2017 the DASA (RB) directed the applicant’s elimination for misconduct and moral or professional dereliction in accordance with Army Regulation 600-8-24, paragraph 4-2b with an honorable characterization of service. 34. On 4 May 2017, Orders 124-0500 were issued by the U.S. Army Installation Management Command discharging the applicant from the Regular Army effective 12 May 2017. 35. Accordingly on 12 May 2017 the applicant was issued a DD Form 214 documenting his honorable service. He served on active duty for 2 years, 7 months and 22 days. He had 4 years, 10 months and 23 days of inactive service. His DD Form 214 contains the following pertinent information: * Block 23 (Type of Separation) – discharge * Block 25 (Separation Authority) – Army Regulation 600-8-24, paragraph 4-2b * Block 26 (Separation Code) – JNC * Block 28 (Narrative Reason for Separation) – unacceptable conduct 36. The applicant and counsel provided the following evidence which has not been previously discussed within this record of proceedings. While not every document is summarized below, all evidence was made available to each Board member for their personal review during the deliberation process. a. Exhibit B. CPT OJ S____ C____ provided the applicant with a character reference letter dated 30 June 2017. He states he has known the applicant for 20 years since elementary school. He served with the applicant in ROTC in Aguadilla, Puerto Rico and they were in the same USAR unit. While in school they played on sports teams together witnessing the applicant’s athletic abilities and skills as a team player. In ROTC they both participated in a Ranger Challenge Program competing against other schools. The applicant helped him develop his physical fitness training so he could score higher on the physical fitness tests. The applicant sought to learn and grow from his experiences in the ROTC program and USAR unit including earning the Airborne Badge and Air Assault Badge. He also received a brigade coin for scoring more than 300 points on the Army Physical Fitness Test. He received an Army Achievement Medal during this period. He comes from a well-educated family and puts his wife and daughter, his family first. He is a productive member of society and will overcome his current challenges. The applicant made mistakes as a young junior officer, but he opines the applicant’s unit leadership should not have immediately put him into an executive officer position of a company out of basic officer leadership course. He is aware the applicant received a derogatory separation from service. This derogatory separation (unacceptable conduct) will hinder his ability to find employment and support his family. He also expresses his concern that during the applicant’s hospitalization no member of his chain of command contacted his spouse to offer her support. b. Exhibit C. A character reference letter from CE R____ R____ dated 23 July 2017 stating he was an undergraduate student at the Interamerican University of Puerto Rico and a paternal half-brother to the applicant. The applicant is very proud of his military accomplishments including completing Airborne and Air Assault Badge requirements. He is aware that the applicant received negative information in his separation records and truly believes it does not represent the man he knows. The applicant is a father and husband who provides for his family. He has accomplished much in a limited time period. He is the first in their family to graduate with a Master’s degree. In effect, he asks the Board to favorably consider the applicant’s request to change his narrative reason for separation. c. Exhibit D. E____ C____ Behavioral Hospital – Psychiatric Outpatient Records with multiple dates of treatment authenticated by Dr. D____ M____ (DM), a Doctor of Osteopathic Medicine (DO). In Dr. DM’s opening statement she states the applicant was in therapy at Eglin AFB and was previously seen by CPT B____ and MAJ L____ at the 7th SF Group. He had seen by two providers in the past. The applicant did not have a case manager. * on 23 March 2015, outpatient psychiatric admission for depression, anxiety and stress due to employment because he can’t adjust; he was put into a position without adequate training and is resentful * he cannot rest, feels increasingly depressed, feels socially isolated and feels guilty because his wife is also having adjustment issues * he reports no prior history of psychiatric hospitalization or treatment * he feels inadequate because he is responsible for others and does not know his job * low self-esteem with no social support other than spouse * he experiences work-related triggers to his anxiety such as being in formation; he ruminates and worries * doctor’s psychiatric assessment was adjustment disorder with mixed anxiety and depression; and major depressive episode, moderate (emphasis added) * treatment plan admit to intensive outpatient treatment program and medication protocol therapy because he is having increasing difficulty functioning within his current employment * on 30 March 2015, applicant reported he was not doing well and it was the Army that was the primary source of his not doing well; he expressed wanting to get out of the Army; does not think there is any solution other than leaving the Army * he is anxious and dysphoria, but not exhibiting panic attack(s); not able to take medication for sleep the night before the mornings he has physical fitness training because subordinates passed him during the running phase and his superiors pointed this fact out (he was humiliated) * expressed his disdain for the military; he is emotionally and physically exhausted due to minor insults occurring at work * doctor discussed possible hospitalization * psychiatric assessment remained adjustment disorder with anxiety and depression; and major depressive episode, moderate to severe * prescribed Prozac * he requested provider contact MAJ L____ at his unit because he felt he was an advocate and might facilitate communication with his commander * provider made contact with MAJ L____ * on 7 April 2015, his chief complaint was he overheard personnel at work making jokes about depression and suicidal thoughts; he thought they were referring to him directly and it upset him * his spouse intervened speaking to the colonel after he received what he described as an abrasive text message * he was moved to a different supervisor but remained in the same unit * he sought the support of counsel (lawyer) * he still seeks separation from the military * psychiatric assessment remained as indicated on 23 March 2015 * on 15 April 2015, he appears to be rapidly declining even with workplace modifications and his initial response to antidepressant medication * he reports self-harm behavior by punching himself * he is irritated and stressed because he still sees his former commander/supervisor because they have to use the same door * stated he could not go back to his unit and wanted out of the military * he did not feel he could see military behavioral health providers * he was depressed, anxious, irritable, overwhelmed, anxious and cannot return to work or provide for his family * hospitalization was discussed and he agreed it was needed * psychiatric assessment remained as indicated on 23 March 2015 * he was hospitalized and eventually returned to see Dr. DM; her medical notes restart on 6 August 2015 * on 6 August 2015, he had depression that was worsened by employment stress * he had previously been hospitalized for inpatient stabilization due to his inability to function * he was emotionally exhausted due to work related anxiety and stress; his cognition was grossly intact, but with decreased concentration; he had panic attacks; he ruminates about his situation at work because he was not adequately trained, he hesitates to ask for help because he feels his command is not supportive * his diagnostic impression was major depressive disorder, severe; adjustment disorder with mixed anxiety and depression; and the plan was to admit him to an intensive outpatient treatment program for mental health * on 10 August 2015, the applicant was not in compliance with prescribed medications and reported things were better at work within his current command, but was still experiencing difficulty with his job * on 21 August 2015, he reported his spouse was also receiving mental health treatment and things were better at home * he was not in compliance with prescribed medication dosage requirements * he was stressed because he would not be leaving the military as he planned (unqualified resignation) because he had to undergo an MEB * on 28 August 2015, his level of stress was markedly diminished, he seemed relaxed and better rested and in no emotional distress denying feelings of hopelessness or despair; responding to medication with limited side effects; and desires to resign from the military * on 1 September 2015, stress level at work and home reduced so he feels less anxious; he is not feeling depressed and believes his mood improved; doctor observation his affect was mood-congruent; he was not feeling depressed and appeared fairly optimistic; informed by chain of command he would not undergo an MEB and would be allowed to resign his commission * on 8 September 2015, he self-reported he received a 4-page document from his military supervisor with his list of expectations causing him increased anxiousness because he was concerned he would not meet his new supervisor’s expectations * he was not in compliance with prescribed medications because he decided on his own to decrease Paxil without medical consultations * he also was showing anxiety for his pending departure from the intense out- patient psychiatric treatment program * on 17 September 2015, he was discharged from the intense out-patient psychiatric treatment program and a discharge summary was prepared * his diagnoses remained major depressive disorder, recurrent; most recently severe, but resolving and adjustment disorder with anxiety and depressed mood * his medications were Wellbutrin, Paxil and Restoril * he felt the milieu of the military was very difficult for him to endure d. Exhibit E. Applicant was admitted on 15 April 2015 to an inpatient psychiatric hospital under the provision of the Baker Act citing suicidal ideation and depression. (The Baker Act is the Florida Mental Health Act of 1971 which allows involuntary institutionalization and examination of an individual initiated by judges, law enforcement, physicians or mental health professionals.) He admitted to thoughts of self-harm which ultimately led him to the emergency room resulting in his admission. He had no previous episodes of depression or hospitalizations. He was admitted for safety, evaluation and treatment including group therapy and milieu therapy (psychotherapy in a controlled environment). His initial diagnosis was depression with suicidal ideation, not otherwise specified, based on situational employment and interpersonal relationship issues. His date of discharge was 21 April 2015. e. Exhibit F. He was admitted to the same inpatient psychiatric hospital on 12 June 2015 in a voluntary status after making statements he would harm himself by jumping off a bridge (suicide). He stated he had too much stress and pressure at work. Military medical personnel stopped his prescription of Prozac after his first hospitalization in April 2015. Without the medication, he was feeling much worse. At work he had been working on a big project and its due date was adjusted to an earlier date causing him to feel he just couldn’t handle it anymore. He reached out to military mental health providers who in turn recommended hospitalization based on his self-harm statements. Upon admission he was alert and oriented to person, place, situation and time. He was adequately dressed and groomed, pleasant and cooperative. His speech, language, vocabulary, and fund of knowledge were all within normal limits. He was admitted to the psychiatric unit for safety, evaluation and treatment. His diagnosis was depression, not otherwise specified. f. Exhibit G: At Eglin AFB his treating outpatient psychiatrist was Dr. K____ W____, MAJ, USAF. The applicant provided his military behavioral health records containing the following pertinent facts as recorded by Dr. K____ W____. * on 8 July 2015, he endorsed symptoms of depression, low mood much of the time, loss of interest, low energy, difficulty sleeping; clinical impression diagnosis was adjustment disorder with depressed mood; he did not require a MEB and administrative separation for other mental health conditions was recommended (emphasis added) * on 21 July 2015, continued endorsement of symptoms of depression; he reduced his intake of Prozac by himself because he felt he was not tolerating it well; his diagnosis changed from adjustment disorder with depressed mood to major depressive disorder, moderate, single episode (emphasis added); and new medications were started; there remained no requirement for an MEB * on 4 August 2015, he reported feeling very anxious and nervous related to work because he was under a lot of scrutiny by a CPT; he was very worried about messing up again at work and was afraid he would publically humiliate himself; he expressed feelings of it would be better if he were dead and was placed on the patient high interest roster; his diagnosis remained major depressive disorder, moderate, single episode; and there remained no requirement for an MEB * on 18 August 2015, he stated he was okay and his thought process was logical, linear and goal directed; he was in compliance with medication management; there were no changes to his diagnosis and no referral to an MEB * on 17 September 2015, presented to appointment saying he just couldn’t take it anymore after an interaction with a superior officer who he perceived as very stern with his voice raised while speaking to the applicant; he felt very demeaned and embarrassed to be addressed in such a manner in public; he interrupted his superior officer asking him to go to a private place, however the superior officer corrected him for interrupting him while he was speaking; he expressed thoughts of dying; there were no changes to his diagnosis and no referral to an MEB * on 17 September 2015, Dr. K____ M____ stated, "…he may have some character pathologies that complicates his presentation. Of note, he appears to be very sensitive to scrutiny and reprimand and easily destabilizes when meeting harsh assessment or if he perceives harsh assessment of himself." * Dr. K____M____ changed the diagnoses to: * major depressive disorder, moderate, single episode * adjustment disorder with mixed anxious and depressed mood * unspecified personality disorder (likely features of avoidance personality) (emphasis added) * his duty restrictions were no temporary tour of duty, no deployment, no permanent change of station, no bearing weapons * no referral to a MEB and recommended the applicant be considered for administrative separation for mental health conditions * on 25 September 2015, he continued expressing his difficulties at work including he was having difficulty keep up and did not have time for lunch nor was he given a break for lunch; he dreads going into work; his spouse requires his assistance getting to her own medical appointments contributing to his stress; medications were increased; and his diagnosis remained as stated on 17 September 2015 with continuing duty (profile) restrictions * on 2 October 2015, he was seen as a walk-in due to anxiety concerning group physical fitness activity – soccer; he was afraid of doing team activities so he left and did physical fitness training on his own, without authority, leading to a confrontation with his superior * Dr. K____ W____ stated he explored patient’s thought and feelings around his aversion to team sports, team and group activities, and the applicant had difficulty identifying what was fearful to him * his diagnoses remained as stated on 17 September 2015 * on 22 October 2015, Dr. K____ W____ reassessed his clinical impression/summary after an appointment with the applicant adding the diagnosis of a narcissistic personality disorder (emphasis added) to his previous diagnoses stating, "His personality disorder traits appear to be strongly impacting his function – more than his depression and anxiety episode." * his duty restrictions remained unchanged * there remained no requirement for a MEB * administrative separation for mental health conditions was recommended * on 25 November 2015, applicant stated his depressive symptoms were improving and work was going well to include he was getting along with others; there were no changes to his diagnoses as of 22 October 2015; no MEB recommendation; and his duty restrictions remained unchanged * on 24 February 2016, his spouse called provider informing him the applicant appears more depressed and was retreating to his bed more frequently * on 3 March 2016, he reported he was not doing well and was unhappy or angry with no motivation or energy; medical provider noted he presented with worsening symptoms of depression despite being on two psychiatric medications; a new medication was added; and his diagnoses remained as stated on 22 October 2016 with duty restrictions * on 31 March 2016, his provider noted no changes in medication, no new or adjusted diagnoses and continued stating there was no requirement for an MEB * on 20 April 2016, medical notes show his symptoms of depression were worsening despite being on three medications; diagnoses remained unchanged and he was not referred to an MEB; his duty limitations were continued * on 15 September 2016, medical notes show his mental health conditions and doctor recommendations remained unchanged; applicant did report increased desire to harm himself, but denied suicide ideation; and medications were adjusted by doctor * on 11 October 2016, stated he did not know what to do to feel "normal" and was very anxious about his pending separation from the Army; he described anxiety provoking situations including physical fitness training with others, group activities and concerned about what others thought of him; his diagnoses remained unchanged and there was no referral to a MEB * on 8 November 2016, Dr. K____ W____ changed the applicant’s diagnoses to an unspecified personality disorder (like features of avoidant personality and narcissistic personality disorder) and major depressive disorder, moderate, single episode (emphasis added) * he had not responded to medications as projected with insufficient improvement in his symptoms of depression and anxiety * his duty limitations remained unchanged and there was no referral to a MEB * his provider continued recommending the applicant be considered for an administrative separation for his mental health conditions e. Exhibit H: At Eglin AFB his treating outpatient licensed clinical psychologist was a civilian, K____ D____, PsyD. The applicant’s behavioral health medical records are comprehensive with detailed information provided by his psychologist concerning his interactions with military personnel in his unit and results of various behavioral health questionnaires and assessments. Upon reviewing his psychotherapy notes, his diagnoses remained as stated by his military psychiatrist noted above. f. Exhibits I and N contain two HIPAA complaints. On or about 27 May 2015 he filed a complaint against the 7th SF Group Psychologist, MAJ L____, for sharing his mental health information with another MAJ in the group leading to his removal from platoon leader consideration. He states he did not give his consent for MAJ L____ to discuss the status of his mental health with anyone. His second complaint was a follow-on complaint concerning the HIPAA violation on 27 May 2015 concerning the conduct of MAJ L____ who he asserts directed the applicant’s behavioral health treatment be removed from Eglin AFB and returned to providers in the Group. He knows this to be true because he had read his medical records. g. Exhibit J. On 14 September 2015 he was seen at the 7th SF Group Troop Medical Clinic by a civilian behavioral health provider for a command directed behavioral health evaluation. The duration of the appointment was 120 minutes. The provider had access to the applicant’s Armed Forces Health Longitudinal Technology Application (ALTHA) electronic medical records including input provided by staff at Eglin AFB. His command requested an evaluation for a fitness determination and his suitability to remain in service. Upon his comprehensive review including interviewing the applicant, he stated the applicant’s diagnoses were adjustment disorder with mixed anxiety and depressed mood (DSM code 309.28) and avoidant personality disorder (DSM code 301-82) (emphasis added). He had a history of poor coping skills, significant difficulty interacting with others to include his chain of command, and ongoing and longstanding pattern of social inhibition. He feels inadequate and is hypersensitive to negative evaluation. He is extremely uncomfortable in situations with increased social contact and exposure to evaluation leading to avoidant behaviors including running away from his military workplace rather than confront an uncomfortable situation. He repeatedly endorses a sense of not being as good as others. The provider stated, "[The applicant is crippled by overwhelming self-doubts and/or lack of self-confidence which have led to his anxiety and depression…" The provider ruled out post-traumatic stress disorder and traumatic brain injury. In his written assessment he concludes by stating the applicant does not meet the criteria for a formal mental disability (under the provisions of Army Regulation 40-501), thus he does not meet the criteria for a MEB or medical separation. He supports administratively separating the applicant. He also prepared a DA Form 3822 (Report of Mental Status Evaluation) for the applicant’s commander. h. Exhibit K. The 7th SF Group Command Psychologist, MAJ L____, prepared a written memorandum for the Group Executive Officer summarizing the findings and recommendation made during the applicant’s command directed mental health evaluation (See Exhibit J.). He stated an adjustment disorder is behavioral health symptoms in response to identifiable stressor(s) with significant impairment in social, occupational, or other important areas of functioning with individuals demonstrating marked distress that is out of proportion to the severity of the stressor. He defines an avoidant personality disorder as evidence of a pervasive pattern of social inhibition, feelings of inadequacy, and hypersensitivity to negative evaluation. He explains the applicant’s behavioral health treatment history since his arrival at the unit including periods of hospitalization for suicidal ideation. He states the applicant’s diagnoses were adjustment disorder with mixed anxiety and depressed mood and avoidant personality disorder. He concludes by stating the applicant is not suitable for continued military service and recommends the applicant be administratively separated. He also does not have a boardable health condition under the provisions of Army Regulation 40-501. i. Exhibit M: The 96th Medical Group (USAF) at Eglin AFB prepared a written summary of the applicant’s behavioral health treatment during the period from 11 June through 17 December 2015. The summary was required because the 96th Medical Group transferred responsibility for the applicant’s patient care to the 7th SF Group Mental Health Clinic. The transfer of responsibility was directed by senior leaders of 7th SF Group. The intent was to see if the applicant would better respond to behavioral modification by medical providers who had a better understanding of his unit and its mission. The applicant did agree to the transfer of his behavioral health treatment. The applicant’s initial diagnosis was adjustment disorder with mixed depressive and anxiety symptoms. At the 96th Medical Group (USAF) he saw three behavioral health providers and met the criteria for a major depressive episode, moderate to severe. He was not responsive to treatment and was then diagnosed with narcissistic personality disorder with avoidance and anti-social features. By December 2015, his depressive symptoms had improved and he was in partial remission. His licensed clinical psychologist, K____ D____, PsyD, concluding diagnoses were narcissistic personality disorder with avoidant and antisocial features and major depressive disorder moderate in partial remission. j. Exhibit O: On 8 April 2016 he was admitted to the F____ W____ B____ Medical Center for psychiatric inpatient hospitalization after law enforcement initiated a Baker Act because he threatened to harm members of his unit. During his initial intake interview he stated he was unhappy with his situation in the Army and was trying to get out. He denied making homicidal statements but stated he may have made statements about punching his boss. His point was his boss wouldn’t let him leave the work place to go see mental health as a walk-in patient so he thought he might have to punch someone. This was his third psychiatric hospitalization at the same medical center. His initial assessment was major depression based on employment and interpersonal relationship problems. He was admitted for safety evaluation, and treatment. He was discharged on 12 April 2016. His discharge assessment was depression with suicidal ideation, anxiety, and adjustment disorder. K. Exhibit P: On 20 July 2016, the applicant sought a private psychological assessment from a clinical psychologist because he believed he was not getting the help he needed from military providers. The clinical psychologist, C____ B____, Ph.D., stated he was seeking evaluation to assist with differential diagnosis and treatment planning. The applicant stated when he arrived at his new unit in March 2015 he was the target of hazing which led to his feelings of disillusionment with the Army, which worsened his mood. Additionally, he experienced bullying my members of his unit when it became known he was depressed. (1) He explained his psychiatric history since March 2015 when he saw a psychologist within his unit. After two months he transferred to another military provider for the period from May 2015 to January 2016. His second military provider diagnosed him with adjustment disorder. He stated he could not trust his second military provider. He also saw a counselor (psychotherapist) weekly. His military psychiatrist has prescribed multiple medications including Wellbutrin, Prozac, Valium, Paxil, and Attarax. (2) He was hospitalized in a psychiatric unit twice because officials initiated the Baker Act against him for threatening to harm himself or others. He had a third period of psychiatric hospitalization which he voluntarily agreed to attend. (3) During the psychological assessment and interview he endorsed significant depressed mood, anhedonia, thoughts of worthlessness/helplessness, trouble sleeping, and suicidal ideation. He also endorsed frequent intrusive, depressogenic thoughts. His wife said he was ruminative, angry and upset at home. (4) He stated he was getting out of the military and sought legal assistance to ensure he received an honorable discharge or possibly have a MEB. (5) He was administered the Millon Clinical Multiaxial Inventory (MCMI-IV). The psychologist reported he has longstanding feelings of inadequacy and sensitivity to what others think of him. She states, "People with this sensitivity may be socially inhibited and feel inept, leading to avoidance of work or places that involve socializing. He also may present as hypersensitive to rejection and ridicule… [The applicant’s] response pattern suggests that he may appear aloof or uninterested in relationships, and may demonstrate dependence on other or difficulty disagreeing with other, for fear of disapproval." (6) From her interview and administration of psychological tests her diagnosis was major depressive disorder, recurrent moderate, with mild anxious distress and avoidant personality disorder. His stressors where occupational and interpersonal. She recommend he should participate in Cognitive Behavioral Therapy or Acceptance and Commitment Therapy and undergo additional evaluation for medication management of depression. He underwent 21 therapy sessions with this provider who terminated his care for her own personal medical reasons. He transitioned to a new civilian psychologist. l. Exhibit Q. On 10 May 2017, he newest civilian psychologist, E____ C____, Ph.D. prepared a memorandum summarizing the treatment he provided the applicant during the period from March to May 2017. The applicant participated in six therapy sessions. There is evidence this provider was assisting or augmenting the applicant’s military behavioral health providers. This provider’s diagnosis of the applicant was major depressive disorder, recurrent moderate with moderate anxious distress. At termination of treatment the applicant showed mild improvement, but had yet to reach full stabilization. m. Exhibit R. The applicant provides his own personal statement chronologically outlining his history of unpleasant encounters with members of his unit to include his numerous supervisors. His unit failed to assign him a sponsor upon his arrival and his orders where changed reassigning him to another unit in the Group. His new unit was not prepared to in-process him. He was eventually in-processed and immediately started having negative encounters with his company commander who appeared to call him routinely to determine his location status. He continues to describe each negative encounter wherein he felt humiliated by his unit leadership. He had an emotional breakdown and called his wife who intervened on his behalf calling Elgin AFB Mental Health Clinic. This is the point where he began treatment to include seeing mental health providers at 7th SF Group. n. Exhibits V and W. On 16 October 2015, the applicant with the support of senior leadership in the 7th SF Group submitted a memorandum requesting an unqualified resignation of his commission. He stated he had a condition that makes day-to-day tasks and the ability to work under pressure a constant struggle. He said his condition inhibited his ability to think clearly, make sound decisions, and fulfill his obligations as a leader interfering with his duty performance. As he cannot complete his assigned tasks, it has negatively impacted the mission of his unit. He requested a waiver to tender his qualified resignation earlier than prescribed by regulation and to waive his active duty service obligation. The U.S. Army HRC returned his request without action because he submitted it late based on his proposed separation date. Regulation requires the date of application and date of recommended separation be more than 180 days. o. Exhibit NN. Post separation from the U.S. Army, the applicant underwent a forensic psychiatric evaluation on 12 July 2017 by a psychiatrist, Dr. R____ B____ per the request of his counsel. He reviewed evidence provided by the applicant’s counsel and conducted his own interviews of the applicant and his spouse. Upon conclusion he found the applicant had a pattern of psychiatric symptoms meeting the criteria for a diagnosis of major depressive disorder which he confirmed. Additionally, he suggested a diagnosis of personality disorder maybe appropriate (emphasis added). * on 23 March 2015, shortly after arriving at his military unit he was diagnosed with an adjustment disorder with mixed anxiety and depression; and major depressive disorder, moderate by Dr. D____ M____ * on 15 April 2015, Dr. D____ M____ referred him to a facility for inpatient psychiatric evaluation and treatment out of concern for his safety * he was hospitalized from 15 April through 21 April 2015; upon discharge he was to follow up with behavioral health care * on or about 12 June 2015, he experienced a deterioration in his mood and returned to the hospital (under the provisions of the Baker Act) * on or about 21 June 2015, he was discharged * he saw K____ D____, PsyD (at Eglin AFB) on a weekly basis and her diagnosis was major depression, recurrent episode, moderate in partial remission; he had collaborative treatment with Dr. K____ W____ who prescribed medication (paroxetine and hydroxyzine, as needed for anxiety; Dr. K____W____ diagnosed major depressive disorder, moderate, single episode and adjustment disorder * he deteriorated in his ability to function and returned to intensive outpatient therapy and continued medication management by Dr. K____ W____ who noted he was not progressing on Prozac, and could not tolerate higher dosages * on 14 September 2015, after a command directed evaluation his diagnoses were adjustment disorder with mixed anxiety and depressed mood; and avoidant personality disorder with dependent traits; this provider did not diagnosis major depressive disorder and determined he was unsuitable for continued military service; he did not have a boardable mental health condition for consideration by a MEB * three other mental health providers submitted a memorandum echoing the 14 September 2015 findings * on 22 October 2015, Dr. K____ W____ changed his medications including adding Wellbutrin and continuing paroxetine * on 24 November 2015, Dr. K____ W____ added the diagnosis of unspecified personality disorder * on 8 April 2016, he was involuntary admitted to inpatient psychiatric hospitalization (under the provisions of the Baker Act) medications now included bupropion * on 20 July 2016, he sought care from a private psychologist who diagnosed him with major depressive episode, recurrent, moderate; he saw her until 9 March 2017 * on 17 November 2016, he underwent a second command directed evaluation by Captain A____ F____, USAF, wherein administrative questionnaires were completed by the applicant showing he was severely depressed, yet the medical provider did not continue the diagnosis of depression clearing the applicant for an administrative separation * on 22 March 2017, yet another provider, D____ M____, Ph.D. diagnosed him with major depressive disorder, recurrent, moderate, with moderate anxious distress * the medical provider administered multiple diagnostic tests indicating the applicant exhibited moderate to severe symptoms of depression; moderate symptoms of anxiety; and he has severe personality traits characterized by affective brittleness and marked, exaggerated response to routine stressors 37. In the processing of this case, a medical advisory was obtained from the Army Review Boards Agency (ARBA) staff psychologist who is a PsyD. and a member of the American Board of Professional Psychology. The psychologist reviewed the evidence of record in accordance with contemporaneous regulations, U.S. Army directives, Department of Defense policies or instructions, and instructional memorandums identified as references in the advisory. The specific questions the psychologist addressed were: Did a behavioral health condition exist at the time of the applicant’s service? Did the behavioral health condition fail to meet the standards of Army Regulation 40-501, warranting separation through medical channels? And, were the behavioral health conditions a mitigating factor in the applicant’s misconduct resulting in his discharge from the U.S. Army? a. With access to his Department of Veterans Affairs (DVA) records through the Joint Legacy Viewer, the applicant has diagnoses of major depressive disorder, migraines, low back pain, and other medical conditions. He receives treatment at the DVA for his service-connected conditions which started in March 2018. Currently, he has a disabling rating of 90 percent for his service-connected disabilities. b. The psychologist reviewed the evidence of record restating his military history including his dismissal in 2012 from an ROTC program for misconduct (disrespectful toward superiors) and frequent absences from training. He applied to the ABCMR for reinstatement to the ROTC program and a commission. The ABCMR denied his request. However, in 2014 he was appointed a Reserve commissioned officer of the U.S. Army and entered active duty attending the officer basic course. The applicant’s evaluator identified his weaknesses and stated his concerns for the applicant’s potential in the U.S. Army. c. In March 2015 he arrived at his unit and shortly thereafter he was in crisis. He was diagnosed with adjustment disorder with anxiety and depressive mood. The psychologist then identifies his periods of hospitalization, outpatient treatment, psychotherapy, and various mental health diagnoses during his brief period of service. d. The psychologist also outlined his disciplinary history including his various acts of misconduct identified via an investigation, receipt of a GOMOR, referred OER and initiation of involuntary elimination action by his chain of command. e. On 17 November 2016 he underwent a command directed behavioral health evaluation resulting is a diagnosis of an unspecified personality disorder. On 19 January 2017 a staff member (military psychologist) of an MEB reviewed the applicant’s records including his ALTHA medical records. The MEB psychologist found the applicant did not meet the criteria for an MEB noting the applicant’s issues with functionality were a result of his personality disorder, not his emotional state. f. The ARBA psychologist acknowledged the applicant had a behavioral health condition at the time of his elimination. His diagnosed personality disorder did not meet the retention standards, but it is not a boardable condition. She states, in effect, major depressive disorder is a boardable condition if it is not responsive to treatment creating occupational impairment. Upon reviewing his medical records, he had periods of partial remission of his symptoms with exacerbation coinciding with difficulties at work due to his personality disorder. His military record prior to his first active duty assignment shows he had difficulty with authority, the military structure and completion of requirements. The psychologist opines he continued to have difficulties upon entry onto active duty based on a long standing pattern of behavior consistent with diagnosis of a personality disorder. g. After reviewing the evidence and understanding the directives, the psychologist states neither major depressive disorder nor a personality disorder are mitigating factors for the applicant’s misconduct. It is acknowledged he receives treatment for service- connected major depressive disorder from the DVA and associated benefits. However, a determination by the DVA does not automatically mean military medical disability separation or retirement is warranted. The DVA compensates for disabilities determined to be unsuiting while the Department of Defense compensates for conditions that are unfitting. 38. On 20 April 2020 as required the staff of ARBA sent the applicant and his counsel a copy of the medical advisory for their review and rebuttal. On 30 April 2020, counsel responded on behalf of the applicant. Counsel stated the Board should reject the ARBA medical advisory because the ARBA psychologist like other military medical providers explained away a board-qualifying diagnosis by emphasizing a non-qualifying diagnosis. The second reason to reject the advisory is it offers conclusory statements concerning the applicant’s medical diagnosis as not being a factor in his misconduct. He states, "…the command’s failure to include a contemporaneous psychiatric study examining the mitigating nature of serious mental health diagnoses on petty misconduct." He acknowledges the applicant has a personality disorder as confirmed by the forensic psychiatrist. However, the DVA rates the applicant at 70 percent for his service- connected major depressive disorder. He argues Army Regulation 40-501, paragraphs 3-31a, 3-32 and 3-33 require referral to an MEB based on persistence or recurrence of a treatment resistant anxiety disorder affecting duty performance. Finally, he argues the applicant’s chain of command failed to follow administrative procedures of Army Regulation 600-8-24, paragraph 4-3 requiring a psychiatric study to determine the mitigating extent of the diagnosis on the applicant’s behavior (misconduct). He opines when the applicant was provided adequate support, he excelled. 39. Counsel provides new evidence warranting consideration by the Board. He submits part of the applicant’s DVA rating decision showing he has a 70 percent evaluation for major depressive disorder, recurrent episode, severe; generalized anxiety disorder; and adjustment disorder with mixed anxiety and depressed mood from the day after his date of separation, 13 May 2017. Within the DVA partial document its states the applicant underwent a DVA examination on 19 January 2017, 4 months prior to his discharge. The DVA further explains when reasonable doubt exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove a claim, the degree of disability will be resolved in favor of the claimant. On 13 June 2018, he underwent another DVA examination confirming the 70 percent evaluation for his mood disorder, not otherwise specified. On 5 November 2019, his rating of 70 percent for major depressive disorder, recurrent episode, severe; generalized anxiety disorder; and adjustment disorder with mixed anxiety and depressed mood was confirmed by the DVA. 40. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 41. Title 38, Code of Federal Regulation, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 42. Title 10, U.S. Code, section 1552 (Correction of military records: claims incident thereto) states in section 1552e no payment may be made under this section for a benefit to which the claimant might later become entitled under the laws and regulations administered by the Secretary of Veterans Affairs. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined there is sufficient evidence to grant partial relief. 1. The Board found sufficient evidence to grant the applicant’s request to correct his DD Form 214, for the period ending 12 May 2017. The Board found that the preponderance of the evidence indicates that the applicant’s behavioral health conditions mitigated his misconduct that resulted in the discharge narrative reason of “unacceptable conduct”. The Board partially disagreed with the ARBA Medical Advisory opinion that the applicant’s behavioral health conditions did not mitigate the misconduct. While the Board acknowledges that the applicant’s misconduct was related to a personality disorder, the Board applied liberal consideration and found that evidence, including VA medical records showing service connection for MDD on the day after separation, counsel’s statements and the applicant’s positive performance while being treated for his worsening behavioral health conditions, were sufficient to warrant a change in narrative reason to Secretarial Authority. 2. The Board found insufficient evidence to grant the applicant’s request to submit his case to the DES for medical boarding. The Board agreed with the ARBA Medical Advisory Opinion that major depressive disorder is a boardable condition if it is not responsive to treatment creating occupational impairment, but there is insufficient contemporaneous medical evidence that the applicant suffered from MDD, rather that the applicant had periods of partial remission of his symptoms with exacerbation coinciding with difficulties at work due to his personality disorder. The Board agreed with the ARBA Medical Advisory opinion that his military record prior to his first active duty assignment shows he had difficulty with authority, the military structure and completion of requirements. The psychologist opines he continued to have difficulties upon entry onto active duty based on a long standing pattern of behavior consistent with diagnosis of a personality disorder, not MDD. 3. The Board carefully considered the applicant's request for a personal appearance hearing. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. OARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 1. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214, for the period ending 31 July 2016 to show: * item 23 (Type of Separation) “Release From Active Duty” vice “Discharge,” * item 25 (Separation Authority) “Army Regulation 600-8-24, paragraph 2-5” vice “Army Regulation 600-8-24, paragraph 4-2b,” * item 26 (Separation Code) “KFF” vice “JNC”, and * item 28 (Narrative Reason For Separation) "Secretarial Authority" vice “Unacceptable Conduct.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to: * the applicant’s request for referral into the disability evaluation system for consideration by a medical evaluation board (MEB) * the applicant's request for a personal appearance hearing. 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, USC, section 1552 states 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. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. Section 1552e states no payment may be made under this section for a benefit to which the claimant might later become entitled under the laws and regulations administered by the Secretary of Veterans Affairs. 2. Title 38, U.S. Code, section (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 3. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 4. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions when it is deemed necessary, and the Director or the ABCMR may grant a formal hearing whenever justice requires. 5. Army Regulation 40-501 (Standards of Medical Fitness) effective 19 January 2017 provides information on medical fitness standards for induction, enlistment, appointment, retention, retirement and related policies and procedures. Chapter 3 describes the various medical conditions and physical defects which may render a Soldier unfit for further military services. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of duty; may compromise or aggravate the Soldier’s health or well-being, if they were to remain in the military Service such as frequent clinical monitoring; may compromise the health or well-being of other Soldiers; and may prejudice the best interest of the Government if the individual were to remain in the military Service. Soldiers who do not meet the required medical standards will be evaluated by a medical evaluation board. a. A Soldier will not be referred to a medical evaluation board or a physical evaluation board because of impairments that were known to exist at the time of acceptance in the Army and that have remained essentially the same in degree of severity and have not interfered with successful job performance. b. The general policy states that possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service. Physicians are responsible for referring Soldiers with conditions in this chapter to a medical evaluation board. c. Soldiers with disqualifying conditions listed in Chapter 3 who do not meet the required medical standards will be referred to the disability evaluation system in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). d. 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 (emphasis added), resulting in interference with social adjustment or with duty performance. e. 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. f. 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. g. Paragraph 3–35 (Personality, exhibitionism, transvestism, voyeurism, other paraphilia, or factitious disorders; disorders of impulse control not elsewhere classified) states a history of, or current manifestations of, personality disorders render a Soldier administratively unfit rather than unfit because of physical illness or medical disability. These conditions will be dealt with through administrative channels, including Army Regulation 600–8–24. Commanders will address any questions or concerns regarding the application of these diagnoses to the appropriate supporting medical provider. h. Paragraph 3-36 refers to adjustment disorders and states situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability (emphasis added), but may be the basis for administrative separation if recurrent and causing interference with military duty. 6. Army Regulation 600-8-24 (Officer Transfers and Discharges) sets the basic authority for the transfer or discharge of officers from active duty. The regulation states in: a. Paragraph 1-22, when an officer’s tour of active duty is terminated due to discharge, retirement or release from active duty the period of service will be characterized as "Honorable, "General (Under Honorable Conditions)", "Under Other Than Honorable", or "Dishonorable." The character of service will be predicated on the officer's behavior and performance while a member of the Army. Characterization normally will be based on a pattern of behavior and duty performance rather than an isolated incident. However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty. b. Paragraph 1-24, if a commissioned officer is being processed for release from active duty, separation, or retirement or has been referred for elimination action, when it is determined that the officer has a medical impairment that does not meet medical retention standards, the officer will be processed as set forth in foregoing paragraphs. (1) Paragraph 1·24a, a commissioned or warrant officer under investigation for an offense chargeable under the Uniform Code of Military Justice that could result in dismissal or punitive discharge may not be referred for or continue disability processing unless: * the investigation ends without charges * the commander exercising proper court-martial jurisdiction dismisses the charges * the commander exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence (2) Paragraph 1-24c, in the case of an officer processed for separation or retirement for misconduct whose physical disability evaluation results in a finding of unfitness and a recommendation that the officer be separated or permanently retired, the Secretary of the Army or his designee may direct that either the separation or retirement action under this regulation or the disability action take precedence. c. Paragraph 4-2b, action may be or will be initiated for eliminating officers in the Active Army for misconduct, moral or professional dereliction, or in the interests of national security. An under other than honorable conditions discharge will normally be issued when an officer is discharged for an involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance as a result of an act or acts of misconduct, including misconduct for which punishment was imposed. d. Paragraph 4-3, an officer referred or recommended for elimination under this chapter who does not meet medical retention standards will be processed through both the provisions of this regulation and through the medical evaluation board (MEB)/physical evaluation board (PEB) process as described in paragraph 1- 22. If a physical or mental condition develops after an officer has been recommended for involuntary separation or after the Board of Inquiry proceedings are completed the officer’s commander will immediately notify the U.S. Army Human Resources Command, Fort Knox, KY. e. Chapter 5 pertains to officer miscellaneous types of separations prescribing dispositions and procedures concerning miscellaneous types of separations whereby an officer may be dismissed, released, separated and discharged from active duty, 7. Army Regulation 635-5-1 (Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, and Department of Defense/Army policy) and reasons for the separation of Soldiers from active duty. Is prescribes when to enter an SPD codes on the DD Form 214. SPD codes are three-character alphabetic combinations that identify reasons for separation. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DOD and Military Services to assist in the collection and analysis of separation data. The regulatory or other authority for separation will be entered in block 25 of the DD Form 214 in accordance with Army Regulation 635-8 (Separation Processing and Documents). The SPD code will be entered in block 26 of the DD Form 214 per Army Regulation 635-8 and this regulation. The narrative reason for separation will be entered in block 28 of the DD Form 214 exactly as listed in the tables of this regulation with no deviation authorized. SPD codes are not intended to stigmatize an individual in any manner. * SPD code KFF for officer personnel separating states the narrative reason is “Secretarial authority” and the regulatory authority is to be used by Headquarters, Department of the Army message or other directive authorizes voluntary separation (emphasis added) in an individual case or category of cases * SPD code JNC for officer personnel separating states the narrative reason is "Unacceptable conduct" and the regulatory authority is Army Regulation 600-8- 24 8. Army Regulation 635-8 (Separation Processing and Documents) prescribes policy and procedural guidance relating to transition management. It consolidated the policies, principles of support, and standards of service regarding processing personnel for transition. The DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior action, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on terminations of a Soldier’s service. When separation is ordered, the separation approval document must be present for transition processing these included the Enlisted Record Brief or Officer Record Brief, separation approval documents, separation orders and any other document authorized for filing in the personnel records. a. For Block 25 (Separation Authority) obtain the correct entry from the regulatory directives authorizing separation. b. For Block 26 (Separation Code) obtain the correct entry from Army Regulation 635-5-1, which provides the corresponding SPD code for the regulatory authority and reason for separation. c. For Block 28 (Narrative Reason for Separation) it is based on the regulatory or other authority and can be checked against the cross reference tables in Army Regulation 635-5-1. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170018022 32 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1